ACC Loan Management Ltd v Pepper Finance Corporation (Ireland) Designated Activity Company

JurisdictionIreland
JudgeBaker J.
Judgment Date24 March 2021
Neutral Citation[2021] IESC 20
Date24 March 2021
CourtSupreme Court
Docket Number[S.C. No. 177 of 2018],Supreme Court Record No. 2018/177 High Court Record No. 2017/238 CA Circuit Court Record No. 120/2014
Between/
ACC Loan Management Limited
Plaintiff / Respondent
and
Pepper Finance Corporation (Ireland) Designated Activity Company
Respondent

and

Declan Fagan
First Named Defendant

and

Bernadette Fagan
Second Named Defendant / Appellant

[2021] IESC 20

O'Donnell J.

McKechnie J.

Charleton J.

O'Malley J.

Baker J.

Supreme Court Record No. 2018/177

Court of Appeal Record No. 2018/169

High Court Record No. 2017/238 CA

Circuit Court Record No. 120/2014

THE SUPREME COURT

Extension of time – Jurisdiction – Courts of Justice Act 1936 s. 39 – Appellant seeking an extension of time to appeal the order of the Circuit Court – Whether the Court of Appeal had jurisdiction to entertain the appeal of the refusal of the High Court to extend time to appeal the decision of the Circuit Court

Facts: The second defendant/appellant, Mrs Fagan, and her husband, the first defendant, Mr Fagan, were adjudicated bankrupt on the petition of the plaintiff/respondent, ACC Loan Management Ltd, on 21 May 2012. An order for possession against the appellant and her husband was made by the Circuit Court on 28 July 2015, and the Circuit judge decided that the appellant and Mr Fagan did not have standing to challenge the order for possession. Leave to seek judicial review in the form of certiorari was sought in the names of both Mr and Mrs Fagan. McDermott J delivered a written judgment on 10 May 2016 ([2016] IEHC 233) in which he refused leave. The Court of Appeal in an ex tempore judgment delivered on 17 July 2017 dismissed the appeal from that order. After the conclusion of the judicial review Mrs Fagan by motion of 31 July 2017 sought an extension of time to appeal the order of the Circuit Court and on 7 December 2017 the Master of the High Court granted the extension of time, a decision reversed on appeal by Meenan J in his judgment of 7 March 2018 ([2018] IEHC 140). Mrs Fagan’s appeal of that order was dismissed and the ex tempore ruling of the Court of Appeal (McGovern, McCarthy and Kennedy JJ concurring) ([2018] IECA 353) formed the basis of the appeal to the Supreme Court as it concluded that it did not have jurisdiction by reason of s. 39 of the Courts of Justice Act 1936 to deal with the appeal which the Court of Appeal characterised as an appeal from a decision of the High Court exercising its statutory appellate jurisdiction from the Circuit Court. Mrs Fagan’s appeal from that decision of the Court of Appeal concerned the jurisdictional issue only.

Held by Baker J that s. 39 may clearly and unambiguously be understood as restricting the right to appeal a decision of the High Court extending time for leave to appeal from a decision of the Circuit Court. Baker J held that a decision to refuse to extend time is one made by the High Court exercising its appellate jurisdiction and by way of case management of a Circuit Appeal, and is a decision “on” the appeal, and is dispositive of the appeal as a whole. Baker J held that a decision to extend time, if appealed, would be capable of affecting the finality of the appeal. Baker J held that if the High Court extended time and decided the appeal, but the Court of Appeal could reverse the decision to extend time that would undermine both the decision of the High Court on the appeal and its finality. Baker J held that a decision to extend time for the appeal is a decision captured by the provisions of s. 39.

Baker J held that the appeal from the decision of the Court of Appeal would be dismissed.

Appeal dismissed.

Judgment of Baker J. delivered the 24 th day of March 2021

1

. Section 39 of the Courts of Justice Act 1936, as continued by the Courts (Supplemental Provisions) Act, 1961, makes final and unappealable any decision of the High Court on appeal from a decision of the Circuit Court. The central question for determination in this appeal is the scope of that provision and whether a decision refusing to extend time to appeal from the Circuit Court to the High Court is a decision which is, by reason of s. 39, final and unappealable.

2

. This is an appeal from the decision of the Court of Appeal that it had no jurisdiction to entertain an appeal of the refusal of Meenan J. ( [2018] IEHC 140) to extend time to appeal a decision made by the Circuit Court.

3

. This Court has already in Pepper Finance Corporation v. Cannon [2020] IESC 2 decided that as a result of the altered constitutional architecture following the establishment of the Court of Appeal, s. 39 does not prevent an appeal to the Supreme Court from a decision of the High Court exercising its appellate jurisdiction in an appeal from the Circuit Court, and that an appeal lies to this Court in exceptional cases and where the constitutional criteria of general public importance or the interests of justice are met. That can mean in some cases that a “direct appeal” can lie to this Court from certain decisions of the Circuit Court when no appeal lies to the Court of Appeal.

4

. What is under consideration in the present appeal is a different question, whether the Court of Appeal was correct that the decision of the High Court refusing to extend time to appeal a decision of the Circuit Court was final and appealable within the meaning of s. 39.

The litigation to date
5

. The background to the appeal may be briefly stated. The appellant and her husband were adjudicated bankrupt on the petition of ACC on 21 May 2012. An order for possession against the appellant and her husband was made by the Circuit Court on 28 July 2015, and the Circuit judge decided that, as the premises had at the time of the hearing in the Circuit Court vested in the Official Assignee in Bankruptcy, the appellant and Mr Fagan did not have standing to challenge the order for possession.

6

. Leave to seek judicial review in the form of certiorari was sought in the names of both Mr and Mrs Fagan, although she now asserts, through counsel, that her husband acted without her authority or consent. The application for leave was dealt with as a telescoped hearing and McDermott J. delivered a written judgment on 10 May 2016 in Fagan v. ACC Loan Management Ltd [2016] IEHC 233 in which he refused leave inter alia on the grounds that the order of the Circuit Court was not flawed on account of a breach of natural justice, and that as the Circuit Court judge was correct that the appellant and Mr Fagan did not have standing to challenge the order for possession, the order was made within jurisdiction.

7

. The Court of Appeal in an ex tempore judgment delivered on 17 July 2017 dismissed the appeal from that order.

8

. After the conclusion of the judicial review Mrs Fagan by motion of 31 July 2017 sought an extension of time to appeal the order of the Circuit Court and on 7 December 2017 the Master of the High Court granted the extension of time, a decision reversed on appeal by Meenan J. in his judgment of 7 March 2018. Meenan J. was satisfied on the evidence that Mrs Fagan had formed a bona fide intention to appeal the possession order within the time allowed by the Rules of the Superior Courts (“RSC”), and was aware that the time had expired. He noted that her stated reason for not lodging an appeal was incapacity or illness and considered that this did not constitute a “mistake” for the purposes of the second limb of the test in Éire Continental Trading Company v. Clonmel Foods Limited [1955] IR 170. He found that she had “deliberately and consciously” decided to challenge the order of the Circuit Court not by way of an appeal but by judicial review, and that it followed that no “mistake” had been made by her in not lodging the appeal on time. While that conclusion was dispositive, Meenan J. did consider the proposed grounds of appeal sought to be advanced, and came to the conclusion that these did not constitute good grounds. He therefore allowed the appeal and discharged the order of the Master of the High Court extending time.

9

. Mrs Fagan's appeal of that order was dismissed and the ex tempore ruling of the Court of Appeal (McGovern J., McCarthy and Kennedy JJ. concurring) ( [2018] IECA 353) forms the basis of the appeal to this Court as it concluded that it did not have jurisdiction by reason of s. 39 of the Act of 1936 to deal with the appeal which the Court of Appeal characterised as an appeal from a decision of the High Court exercising its statutory appellate jurisdiction from the Circuit Court.

10

. This is Mrs Fagan's appeal from that decision of the Court of Appeal, and concerns the jurisdictional issue only.

The statutory provisions
11

. Part IV of the Courts of Justice Act 1936, as continued by the Courts (Supplemental Provisions) Act 1961, provides for and regulates appeals from the Circuit Court to the High Court.

12

. The enabling provision is section 38 by which an appeal lies “from every judgment or order… of the Circuit Court”. The section regulates the conduct of the appeal, the location in which the appeal is to be heard, and provides that the appeal is heard and determined by one judge of the High Court and by way of a rehearing of the action in which the judgment or order was given: Section 38(2).

13

. For the purposes of this judgment I will where convenient use the expression “Circuit Appeal” although two types of appeals from the Circuit Court are envisaged: an appeal to the High Court on Circuit, i.e. the High Court travelling out of Dublin to provincial centres; and an appeal to the High Court sitting in Dublin hearing appeals from the Dublin Circuit Court or from provincial Circuit Court orders made in causes or matters where no oral evidence was heard at first instance.

14

. The procedures for making an appeal are set out in order 61 RSC which provides for the service of a notice of appeal within 10 days from the date on which the judgment or order appealed from was pronounced in open court. Provision is made for the lodgement of books of appeal, for...

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