Out of time or still in with a chance? Court considers the appropriateness of extending time to appeal


By McDowell Purcell \ In All Posts, Litigation & Dispute Resolution

On 7 March 2018, Mr Justice Meenan overturned a decision of the Master of the High Court extending time to appeal an Order for possession of the Circuit Court.[1]

Background

The Order resulted from loan two facilities advanced to Temple Spa Limited (the “Company”) by the plaintiff, previously ACC Bank plc. (the “Bank”). The loans were secured by personal guarantees from the defendants supported by a legal charge in favour of the Bank over 14.5 acres of land at Horseleap, County Westmeath (the “Property”). The Company defaulted on the loans and payment was sought from the defendants. In circumstances where the monies were not discharged, a receiver was appointed over the Property.

Judgment was granted against the defendants for €5.7 million in May 2011. This was not discharged and the defendants were adjudicated bankrupt.

Following the enactment of the Land and Conveyancing Law Reform Act 2013, the Bank initiated Civil Bill for possession proceedings in the Circuit Court and an Order for possession was granted in favour of the Bank in July 2015.

The defendants later made an ex parte application for leave to apply for judicial review seeking an order quashing the Order. This application was refused.

The second defendant then applied to the Master of the High Court seeking an order extending time for lodgement of an appeal against the Circuit Court Order. The application was heard before the Master on 7 December 2017. The Master acceded to the application and extended the time for the second defendant to appeal the Circuit Court Order. The Bank sought to set aside the Order of the Master granting the extension of time and opposed the appeal.

The test to be applied in an application to extend time for the purposes of an appeal

In considering the Bank’s application to set aside the Order of the Master, Judge Meenan relied on the leading authority regarding an extension of time for an appeal; Éire Continental Trading Company Limited v Clonmel Foods Limited [1955] IR 170. The court confirmed that the applicant must establish that:

  • it has a bona fide intention to appeal within the permitted time;
  • the existence of something like a mistake and a mistake as to procedure, in particular the mistake of counsel or solicitor as to the meaning of the relevant rule, was insufficient; and
  • an arguable ground of appeal exists.

In an effort to meet the first part of the test, the second defendant relied upon a letter dated 6 August 2015 sent by the defendants to the Bank to establish that there had been a bona fide intention to appeal within the permitted time. This letter was responded to by the Bank shortly afterwards wherein the Bank acknowledged receipt of said letter and stated that the decision to appeal was entirely a matter for the defendants. A further letter was sent by the defendants seeking the Bank’s consent to the defendants’ application to seek an extension of time to lodge a notice of appeal.

After considering the correspondence, Judge Meenan concluded that the second defendant had formed a bona fide intention to appeal within the time allowed, and was aware that the time had expired and that an extension of time was required. This was the Court’s view despite the fact that no such extension was sought by the second defendant until nearly two years later.

The Court noted that on the same day as the letter seeking the Bank’s consent issued, the defendants made an ex parte application to the High Court seeking leave for judicial review proceedings.

The second defendant was then required to show the existence of something like a mistake as to why the appeal was not lodged within the time permitted in order to satisfy the second limb of the test. The second defendant maintained that the reason she did not lodge an appeal earlier was owing to incapacity or illness. The Bank disputed this, noting in particular, that she had actively participated in the judicial review proceedings.

Upon consideration of medical reports submitted by the second defendant, Judge Meenan accepted that although she was under stress, he did not believe that this prevented her from appealing the Circuit Court Order or making an application to extend time in a timely way.

The judge was satisfied that, although the second defendant did consider an appeal, she deliberately and consciously decided to challenge the Order for possession by way of judicial review proceedings rather than an appeal. The judge concluded that there was no “mistake” to justify an extension of time and as such the Order of the Master ought to be set aside.

Judge Meenan went on to briefly consider the grounds of appeal put forward by the second defendant many of which were already considered in the judicial review proceedings. The grounds of appeal which were ultimately rejected by the Court included, for the most part, allegations that are commonly raised by lay litigants in possession proceedings such as non-compliance with Circuit Court Rules and practice directions, failure “to serve all occupants with documents”, the alleged ground of “inviolability of the home/respect for private and family life” and breach of the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995.

Conclusion

Based on the foregoing, the court refused the second defendant’s application to extend the time in respect of the appeal and ultimately discharged the Order of the Master of the High Court. This case serves as a useful reminder of the test applicable to the extension of time within which to bring an appeal and demonstrates the reluctance of the courts to progress frivolous or unmeritorious appeals.

A full text of the judgment can be accessed here.

Authors: Maria Curran and Susie Higgins

[1] ACC Loan Management Ltd -v- Fagan & anor [2018] IEHC 140