Bula Holdings and Others v Roche and Others

 
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[2009] IESC 36

THE SUPREME COURT

Denham J.

Kearns J.

McGovern J.

BETWEEN

[S.C. No. 364 of 2008]
Bula Holdings & Ors v Roche & Ors
BULA HOLDINGS, BULA TRUST, LOIRE INVESTMENTS, BULA LIMITED, MICHAEL J. WYMES, MICHAEL T. WYMES AND RICHARD F. WOOD
PLAINTIFFS

AND

THOMAS J. ROCHE, CRINDLE INVESTMENTS, THOMAS J. ROCHE AND FRANCIS PLUNKETT DILLON
DEFENDANTS

364/2008 - Denham Kearns [nem diss] McGovern - Supreme - 3/4/2009 - 2009 IESC 36 2009 6 1366

EIRE CONTINENTAL TRADING CO LTD v CLONMEL FOODS LTD 1955 IR 170

COMPANIES ACT 1963 S205

PRACTICE AND PROCEDURE

Time limits

Appeal - Time expired for service - Extension of time - Proceedings dismissed on grounds of no reasonable prospects of success and bound to fail - Bona fide intention to appeal formed within permitted time - Failure to serve and file notice of appeal as result of error on part of plaintiffs' solicitor - Applicable legal conditions - Whether arguable ground of appeal exists - Whether any arguable ground of appeal made out - Whether appeal likely to succeed - Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170 applied - Gatti v Shoosmith [1939] 1 Ch 841 considered - Relief refused (364/2008 -SC - 3/4/2009) [2009] IESC 36

Bula Ltd v Roche

1

JUDGMENT delivered by Mr. Justice Kearns on the 3rd day of April, 2009

2

Judgment delivered by Kearns J. [nem diss]

3

This is an application brought on behalf of the plaintiffs seeking an extension of time for the service of a Notice of Appeal from the judgment of the High Court (Edwards J.) delivered on 6 th May, 2008 which dismissed the above entitled proceedings both on the grounds that the same had no reasonable prospects of success and were bound to fail and further on the basis that the said proceedings represented an attempt to abuse the process of the court. The order of the court was perfected on 11 th September, 2008.

4

It is clear from the affidavit of Gregory Ryan sworn herein and the exhibits therein contained firstly, that the plaintiffs had formed a bona fide intention to appeal from the judgment of Edwards J. and, secondly, that the failure to serve and file Notice of Appeal arose as a result of error on the part of the plaintiffs' solicitor who was away on holiday at the time the order was perfected. Having discovered the error, Mr. Ryan wrote to the defendants' solicitors seeking consent for the late filing and service of the Notice of Appeal but by letter dated 4 th November, 2008 such consent was refused. As a result the Notice of Motion presently before the Court issued on 7 th November, 2008.

5

There is no dispute between the parties as to the relevant legal conditions applicable where time has expired for the service of a Notice of Appeal and an extension of time is then sought for filing such notice. These conditions were set out by this Court in Eire Continental Trading Co. Ltd., v. Clonmel Foods Ltd. [1955] IR 170 and are as follows:-

6

1. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

7

2. He must show the existence of something like a mistake, such as occurred in the instant case on the part of the plaintiffs' solicitor.

8

3. He must establish that an arguable ground of appeal exists.

9

As was stated by Lavery J. at p.173 of his judgment:-

"In my opinion these three conditions are proper matters for the consideration of the Court in determining whether time should be extended but they must be considered in relation to all the circumstances of the particular case. In the words of Sir Wilfred Greene M.R., in Gatti v. Shoosmith [1939] 1 CH 841:-"

"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.""

10

The Court is satisfied that the first two conditions have been met in the instant...

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