Supreme Court: Test for adducing new evidence/argument on appeal in summary cases confirmed
The Supreme Court has confirmed the proper legal test when an appellate court is considering admitting new evidence or argument on appeal. Delivering the judgment in the case, Mr Justice John MacMenamin held that a more flexible approach needs to be taken by an appellate court when considering new issues in an appeal of a summary matter.
About this case:
Citation: IESC 12
Judge:Mr Justice John MacMenamin
In reaching this decision, the court relied on the cases of Lopes v. Minister for Justice, Equality and Law Reform  IESC 21, Irish Bank Resolution Corporation (in special liquidation) v. McCaughey  IESC 44 and Moylist Construction Ltd. v. Doheny  IESC 9. Ultimately, the court concluded that the Court of Appeal did not apply these cases correctly to the defendant’s application and allowed the appeal.
The plaintiff, Allied Irish Banks plc, had successfully obtained an order for possession of the defendant’s property in the High Court. The defendant, Mr Rory Ennis, represented himself in the High Court hearing and made limited points in his defence.
Mr Ennis then filed a notice of appeal and brought an application for a stay on the execution of the judgment. In his affidavit grounding the stay application, the defendant raised numerous points about his relationship with AIB and his understanding of the loan agreement. He also provided information about attempts made to reduce his indebtedness by €286,000 following the sale of land. Further, he outlined how a credit agreement did not reduce his interest payments to the bank as he had thought at the time of signing.
In his notice of appeal, Mr Ennis made no reference to any new arguments or evidence which ought to be considered by the Court of Appeal.
In preparing for the appeal, Mr Ennis brought a motion to adduce new evidence in May 2017. In his grounding affidavit, he again set out his history with AIB, but additionally referred to a number of emails and documents which had been obtained on foot of a Freedom of Information request. In particular, he exhibited two internal AIB emails which showed that his repayments under a new facility were supposed to be reduced to €4000 but, in fact, this did not happen. Mr Ennis was given leave in June 2017 to adduce the new emails as well as bank statements as evidence in his appeal.
At the appeal hearing, Mr Ennis raised new legal submissions relating to the Consumer Credit Act 1995. He argued there was a compliance failure by the bank in that they failed to personally hand him a copy of the facility or deliver it within 10 days. The credit agreement had been exhibited in the High Court, but no reference was made to it by the defendant.
In an ex tempore ruling, the Court of Appeal refused the appeal. On the issue of the new evidence and arguments, the court held that Mr Ennis was seeking to raise entirely new grounds on appeal. It was held that all the relevant materials were before the High Court at the time of the hearing and a motion for discovery of the relevant documents had not been brought by Mr Ennis. Further, it was held that the test for adducing new evidence or arguments was “strict,” and, if Mr Ennis were to succeed on the basis of the new arguments, AIB would have been denied its right to appeal from the High Court. The decision was appealed to the Supreme Court.
The Supreme Court’s analysis began by outlining a key “misapprehension” in the case. It was noted by Mr Justice MacMenamin that the Court of Appeal seemed to think that Mr Ennis had not been granted leave to adduce any further evidence at his appeal hearing. In fact, an order of June 2017 clearly stated that he had been granted such leave. As such, while Mr Ennis was raising new legal arguments in his appeal, the evidence on which he relied was properly before the Court of Appeal.
The court outlined the differing legal tests for new arguments in plenary appeals, and interlocutory appeals and summary appeals. The court considered Lough Swilly Shellfish Growers Co-operative Society Ltd. and Anor. v. Bradley and Anor.  IESC 16, in which it was held that in certain circumstances an appellate court may adopt a flexible approach to new evidence or legal submissions. However, it was noted that there should not be an over-generous approach to new submissions either (Ambrose v. Shevlin  IESC 10).
It court held that the test for adducing new arguments in interlocutory appeals is more flexible than in appeals from plenary hearings. The court considered that this was appropriate because interlocutory orders are made to progress litigation and no final, conclusive determination has been made in a case. Further, there was a more flexible approach for interlocutory appeals because these were heard on affidavit, where a party may not have had an opportunity of putting their full case before a court.
The Supreme Court determined that this approach to interlocutory appeals was analogous to summary appeals. As such, the court took the view that the standard for adducing new evidence or argument should be similarly flexible compared to plenary appeals. The court considered the approach taken in the Lopes, IBRC and Moylist cases and held that in each instance, a flexible approach was adopted in summary-type matters.
Applying this law to the present case, Mr Justice MacMenamin concluded that the Court of Appeal should have considered the above case law in making its decision. It was noted that the court was perhaps under the “misapprehension” that the evidence was already inadmissible. It was held that, if the court had considered the new evidence, there was little doubt that the matter would have been returned for plenary hearing due to the “low threshold” of summary proceedings. Further, the issues relating to the Consumer Credit Act were “at least arguable” and the evidence for these submissions was not new.
The court allowed the appeal and held that the new evidence and submissions should have been considered by the Court of Appeal. It was accepted that Mr Ennis had failed to put his full case before the High Court and that he should bear the responsibility for failing to do so. However, the court took the view that it was not appropriate to remit the case back to the Court of Appeal, as it would effectively be acting as a court of first instance with the new evidence.
Mr Justice MacMenamin held that the balance of justice and the reality of the situation required the matter to be determined by plenary hearing. The court invited submissions as to costs.