High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"(1) Whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;

(2) When the time limit has expired the extent to which the party applying is in default;

(3) The effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;

(4) Whether a hearing on the merits has taken place or would be denied by refusing an extension;

(5) Whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) to be made which could not otherwise be put forward; and

(6) Whether the point is of general, and not merely particular, significance.

To these I add the important principle:

(7) That the rules of court are there to be observed."

I also refer to the decision of the Court of Appeal in Graham v Quinn [1997] NI 338 and in particular to the judgment of Kerr J at 354-357.

"The defendant/appellant was at all times anxious to appeal against the said judgment of Lord Justice Sheil delivered on 8 October 2004. Counsel erroneously prepared a 'notice of appeal' and this was served within the six week time limit permitted by Order 59, rule 4(1)(c) of the Rules. Counsel readily accepts that he originally advised the wrong procedure but, unfortunately, the requisition to state a case was lodged in the Appeals and Lists Office outside the 24 day period permitted by Order 61, rule 5(1) of the Rules.

I verily believe that the defendant/appellant has good points of law to argue on an appeal and that the plaintiffs/respondents, have not been unduly prejudiced by reason of the delay and requisition a case stated herein."

"(7) On each occasion when this matter was considered, evidence was called and cross-examined by both the plaintiff and the defendant. The vast majority of the evidence on behalf of the plaintiffs was given by my late husband. He was possessed of all information and details relating to his dealings with Jimmy Doyle, he gave evidence about various conversations and incidents which took place exclusively between himself and Jimmy Doyle; my late husband gave evidence about various actions undertaken exclusively by him in relation to the upkeep and maintenance of the laneway; my late husband gave evidence about the conversations and dealings he had with previous solicitors in this case when he acquired our property including the disputed laneway; my late husband gave evidence about discussions and conversations he had with our predecessors in title.

(8) I remain extremely upset and distressed by the fact that Jimmy Doyle is now attempting to prosecute a further attempt at appeal/case stating of this case. All the parties have now given evidence twice and been cross-examined twice. Two separate findings of fact and law upheld in my favour. The cost implications of a further appeal/case stating are extremely distressing as I have been advised and verily belief that the current bill of costs in relation to this matter runs in tens of thousands of pounds.

(9) However, and notwithstanding the above considerations, any future appeal which may remit a case for a complete rehearing would fundamentally prejudice my cause as I have no lawful means of introducing my late husband's evidence or responding to cross-examination of the same. The appellant has indicated through his counsel that he would sustain and be subject to an injustice if he were not entitled to appeal/case state this matter. I cannot understand this assertion given the two trials which have already been conducted and have been found in my favour. In my opinion, it remains an injustice that Mr Doyle proposes to proceed with this matter and did not attempt to meet his costs obligations arising out of the previous trials."

(i) Was the learned Lord Justice correct in law in concluding that the McIlroys had acquired title to the disputed laneway by adverse possession at some unspecified time prior to 1985 and were therefore in a position to "grant" a right of way to the appellant between points C to B in 1985?

(ii) If the answer to question (i) is "No", then was the continued user of the laneway between points C to B by the appellant a sufficient act in law to negate any supposed "discontinuance" of his own possession of the disputed laneway?