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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3 (04 February 2020)
URL: http://www.bailii.org/ie/cases/IESC/2020/2020IESC3_0.html
Cite as: [2020] IESC 3
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Page 1 ⇓
THE SUPREME COURT
[Supreme Court Appeal No: 102/2018]
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
O’Malley J.
BETWEEN:
SENIORS MONEY MORTGAGES (IRELAND) DAC
PLAINTIFF/RESPONDENT
-AND-
DEREK GATELY
DEFENDANT
-AND-
JACQUELINE MCGOVERN
NOTICE PARTY/APPELLANT
JUDGMENT of Ms. Justice O’Malley delivered on the 4th day of February 2020
Introduction
1. This appeal is against the dismissal by the Court of Appeal of an application to extend the
time within which to appeal an order of the High Court. The order in question granted
possession of certain mortgaged premises, in which the appellant and her husband live, to
the plaintiff (hereafter “the respondent” or “the lender”).
2. The exercise of an appellate court’s discretion to extend, or to refuse to extend, time
within which to appeal, has for decades been informed by the judgment of this Court in
Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170. However, it may
be that the very familiarity with the judgment on the part of judges and practitioners can
on occasion lead to the assumption that it confines the discretion by reference to a set of
mandatory conditions, and that failure on the part of a would-be appellant to comply with
one or more conditions must lead to a refusal of an extension. It may therefore be helpful
to commence with a short examination of the judgment and of some of the more recent
decisions of the Court.
3. In Éire Continental, counsel resisting an application for an extension of time made
submissions to the effect that there were “rigid rules” prescribing the conditions in which
time should be extended. In so doing, counsel was, according to Lavery J., following the
lines of a dissenting judgment by Fitzgibbon J. (in Moore v. Attorney General (No.4)
[1930] I.R. 560). Fitzgibbon J. had considered that it was necessary that an applicant
should give some good reason to support the contention that the judgment to be
appealed was wrong, and also show that a bona fide intention to appeal had been formed
before the time expired. However, Kennedy C.J. and Murnaghan J. had taken the view
that the older line of authority had been superseded by a new, simplified version of the
relevant Rule, and that the power was within the discretion of the court, to be exercised
Page 2 ⇓
in the light of the facts and circumstances of the particular case. It is clear that Lavery J.
and the other members of the Court in Éire Continental preferred the approach of the
majority.
4. In a well-known passage, Lavery J. referred at p. 173 of the report to a submission by
counsel for the respondent that there were three conditions that “must” be satisfied
before the court would allow an extension.
“These conditions were:-
1, The applicant must show that he had a bona fide intention to appeal formed
within the permitted time.
2, He must show the existence of something like mistake and that mistake as to
procedure and in particular the mistake of counsel or solicitor as to the
meaning of a rule was not sufficient.
3, He must establish that an arguable ground of appeal exists.”
5. Lavery J. then stated that in his opinion these were “proper matters for the consideration
of the Court” in determining whether time should be extended. However, it is important
to note that the judgment continues:
“…[b]ut they must be considered in relation to all the circumstances of the case. In
the words of Sir Wilfred Greene M.R., in Gatti v. Shoosmith (a case resembling the
present in many ways): - ‘The discretion of the Court being, as I conceive it, a
perfectly free one, the only question is whether, upon the facts of this particular
case, that discretion should be exercised.’”
6. At p. 174 Lavery J. stated that he was satisfied that the applicant in the case either had
the intention of appealing “or at least the intention to consider whether an appeal would
be justified” and that this was sufficient in the circumstances of the particular case. He
then referred to authorities demonstrating that in a proper case the mistake of solicitor or
counsel as to the rules about time might, even under the old practice, have been a
sufficient ground. It seems clear that in so doing he was indicating that he did not fully
accept counsel’s proposition on this aspect either. On the final question, as to whether it
was necessary to show the existence of an arguable ground of appeal, Lavery J.
expressed the view that what needed to be shown was that the proposed appeal had
“substance” and was not merely intended to gain time and to postpone the day of
reckoning.
7. There is no doubt but that over the years there has been a tendency to take the passage
quoted above, which simply summarised counsel’s submission, as encapsulating the
ruling of the Court. However, while the three factors have been endorsed in innumerable
judgments, from time to time there has been a reminder that the Court did not, in fact,
lay down the “rigid rules” that the respondent in Éire Continental advocated. Thus, in
Brewer v. Commissioners of Public Works [2003] 3 IR 539 Geoghegan J. emphasised
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that it did not necessarily follow in all circumstances that a court would either grant the
extension if all three conditions were fulfilled, or refuse it if they were not. The court still
had to consider all the surrounding circumstances. In Brewer, the Court concluded that
the defendant had at all times intended to appeal. It was accepted that there had been a
mistake, but it was an “irrational” mistake that could not be seen as operative. Finally,
the Court considered that there was no basis on the facts of the case for an appeal on the
issue of liability. If absolute compliance with Éire Continental had been necessary, an
extension could not have been given. However, having regard to all the circumstances of
the case, the Court gave an extension for a limited appeal in relation to damages only.
8. In Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley [2013] 1 I.R. 227 it was
accepted by the Court that the criteria were guidelines and that the court retained a
to further below, Clarke J. agreed that the specific three criteria discussed in Éire
Continental would suffice in the “vast majority” of cases. However, there could be cases
where different considerations applied.
9. In this appeal the central issue to be determined by this Court is whether it should extend
time if it is satisfied that there are arguable grounds of appeal, even if not satisfied either
that there was a bona fide intention to appeal formed within the prescribed period or that
there was something in the form of a mistake to excuse delay in bringing forward the
appeal.
The High Court
10. The lender’s claim was for an order for possession of certain property in Co. Leitrim, on
foot of a deed of mortgage entered into by the owner, the late Mrs. Noelle McGovern, in
September 2007. The property had previously been a licensed premises, and before that
a small hotel, but in 2007 it seems that it was in use only as a private residence. At that
time Mrs. McGovern was 76 years old and lived in the premises with her daughter (the
appellant) and son-in-law. The property is not described in the loan agreement or the
deed other than by reference to the address.
11. The lender had been approached with a view to obtaining a loan secured on the property
which, according to a valuation obtained by the lender, was worth €1.2m. The letter of
offer advanced an initial sum of €100,000 under the terms of a “Seniors Money 60plus
loan”, with a maximum loan amount set at €432,000. It was an express term of the offer
that the lender was not obliged to concern itself with the purpose of the borrowings. It
was also stated that any request for a further loan amount beyond the initial sum would
be assessed according to lending criteria including the value of the property and the total
amount owing.
12. In general, the terms of the loan differed noticeably from those of standard loan
agreements or mortgages. Interest, of course, ran from the date of the loan but no
instalment payments were required (although it was possible to “prepay” the loan in
whole or in part). Under clause 8.2, the amount owing would be repayable only on either
the sale of the property or the making of a demand. The same clause provided (insofar as
Page 4 ⇓
is relevant to this case) that in the absence of default on the part of Mrs. McGovern, or
sale of the property by her, demand could be made only after the expiry of 12 months
after her death. At that point it would be open to her personal representative (being a
person nominated to the lender by Mrs. McGovern – in this case, the appellant) to request
an extension for a further 12 months. It was a term of the agreement that the personal
representative should inform the plaintiff of her death as soon as practicable. The lender
also undertook that if the property was sold on the death of the borrower, and the
amount realised was less than the amount owing, the difference would not be payable.
13. Separately, clause 11 of the agreement stipulated that the borrower would be in default if
an event of default “as defined in the Security” occurred.
14. The appellant and her husband wrote to the lender in July 2007 to confirm that they
understood the contract being entered into by Mrs. Noelle McGovern; that they did not
intend to reside permanently in the property and that they further understood that on the
death of Noelle McGovern they would not have a right to continue to reside there unless
the loan was paid in full. Mrs. McGovern signed the loan offer and deed of mortgage by
making her mark in the presence of a solicitor in September 2007. The deed was
registered on the 9th December 2009.
15. Of note, clause 11 in the mortgage deed, like clause 11 in the loan agreement, provided,
under the heading “Events of Default”, that the lender was not to exercise any of its
powers to enforce the security unless one of a list of events of default occurred. In that
case it could decide to enforce “in accordance with both the deed and the loan
agreement”. One of the specified events was the death of the mortgagor.
16. A total of €300,000 was drawn down under the terms of the loan, in three tranches of
€100,000 paid over in September, October and December 2007. Mrs. McGovern died on
the 19th November 2009. The death certificate gives the cause of death as renal failure
but also records that she had had a previous cerebrovascular accident and dementia. She
left a will under which the appellant inherited her entire estate.
17. The appellant does not appear to have informed the lender of Mrs. McGovern’s death and,
according to the grounding affidavit sworn on its behalf, the lender did not become aware
of it until October 2014. Its solicitors wrote to the appellant on the 6th November 2014. It
was indicated that, in the circumstances, the loan had fallen due for repayment on the
20th November 2010. The appellant was reminded of the waiver letter signed in July
2007, and was asked to confirm either that the loan would be repaid, or that the property
would be voluntarily surrendered. The total due at that point was €422,190.45.
18. It appears that there was no response to this letter. In September 2015 the plaintiff’s
solicitors notified the appellant that if she had not yet extracted a grant of probate to the
estate they would seek the appointment of an administrator ad litem, and would issue
proceedings for possession if the amount due was not repaid. Again, there was no
response.
Page 5 ⇓
19. On the 2nd November 2015 the plaintiff obtained a High Court order appointing a
practicing solicitor, Mr. Gately, as administrator ad litem without the will annexed, for the
limited purpose of defending these proceedings. The appellant, who had been informed of
the application, was again advised that proceedings for possession would issue if the sum
due was not repaid.
20. A special summons was issued on the 17th November 2015, two days short of the expiry
of six years from the date of death. Mr. Gately was sued in his representative capacity.
The appellant and her husband were served with the proceedings, as the occupants of the
property, and she was subsequently joined as a notice party. It appears that they sought
legal aid, and that the matter was adjourned on a number of occasions to facilitate this.
21. The first relief sought in the summons was an order for possession of the property
currently known as “Jak’s Casino”, pursuant to s.67(2) of the Registration of Title Act
1964. The second, alternative, claim was for an order providing for the sale of the
property and the distribution of the proceeds of such sale. The third (which does not
appear to have been pursued) was for accounts and enquiries. The fourth was the
standard claim for “such further or other order as to this Honourable Court shall seem just
and appropriate”.
22. It should be noted that it is nowhere stated in the summons that the land was registered.
The grounding affidavit sworn on behalf of the respondent described it as unregistered.
There is, in fact, no reference to either registration or to the Registration of Title Act 1964
other than in paragraph 1 of the reliefs claimed in the summons.
23. In accordance with the obligations imposed upon him by virtue of his appointment, the
administrator ad litem opposed the claim. The case he made was that the respondent’s
claim was statute-barred by virtue of s.9 of the Civil Liability Act 1961. That section
provides that no proceedings are maintainable in respect of a cause of action “which has
survived against the estate of a deceased person”, unless they were either pending as of
the date of death or were commenced within the period of two years after that date. The
administrator contended that the death of Mrs. McGovern constituted an event of default
under both the loan agreement and the deed of mortgage, with the consequence that the
respondent’s claim accrued immediately upon the death, and that proceedings should
therefore have been commenced within two years of that date.
24. The lender’s position was that the section was inapplicable, in that the cause of action did
not “survive against the estate” but rather arose either at the point of, or subsequent to,
the death. The relevant limitation period was, therefore, six years. Having regard to the
terms of the loan agreement, it contended that in this particular case the claim did not in
fact accrue until 12 months after the date of death. This was because the loan was not
repayable until demand was made, and a valid demand could not be made during that
12-month period.
25. The appellant was ultimately unable to get legal aid and appeared as a litigant in person
in the High Court. According to her affidavit evidence, she was the person who had made
Page 6 ⇓
contact with the respondent with a view to her mother taking out an equity loan. The
purpose was to develop a casino in the premises. She said that the lender’s
representative advised them to draw the money down in stages, to save on interest, but
in early 2008 they were told that the last tranche would not be forthcoming due to the
downturn in the economy. The appellant averred that the resulting shortfall adversely
affected the development of the business, and threatened them with the loss of their
family home. She sought an explanation as to how the lender could “renege” on the
agreed amount. She also queried the respondent’s calculations in respect of the total
amount claimed.
26. In response the lender relied on the terms of the loan agreement and the letter of waiver
signed by the appellant. It was asserted that in any event its representatives had been
unaware of the business plan for the premises. An explanation was provided in respect of
the figures.
The decision of the High Court
27. By agreement between counsel, the issue as to the limitation period was dealt with on the
basis of written and oral submissions. An ex tempore judgment was delivered by the trial
judge (Baker J.) on the 26th January 2017. She referred at the start of her ruling to the
fact, as she believed it to be, that what was before her was a claim for relief under
s.62(7) of the Act of 1964, and described the respondent as having the benefit of a
registered charge against the land in question and therefore having, on the face of it, an
entitlement to possession under the Act.
28. Baker J. went on to determine that the claim against the defendant was not statute
barred. She stated that it was necessary to construe the charge document and the loan
agreement “in their totality”. Looking at clauses 8 and 11 of the agreement, and clause
11 of the charge, she agreed that the death of the mortgagor was an event of default.
However, she considered that s.9(2) of the Civil Liability Act 1961 applied to claims
subsisting at the time of death, and not to a claim that was created by the death.
29. Accordingly, the relevant limitation period was found to be six years rather than the two-
year period under the Act of 1961. Having so ruled, the trial judge found that the
defendant had no other defence (as, indeed, was conceded by counsel on his behalf), and
that there was no reason not to make an order for possession under s.62(7) of the
Registration of Title Act 1964 as against him. However, Baker J. made it clear that her
ruling did not deal with the position of the appellant, and indicated that she would stay
the taking of possession until she heard what the appellant had to say. She had not read
the appellant’s affidavits before dealing with Mr. Gately’s argument, since if the claim had
been statute barred there would have been no need to consider any other point. It might
be that the appellant had a defence, but “for the moment” she was not making her a
defendant. The matter was accordingly put back to the 9th March 2017 in order to hear
submissions.
Page 7 ⇓
30. The court registrar inquired what the form of the order should be, and Baker J. requested
counsel for the lender and Mr. Gately to attempt to draw it up together, and then send it
to the registrar “and I’ll see if it’s what I think it should be”.
31. On the 9th March the appellant was still unrepresented, but had obtained an opinion of
counsel through the Bar Council Voluntary Assistance Scheme. Baker J. read and
considered the content of the opinion, but felt that it could not avail the appellant. There
was an argument outlined that the appellant might have a right of residence. Baker J.
said that even if that were so, it would be subject to the mortgage. Essentially, her
reasoning was that the appellant could not inherit that which her mother did not have,
and therefore she had inherited the property subject to the mortgage. She could see no
defence that could have been mounted by the late Mrs. McGovern. Counsel’s opinion had
also referred to undue influence, but that had not been raised in the case.
32. Baker J. then inquired as to whether the land was registered and was told by counsel for
the lender that it was not. She pointed out that in that case the claim in the summons for
an order pursuant to s.62(7) of the Registration of Title Act 1964 was incorrect, to which
counsel responded that there was also a claim for an order for possession and sale.
Counsel further accepted that she did not need an order for sale, just possession. She
intimated to the judge that this order had been made on the last occasion.
33. The trial judge then considered whether there was any defence that could be made on
behalf of the appellant and found that there was not. She confirmed the order for
possession but gave a stay until the 15th January 2018. The trial judge indicated to the
appellant that she might be able to use that time to take financial advice and come to an
arrangement with the lender.
34. The order of the 26th January 2017 was not perfected until the 16th March, after the
second hearing, and simply directed the defendant, Mr. Gately, to deliver up possession in
the premises and recorded that the matter had been adjourned to the 9th March. There is
no reference to the Registration of Title Act. The second order was perfected on the 21st
March 2017, and put a stay on the earlier order until the 15th January 2018.
The Court of Appeal
35. The stay imposed on the order duly expired on the 15th January 2018. On the 23rd
January 2018 the appellant, now legally represented, requested consent from the plaintiff
to the late filing of an appeal. This request not being acceded to, a motion was issued on
the 13th April 2018 in the Court of Appeal, seeking an extension of time within which to
lodge a notice of appeal against the orders made on the 26th January and the 9th March
2017. It will be remembered that the order for possession was perfected on the 16th
March 2017, and the time for lodging an appeal therefore expired on the 13th April 2017,
exactly one year before the motion was issued.
36. In her grounding affidavit the appellant averred that she had intended to appeal since the
time the orders were made in the High Court. The delay was explained by reference to a
number of matters. She said that she had sought to extract a grant of probate, so that
Page 8 ⇓
she could act on behalf of the estate, but had been delayed by some confusion in the
Probate Office as to whether Mr. Gately had or had not obtained a grant of
representation. Although the appellant received a grant of probate on the 20th February
2018, she said that the issue was not finally resolved until the 26th March 2018 when the
solicitors for the plaintiff forwarded a copy of the limited grant issued to Mr. Gately. She
was substituted as defendant in these proceedings in her capacity as executrix of her
mother’s estate by order of the Master of the High Court on the 16th March 2018.
37. The appellant explained that both she and her husband suffered from debilitating medical
conditions which caused considerable pain and required ongoing treatment. Reference
was also made to their reduced financial circumstances and to the time and effort
required to obtain legal representation.
38. The primary ground proposed to be put forward on appeal was that the order of the High
Court had been made without jurisdiction, in circumstances where the trial judge had
been acting under a mistaken belief that the property was registered land and therefore
that the court had jurisdiction to grant relief under the Registration of Title Act 1964. It
was averred that this error did not appear to have been corrected by the respondent.
Further grounds were mooted in respect of the limitation period issue, as well as a
general argument that the loan documentation should be construed contra proferentum.
39. In a replying affidavit, the plaintiff exhibited the DAR transcripts from the 26th January
and 9th March 2017. It was averred that the appellant had acquiesced in the orders,
having written to the plaintiff in June 2017 inquiring about the possibility of renting the
premises after the expiry of the stay. It was contended that the difficulties in respect of
the grant of probate were immaterial in that an appeal could have been lodged without it.
The health difficulties experienced by the appellant were, similarly, not accepted as
bringing the case within the Éire Continental criteria.
40. The respondent accepted that in the ex tempore judgment (the reference here is to the
ruling delivered on the 26th January 2017) the trial judge had granted relief under
s.62(7) of the Registration of Title Act 1964. It was conceded that this had been the result
of a drafting error in the summons, but pointed out that the error had later come to the
attention of the court.
41. The application for the extension of time was refused by the Court of Appeal in ex
tempore judgments delivered by each of the three members sitting (McGovern, Hogan
and Irvine JJ.). All three referred to the judgment in Éire Continental and concluded that
the appellant had not established that she had formed a bona fide intention to appeal
within the permitted time or that there was any mistake which might justify the delay.
42. McGovern J. did not accept that the appellant’s financial and medical problems had
prevented her from filing a notice of appeal, in the absence of evidence to that effect. He
also considered that there was no satisfactory evidence that she had formed an intention
to appeal at the relevant time, as required by Éire Continental. In his concluding remarks,
he said:
Page 9 ⇓
“There may well be an arguable ground of appeal, certainly on the issue as to the
Statute of Limitations point. I am not so sure there is an arguable ground of appeal
on the registration of title point. It is perhaps arguable, I would question that, but
certainly there may be an arguable appeal on the other point. But I have to weigh
that up against the other two tests set out in the Éire Continental case. In my view
having regard to the substantial delay in moving this application and the absence of
any mistake I would dismiss the application…”
43. Hogan J. commenced by stating that normally the critical question would be whether the
third limb of Éire Continental had been satisfied.
“In this case certainly at least one arguable case has been disclosed, namely the
issue relating to the Statute and, I think, if pressed I would agree that the issue
relating to s.62(7) of the Registration of Title Act 1964 is also at least an arguable
ground.”
44. However, Hogan J. felt that the first two limbs of Éire Continental had not been satisfied.
In particular, there was no “really cogent or convincing” evidence that an intention to
appeal had been formed within the requisite time, and there was nothing in the nature of
a mistake that might justify the delay. He remarked that the delay in the case had been
very lengthy, in the context of an application of this kind.
45. Irvine J. agreed with the judgments of McGovern and Hogan JJ. However, she stressed
that the three factors identified in Éire Continental were not “binding pre-requisites”.
“They are matters for the proper consideration of the court and the court’s
discretion remains a perfectly free one regardless of whether all or any of those
criteria are established. However, they do guide the court and I agree with my
colleagues that the applicant has not met the first leg of that test. She has not
demonstrated an intention to appeal within the time or indeed within a period of
one year of the decision of the High Court judge. I also think she has not
established any mistake and indeed it might be said that she acquiesced in the
court order when she wrote asking whether at the expiry of the stay she could, in
fact, rent the property.
It has to be said that there is a public interest in having closure to litigation – that
is an interest that is shared obviously by the parties to litigation. In my view, the
delay in this case is untenable to the point that the Court should not exercise its
discretion and should refuse the application”.
Submissions in the Appeal
46. It is common case that the starting point for the determination of this application is the
analysis by Lavery J. in Éire Continental. It is also agreed that the court retains a
discretion, having regard to the totality of the circumstances of the particular case before
it, to extend or refuse to extend time, and that a court is not precluded from exercising its
discretion to grant relief in a case where only some or none of the aspects of the Éire
Page 10 ⇓
Continental test are satisfied, if the interests of justice so require. This much would
appear to flow from the series of judgments of this Court identified earlier – Brewer v
The appellant
47. In this case, the appellant’s notice of application for leave to appeal to this Court
contained two statements that were clearly incorrect – that the High Court judge was
acting under a mistaken belief that was not corrected by the parties, and that the order
was bad on its face. Such misstatements are surprising, given that the transcripts and
copy orders had been available since before the Court of Appeal hearing.
48. The foundation of the appellant’s argument as developed in submissions is the contention
that the order for possession was made in court on the 26th January 2017, and was made
pursuant to s.62(7) of the Registration of Title Act 1964. Reference is made to extracts
from the transcript of the proceedings, where it was explicitly stated by the trial judge
that the land was registered land and that the application was for relief under the Act. The
trial judge had then, it is said, engaged in an attempt to do justice on the 9th March
2017, but the order had already been made. She should, upon becoming aware of the
error in relation to the status of the land, have invited the defendant administrator ad
litem to address her on whether the order should be set aside in the circumstances. If this
had happened, any necessary amendment to the pleadings would have constituted a new
cause of action in respect of which the appellant could have relied upon the relevant
limitation period. The appellant could also have made a case in respect of her right of
residence.
49. On foot of this analysis, the appellant is described as having a manifestly strong or
unanswerable ground of appeal. The order of the High Court is asserted to have been
patently and unarguably defective in law, having been made in want of jurisdiction. If the
appeal had been lodged within the time permitted, the appellant would have been entitled
to have the order overturned ex debito justitiae. It is further argued that since the
property is the appellant’s family home, her rights under the Constitution and the
European Convention on Human Rights must be protected by the courts. The core
principle considered in, for example, State (Vozza) v Ó Floinn [1957] I.R. 227 is that
where the Constitutional (or Convention) rights of a person are adversely affected by
something done without jurisdiction it is the duty of the Court not to withhold such relief
as is required to undo the wrong. There having been a manifest violation of her
constitutional rights, the discretion to extend time must be exercised so that the wrong
can be corrected.
50. Further authority is cited for the uncontroversial proposition that the Constitution obliges
the State, by its laws, to respect and insofar as practicable defend and vindicate the
personal rights of the citizen.
Page 11 ⇓
51. In the alternative it is submitted that, at least, the court should “lean heavily” in favour of
granting the extension subject to consideration of the interests of justice. In turn, that
analysis will, it is said, concern an assessment of relative prejudice. It may be that this
process will require the court to balance competing constitutional rights. In this case, the
competing rights are identified as being, on the one hand, the appellant’s property rights
and right to protection against unlawful interference with her dwelling and, on the other,
the respondent’s right to a fair and speedy determination of its proceedings pursuant to
Article 6 of the Convention. In the circumstances it is submitted that the appellant’s rights
are superior, and that there is the prospect of a “major injustice” should the appeal not
proceed.
52. Counsel for the respondent relies upon the fact that it was made clear to the High Court
judge in the hearing on the 9th March 2017 that the land was unregistered, and that the
January order was perfected following this second hearing and does not mention s.62 of
the Registration of Title Act 1964. While such relief was sought in the special summons,
this was in addition to “[s]uch further or other order as to this Honourable Court shall
seem just and appropriate”.
53. The respondent submits that the rights of the appellant have been amply vindicated
through an extensive hearing in the High Court, as well as a substantial hearing in the
Court of Appeal. Moreover, it is contended that the appellant entirely overlooks the
constitutionally protected property rights enjoyed by the respondent by virtue of its
mortgage over the lands in question, pursuant to which significant sums (now exceeding
the value of the property itself) were advanced to the deceased.
54. It is noted that in Goode Concrete Clarke J. held that in certain unusual and exceptional
cases conditions other than those enumerated in Éire Continental may apply. He
considered that one such case would be where the basis of the appeal stems from factual
circumstances outside of the materials which were before the High Court. While the
presence of an arguable ground of appeal was still paramount in such a situation, the
other two specific criteria required modification. He considered that the following factors
were of relevance:-
(a) The time when the party seeking an extension of time first became aware of the
facts on which it wishes to rely;
(b) The extent to which it was reasonable for that party to engage in further inquiry
before bringing an application to the Court for an extension of time;
(c) The time which elapsed between information coming to the attention of the relevant
party and the application for an extension of time measured by reference to the
tight limit of 21 days within which a party is expected, in an ordinary case, to
appeal to the Supreme Court; and
(d) Any other factors arising in the special circumstances of the case but in particular
any prejudice which might be said to have been caused to the successful party in
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the High Court by reason of the overall lapse of time between the order sought to
be appealed against and the application for an extension of time.
55. The respondent submits that all of the circumstances now relied upon by the appellant
were available to her within 28 days of the perfection of the order for possession of the
High Court. In those circumstances, it is submitted that something quite exceptional
would have to be established by an applicant to be granted an extension of time.
56. It is further submitted by the respondent that it was open to the High Court judge to
make an appropriate order for possession on the special summons, to reflect the fact that
the mortgaged property was unregistered. That such relief is properly sought by way of
special summons is also clear from the provisions of O. 54, r. 3 of the Rules of the
Superior Courts: -
Any mortgagee or mortgagor, whether legal or equitable, or any person entitled to
or having properties subject to a legal or equitable charge, or any person having
the right to foreclose or redeem any mortgage, whether legal or equitable, may
take out a special summons for relief of the nature or kind specified in Order 3(15).
57. Order 3 provides that the procedure by special summons may be adopted in the following
classes of claims: —:
… (15) Sale, delivery of possession by a mortgagor, or redemption; reconveyance,
or delivery of possession by a mortgagee.”
Discussion
58. It was clear from the terms of the judgment of Lavery J. in Éire Continental that while the
Court saw the three matters identified by counsel as “proper matters for the consideration
of the court”, although even in that respect modifying them to some extent, the essential
point was the necessity to consider all of the relevant circumstances.
59. The jurisprudence of this Court consistently demonstrates this approach in such cases.
obligation to consider all of the circumstances. Firstly, Clarke J. identified the objective of
the court when considering an application to extend time (at paragraph3.3):
“The underlying obligation of the Court (as identified in many of the relevant
judgments) is to balance justice on all sides.”
61. He then went on to identify certain considerations that are likely to arise in all cases.
“Failing to bring finality to proceedings in a timely way is, in itself, a potential and
significant injustice. Excluding parties from potentially meritorious appeals also runs
the risk of injustice. Prejudice to successful parties who have operated on the basis
that, once the time for appeal has expired, the proceedings (or any relevant aspect
of the proceedings) are at an end, must also be a significant factor. The proper
administration of justice in an orderly fashion is also a factor of high weight.
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Precisely how all those matters will interact on the facts of an individual case may
well require careful analysis. However, the specific Éire Continental criteria will
meet those requirements in the vast majority of cases.”
62. The rationale for holding parties to the stipulated time limits for appeals is, as Clarke J.
observed, that in most cases a party to litigation will be aware of those limits and should
not be allowed an extension unless the decision to appeal was made within the time, and
there is some good reason for not filing within the time. Further, in most cases, the
parties will be aware of all the evidence called, the submissions made and the reasoning
of the judge – they have, therefore, all the information necessary for the purposes of
making a decision. Goode Concrete was an exception because the appeal was based on
information that had come to the attention of the appellants only after the conclusion of
the High Court process. It is notable that in granting an extension of time the Court did
not permit the appellants to appeal in respect of any aspect that was known to them in
the ordinary course.
63. While bearing in mind, therefore, that the Éire Continental guidelines do not purport to
constitute a check-list according to which a litigant will pass or fail, it is necessary to
emphasise that the rationale that underpins them will apply in the great majority of
cases.
64. It should also be borne in mind that, depending on the circumstances, the three criteria
referred to are not necessarily of equal importance inter se. As Clarke J. pointed out in
Goode Concrete it is difficult to envisage circumstances where it could be in the interests
of justice to allow an appeal to be brought outside the time if the Court is not satisfied
that there are arguable grounds, even if the intention was formed and there was a very
good reason for the delay. To extend time in the absence of an arguable ground would
simply waste the time of the litigants and the court.
65. By the same token it seems to me that, given the importance of bringing an appeal in
good time – the desirability of finality in litigation, the avoidance of unfair prejudice to the
party in whose favour the original ruling was made, and the orderly administration of
justice – that the threshold of arguability may rise in accordance with the length of the
delay. It would not seem just to allow a litigant to proceed with an appeal, after an
inordinate delay, purely on the basis of an arguable or stateable technical ground. Since
the objective is to do justice between the parties, long delays should, in my view, require
to be counterbalanced by grounds that go to the justice of the decision sought to be
appealed. Not every error causes injustice.
66. There is an analogy here with delay in the context of judicial review. There may, in that
context, be cases where a litigant can establish entitlement to relief as of right despite
delay or other conduct that might in other circumstances constitute a bar to relief.
O’Higgins C.J., discussing the discretionary nature of judicial review in The State
(Abenglen Properties Ltd.) v. Dublin Corporation) [1984] I.R. 381, acknowledged that in
certain cases, where a criminal conviction had been recorded otherwise than in due
course of law, the discretion might be exercisable only in favour of quashing. However, he
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pointed out that in the vast majority of cases the court retained a discretion to refuse
relief if, for example, the conduct of the applicant was such as to disentitle him from it.
The fact that it can be established that there was an irregularity or defect in the impugned
proceedings does not mean that the court is compelled to grant the remedy as of course.
In judicial review proceedings, therefore, delay is a factor that may lead to a court
concluding that relief should not be granted, even if there are factors present that could
have led to success if the proceedings had been brought promptly.
Conclusion
67. At the hearing, the appellant has contended that the High Court order was posited on the
status of the property as registered land and was therefore made without jurisdiction. The
Court of Appeal expressed the view that this might have been arguable, although the
members of the Court clearly thought that the limitation issue might have been stronger.
However, they considered that the potential arguability of an appeal was outweighed by
the absence of both an intention to appeal formed within the time limit and any
satisfactory excuse for the delay. The appellant’s case is, in effect, that she is entitled to
relief as of right because her rights have been violated by an order made in the absence
of jurisdiction.
68. I cannot see that this argument is capable of being made out. Certainly, the claim for
relief under the Registration of Title Act 1964 was misleading, and did indeed mislead the
trial judge on the 26th January 2017. However, it must be said that the grounding
affidavit and the exhibited documents were to the contrary effect. The main point, in my
view, is that no final order was made on that date. The trial judge stated that she would
make an order as against the defendant, but that she had not as yet considered what
might be said by the appellant. She was contemplating the possibility of making the
appellant a defendant in the case, should it transpire that she had a defence to an order
for possession. Finally, she requested counsel for the plaintiff and defendant to liaise with
each other and the registrar in respect of the appropriate form of order, to be checked by
herself before finalisation. All of this is inconsistent with a final order.
69. Even if this analysis is incorrect, it remains the case that the order as perfected makes no
reference to the Registration of Title Act. The jurisdiction to alter an order before
O’Donnell J. described the jurisdiction and its rationale in the following terms:
“Every judge, particularly a judge in a final court of appeal lives with the possibility,
and sometimes the reality, of judicial error. This should not be surprising. If there
was no possibility of judicial mistake, either in fact or law, there would be no need
for an appellate system. At a more basic level, there is a well established
jurisdiction to alter a decision prior to the making and perfection of the order in a
case. See e.g.: Millensted v Grosvenor House (Park Lane) Ltd. [1937] 1 KB 717 and
in the criminal context Richards & anor v. Judge O’Donoghue and D.P.P.
[2016] IESC 74. It is not necessary here to discuss the circumstances in which such
jurisdiction may be exercised in civil cases. (See Delany and McGrath, Civil
Procedure in the Superior Courts, 3rd ed, paras. 24-32). Judgments and orders
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may also amended by the ‘slip rule’, Order 28, to which a reasonably generous
interpretation is given: see the observations of Lowry LCJ in McNichol v Neely
[1983] NI 43 quoted with approval by Murray J in McMullen v Clancy [2002] 3 IR 493.
There is also a procedure for speaking to the minutes of a final order with a
view to clarifying that order. None of this would be necessary if error, or at least
the possibility of error, did not exist.”
70. The misapprehension as to the status of the land was rectified on the 9th March 2017,
although one might observe that counsel for the plaintiff should not have waited to be
asked before bringing it to the attention of the court. The two orders were perfected after
that, and I can see no reason for presuming that the original error from the previous date
continued to taint either of them. The description of the final order as having been made
without jurisdiction seems untenable – the High Court undoubtedly had jurisdiction to
make an order for possession simpliciter, and that is what was done.
71. I would therefore find against the appellant on the basis that there is no arguable ground.
However, even if the situation was less clear-cut, such that it could be said that the
appellant’s case was “arguable” or “stateable”, I would nonetheless consider that in the
circumstances of this case the Court should not exercise its discretion in favour of
extending time. As I said earlier, it seems to me that where there is significant delay
before seeking an extension, the appellant will need to show a correspondingly strong
case. Since the objective is to do what is just in the circumstances as presented on the
facts of each individual case, an argument based purely on a technical error by the trial
judge, that cannot be described as having brought about an unjust result, may be
insufficient. In my opinion, that is the situation in this case. It might be pointed out that
the appellant in this case, unlike many of the possession cases that come before the
courts, has continued to reside in the property while the debt increases, but with no
personal liability for that debt. She had inherited her mother’s estate but, as the trial
judge pointed out, she could not inherit the property free from the mortgage. The fact
that she and her husband reside there does not alter that proposition. The lender was
entitled, on the evidence before the court, to an order for possession of the property
securing the loan, and such an order in no way violated the constitutional rights of the
appellant.
72. In the circumstances I would dismiss the appeal.
Result: Appeal dismissed.