Court of Appeal: Consent order granted for the withdrawal of appeal prior to judgment despite case being fully argued

Court of Appeal: Consent order granted for the withdrawal of appeal prior to judgment despite case being fully argued

The Court of Appeal has granted a consent order for the withdrawal of a case with no order as to costs despite the fact that a full hearing of the appeal had occurred.

Judgment was reserved following the appeal hearing but the parties resolved all issues prior to the delivery of the judgment. Accordingly, the parties requested that the Court of Appeal not deliver its reserved judgment in the matter.

In a decision from 25 May 2023, Mr Justice Maurice Collins held that where an appeal was fully argued, a court was entitled as a matter of principle to give judgment even if it was against the wishes of the parties. However, in the specific circumstances of the case, the court held that it would accede to the request of the parties.


The appeal related to a personal injuries action taken by the plaintiff who alleged that he had been hit on the head by a stray golf ball while spectating a championship at County Sligo Golf Club at Rosses Point. The plaintiff had been unsuccessful in the High Court, where it was held that no liability attached to either the Club, the organiser of the event or the individual golfer who hit the ball.

The plaintiff appealed the decision and a full hearing occurred. The Court of Appeal reserved its decision and was scheduled to deliver judgment on 12 May 2023. However, in advance of judgment being handed down, the plaintiff’s solicitors informed the court that the parties had resolved the dispute. As such, it was requested that the court refrain from delivering judgment and to instead strike out the proceedings with no order for costs.

Mr Justice Collins noted that where an appeal had been fully argued, a court was entitled to proceed to give judgment as a matter of principle, irrespective of whether the case had settled or whether the parties wished for the ruling (see McDonagh v Sunday Newspapers [2017] IESC 59). Further, it was said that, where a case dealt with matters of general public importance, a court may proceed to deliver judgment.

The court also referred to Barclays Bank PLC v Nylon Capital LLP [2011] EWCA Civ 826, which held inter alia that in determining whether to hand down a judgment, a court could consider how far the preparation of a judgment had gotten by the time of the request. Further, it was necessary to consider the interests of the parties and weigh up any arguments for and against the delivery of judgment.

It was also noted that a relevant factor may be where the subject matter related to allegations of dishonesty and malice (see Jabbar v Aviva Insurance UK Ltd [2022] 4 WLR 68).

High Court

Mr Justice Collins held that the factors identified in Barclays Bank PLC v Nylon Capital LLP and Jabbar v Aviva Insurance UK Ltd were relevant to the exercise of the court’s discretion in the present case. Further, while it was not determinative, the fact that the parties were ad idem in the present case was a significant factor.

Additionally, the court recognised that there was a strong public interest in encouraging the settlement of disputes, however belatedly that might occur. Although it was not suggested that the settlement was conditional upon judgment not being handed down, the court commented that it may still undermine the status and value of the settlement.

The court also commented that it was unfortunate that the parties could not resolve the matter earlier since considerable judicial time had been expended in preparation of the judgment.

In a footnote, Mr Justice Collins commented that it was assumed that agreement was only reached immediately before the court was notified of the settlement. It was suggested that, even if a formal settlement was not reached, a court should be made aware of ongoing negotiations in order to consider pausing the preparation of the judgment.

Applying the legal principles to the case, the court held that the facts did not, of themselves, warrant a finding of liability. However, there was also no principle or rule of law which excluded a finding of liability. Each case turned on their particular facts, the court said.

While the court’s judgment dealt with issues of general significance, the principal focus was on the resolution of the particular issues between the parties based on the specific set of facts presented.

As such, the court held that it would not give judgment in the appeal. The court did not reach this conclusion “without hesitation” but stated that proper weight had to be attached to the fact that the parties had agreed the position.

It was held that the parties were not commercial entities and the litigation must have been stressful for them. Equally, the delivery of the judgment may have some impact on the settlement (which was not opened to the court). As such, the court held that the factors marginally outweighed the public interest in publishing the judgment.


The court concluded by stating that, in may cases, the balance was likely to tilt the other and it was important for litigants to understand that the court may proceed to deliver judgment after an appeal had been fully argued notwithstanding the subsequent position of the parties.

Accordingly, the court permitted the withdrawal of the appeal, vacated all previous costs order and made no order in respect of the appeal.

Campbell v. County Sligo Golf Club and Ors. [2023] IECA 132

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