Supporting Documents:
102-18 AFL.pdf 102-18 Respondents Notice.pdf Ex tempore Judgment of Court of Appeal.pdf

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Notice Party / Applicant to appeal to this Court from the Court of Appeal

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 25th June, 2018

DATE OF ORDER: 25th June, 2018

DATE OF PERFECTION OF ORDER: 4th July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 6th July, 2018 AND WAS IN TIME.

REASONS GIVEN:

Application

1. The applicant, Ms. McGovern, seeks leave to appeal to this Court from the order of the Court of Appeal made on 25 June 2018 (and perfected on 4 July 2018) which refused her application for an extension of time to issue an ordinary notice of appeal from the order of the High Court (Baker J.) made on 26 January 2017.

Jurisdiction

2. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and the many Determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.

3. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of Determinations and are fully addressed in both a Determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Cooper (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this Determination.

4. It should be noted that any ruling in a Determination is a decision particular to that application and is final and conclusive only as far as the parties are concerned. The issue calling for the Court’s consideration is whether the facts and legal issues meet the constitutional criteria as above identified. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value relative to the substantive issues, if and when such issues should further arise in a different case. Where leave is granted on any issue, that matter will be disposed of in due course in the substantive decision of the Court.

Background and Procedural History

5. The applicant is the daughter of Noelle McGovern who died on 19 November 2000 (“the deceased”). The special summons proceedings, when instituted, sought an order for possession of certain property in Co. Leitrim pursuant to s. 62(7) of the Registration of Title Act 1964. It is claimed that the deceased, who was the owner of the property had given a deed of mortgage dated 14 September 2007 to the plaintiff to secure certain liabilities to the plaintiff. The original defendant, Derek Gately, had been appointed administrator ad litem to the estate of the deceased by an order of the High Court of 2 November 2015.

6. In the High Court, it appears that the applicant was initially made a notice party and filed affidavits in response to the claim. She and her husband reside in the property in issue. The applicant opposed the order sought and appeared as a litigant in person at the hearing in the High Court. The claim was also opposed by the administrator ad litem who was legally represented.

7. The High Court (Baker J.) on 26 January 2017 granted the order for possession as sought. The Court received a copy of the note of the ex tempore judgment from which it appears that the application was treated as one for an order under s. 62(7) of the Registration of Title Act 1964. This is also the relief claimed on the special summons.

8. The primary issue in the High Court appears from the ex tempore judgment delivered to have been whether or not the plaintiff's claim was barred by s. 9(2)(b) of the Civil Liability Act 1961. The High Court judge determined by a construction of the mortgage deed that it was not so barred.

9. There appears to have been a further High Court hearing on 9 March 2017 giving rise to an order staying the order for possession until 15 January 2018 upon certain terms.

10. The next procedural step from the limited papers before the Court in this application is an application which resulted in an order of the Master of the High Court made on 16 March 2018 on an ex parte application by solicitors then acting for the applicant, Jacqueline McGovern. It was ordered that, in her capacity as executrix of the estate of Noelle McGovern, Jacqueline McGovern be substituted for Derek Gately as defendant in the within proceedings.

11. On 13 April 2018, the applicant, through her solicitors, issued a notice of motion in the Court of Appeal seeking an extension of time to appeal the order of the High Court made on 26 January 2017. That was on notice to the plaintiff and at a hearing on 25 June 2018, the application was refused.

12. The order of the Court of Appeal retains the original title to the proceedings and the applicant is referred to therein as the notice party. It is unclear as to why this is so, having regard to the order of the Master of 16 March 2018. Nothing turns on this for present purposes, save that it appears that by that date she was representing the estate and not just herself as a notice party in occupation of the property.

13. The applicant was legally represented before the Court of Appeal. It appears from the order of the Court of Appeal that the application was grounded upon an affidavit and there was a replying affidavit from the solicitor for the plaintiff. The Court of Appeal also appears to have had before it certain additional papers including a transcript of the hearing on 9 March before the High Court. None of those are before this Court on this application.

14. The Court of Appeal refused the application for an extension of time for the reasons set out in three concurring ex tempore judgments (McGovern, Hogan and Irvine JJ.). Whilst the notes of the ex tempore judgments approved on 5 July 2018 refer to them as having been delivered on 29 June, this would appear to be a typographical error as the decision to refuse appears from the order to have been made on 25 June and there was a further application in respect of a stay on 29 June. Nothing turns on this. The approved notes of the ex tempore judgments are published alongside this determination.

15. As appears all three judgments in the Court of Appeal referred to the judgment of this Court in Eire Continental Trading Company Limited v. Clonmel Foods Limited [1955] 1 I.R. 170 and the three well established matters to be considered by a court on an application for leave to extend time to appeal. All three judges determined that the applicant had not established that she had formed a bona fide intention to appeal within the permitted time nor anything in the nature of a mistake which might justify the delay. However, McGovern J. and Hogan J. considered that she had established an arguable ground of appeal in relation to the limitation point and potentially, a weaker one in relation to s. 62(7) of the Registration of Title Act 1964. It is probably correct to observe that the three judges differed in approach and with regard to the matters to be considered in deciding that the Court should exercise its discretion on those findings against extending time.

Discussion and Decision

16. The application for leave and respondent’s notice are published alongside this determination. In summary, the applicant contends that the decision of the Court of Appeal involves a matter of general public importance in relation to the exercise of judicial discretion to extend time to deliver a notice of appeal where, as is contended, the order appealed against is bad in law and or made by the invocation of a jurisdiction did not apply to the subject matter of the order. It is contended that it is now agreed that the land is unregistered land and that the High Court exercised jurisdiction pursuant to s. 62(7) of the Registration of Title Act 1964. It is also contended that the decision raises a matter of general public importance as to how judicial discretion is to be exercised to extend time to appeal where the order affects constitutional rights of a party. Amongst the grounds of appeal intended to be pursued in the event leave is granted is that the Court of Appeal erred in failing to afford due weight in the exercise of its discretion to the level of prejudice suffered by the applicant by the refusal to extend time and to the vindication of her constitutional property rights.

17. The respondent does not accept that the order made by the High Court is one which is bad in law or one made without jurisdiction. It contends that the Court of Appeal applied the well-established principles in Eire Continental to the facts of the application before it and that its decision does not involve a matter of general public importance.

18. The applicant has not sought to have this Court revisit the principles set out in Eire Continental. However, the Court considers that the decision of the Court of Appeal does raise a matter of general public importance namely the question as to what matters the Court of Appeal should take into account in exercising its discretion whether or not to extend time to issue a notice of appeal in circumstances where, having regard to the questions identified by Eire Continental, an applicant establishes that she has an arguable ground or grounds of appeal but does not satisfy the Court that she formed a bona fide intention to appeal within the time and there is nothing in the nature of a mistake which would justify delay.

19. Accordingly, the Court will grant leave to appeal upon the grounds set out at section 6 of the application. However, such grounds may be the subject of limitation and/or direction in the course of case management.

20. As this is an appeal against a refusal of an extension of time, it should be dealt with as an urgent appeal in this Court. The Court will direct that the notice of intention to proceed must be delivered within ten days of the date of this determination and the time limits for the filing of submissions complied with by both parties. Thereafter it will be listed for directions at an early date.

And it is hereby so ordered accordingly.