Court of Appeal: ‘Surreal’ appeal in respect of ‘cross notice of motion’ dismissed

About this case:

• Citation:
  [2025] IECA 137
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Brian O'Moore

Delivering judgment for the Court of Appeal, Mr Justice Brian O’Moore explained that “applications to court described as motions have been made by litigants for over 500 years. What did not feature, for almost all of that period, was that persons meeting a motion felt obliged to issue their own ‘cross notice of motion’ with the sole purpose of asking the court to refuse the original motion… This dispute is a surreal one. The issuing of a ‘cross notice of motion’ is utterly unnecessary at best and a deliberate and senseless multiplication of paperwork at worst. It serves no useful purpose.”

Background

The appellant made various claims against the defendants including that they inter alia sold him an umbilical system for £49,224.00 sterling which was not fit for purpose and fraudulently manufactured invoices which alleged that money was due and owing in respect of same.

The appellant failed to deliver his statement of claim within the time stipulated by the Rules of the Superior Courts and by motion dated 12 June 2024, the fourth to eighth defendants (the John J. Quinn interests) issued a motion seeking to dismiss the claim for want of prosecution for failure to deliver a statement of claim.

On 17 December 2024, the appellant issued a “cross notice of motion” seeking to strike out inter alia the John J. Quinn interests’ motion and seeking an order for permitting him to continue with his proceedings.

The day after the “cross notice of motion” issued, the matter came before the High Court.

The High Court

The High Court was informed that a statement of claim had been delivered by the appellant and so the motion brought on behalf of the John J. Quinn interests could not proceed in its original form. 

An application was made to amend the notice of motion to claim relief striking out the proceedings on grounds that they disclosed no sustainable cause of action, were an abuse of process and were bound to fail.

The appellant opposed that application on the basis that he wanted his “cross notice of motion” to be heard in advance of any motion brought by the respondent where he alleged he would be prejudiced if his motion failed due to his claim being struck out.

Mr Justice Brian Cregan having refused to accept that argument, the appellant applied for liberty to amend his cross notice of motion. 

The High Court also refused that application where no coherent reason was given for amending the “cross notice of motion” and acceded to the John J. Quinn interests’ application to amend their motion, allowing until 13 January 2025 for the appellant to file a replying affidavit.

The appellant appealed the order of the High Court, alleging inter alia bias and prejudice on part of the trial judge, that he was denied fair procedures, that the amendment of the John J. Quinn interests’ motion would render his cross notice of motion moot, and that no notice of motion was brought to amend the John J. Quinn interests’ original notice of motion.

The Court of Appeal

The Court of Appeal considered that the issues between the parties ultimately reduced to one: whether the High Court judge was mistaken in refusing to amend the appellant’s “cross notice of motion” to reflect amendments to the original notice of motion brought by the John J. Quinn interests. 

Mr Justice O’ Moore recounted that when the appellant was asked what advantage the “cross notice of motion” provided to him, the appellant replied that if he did not bring any such motion a point would be taken against him by the other side. In this regard, the judge remarked: “It need hardly be said that, if any such point was taken, it would be dismissed out of hand.”

Having examined the appellant’s grounds of appeal, the court found that none of them “even go close to providing a reason to upset the order of the trial judge”.

Finding that while it was correct that no notice of motion was brought to amend the original notice of motion issued on behalf of the John J. Quinn interests, the judge considered: “That is not in itself a fatal objection to the making of the order amending the original notice of motion. It is somewhat unreal to submit that an eminently sensible amendment to the original notice of motion (to take into account events that had occurred after that motion was issued) is to be set aside simply because a further notice of motion was not issued in order to translate the original notice of motion into a different version of itself.”

The court found that the other grounds advanced by the appellant were so vague as to be meaningless and/or unsustainable and that no relevant legal principles had been set out in a coherent fashion by the appellant in his notice of appeal.

Determining that on that analysis alone the appeal would fail, the court observed that given the delivery of the statement of claim, the real issue between the parties on the motion brought by the John J. Quinn interests had become whether or not these proceedings should be struck out as against those defendants and so the amendment permitted was “a sensible and apposite one” which did not cause prejudice to the appellant.

Mr Justice O’Moore considered that the amendment of the motion permitted the true dispute between the parties to be decided in the context of that motion alone rather than in the context of a separate motion brought at a later stage, which would have involved the incurring of additional cost and effort on part of both the appellant and the John J. Quinn interests.

Noting that the appellant’s challenge had been reduced to one in respect of Mr Justice Cregan’s refusal to allow the appellant’s “cross notice of motion” to be amended, the court contemplated the appellant’s argument that at a later date, Mr Justice Cregan had changed his mind and permitted the amendments sought.

Mr Justice O’Moore recognised that the change of heart on the part of the trial judge did not mean that his original decision should be overturned in circumstances where the appeal would fail in any event.

The judge also pointed out that Mr Justice Cregan had not in fact stated that his original decision was in any way incorrect: “Instead, he appears to have been trying to find a practical and mutually acceptable solution to a procedural impasse.” 

Notwithstanding, the court expressed that it did not agree that the amendment of the “cross notice of motion” was appropriate as this “endorsed the concept of a type of motion which should not be encouraged”.

Finally, Mr Justice O’Moore highlighted that even if the parties had agreed that the “cross notice of motion” should now be amended on appeal, “the court is entitled to withhold any implicit approval of a device which simply adds to procedural complexity and expense without any logical purpose”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Harrington v SRF Limited & Ors [2025] IECA 137