Danske Bank A/S Danske Bank v Kirwan

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 18 February 2016
• Neutral Citation: [2016] IECA 99
• Docket Number: Record No. 2015/391
• Court: Court of Appeal (Ireland)
• Date: 18 February 2016

Finlay Geoghegan J.

Irvine J.

Hogan J.

Danske Bank A/S Danske Bank

Plaintiff/Respondent

- and -

Barry Kirwan

Defendant/Applicant

[2016] IECA 99

Irvine J.

Record No. 2015/391

THE COURT OF APPEAL

Substituted service ? Conditional appearance ? Extension of time ? Applicant seeking extension of time to appeal High Court orders ? Whether applicant demonstrated any?arguable?grounds upon which he might appeal the orders

Facts: The plaintiff/respondent, Danske Bank, issued a summary summons on 15th November 2013 wherein it claimed payment from the defendant/applicant, Mr Kirwan, of a sum of in excess of ?430,000 in respect of various loan facilities. The plaintiff maintained that it effected good service of the proceedings on the defendant on 7th July 2014. This assertion was fully contested by Mr Kirwan who entered a conditional appearance to the proceedings on 3rd October 2014 in order to contest the validity of an order of Peart J made on 23rd June 2014 whereby he granted the plaintiff an order for substituted service of a summary summons on Mr Kirwan at ?Glenville Road, Wexford, Co. Wexford?. Further, he maintained that he did not receive the documents which the plaintiff contended were posted to him on foot of the order for substituted service, but rather that a friend furnished him with a printout of the relevant documentation. Mr Kirwan insisted that it was the receipt of this documentation that led him to enter his conditional appearance. By order of Cross J dated 14th July 2015 Mr Kirwan was refused certain relief which he had sought in a notice of motion initially returnable before the court on 23rd March 2015. Mr Kirwan, within the permitted ten day time limit which applies to expedited appeals, filed a notice of appeal to the Court of Appeal on 28th July 2015. The defendant applied to extend time to appeal three High Court orders: 1) the 23rd June 2014 order for substituted service; 2) the 2nd March 2015 order of Cross J whereby he deemed service of the proceedings, allegedly effected by the plaintiff, pursuant to the Order of the 23rd June 2014, to be good and sufficient service; and 3) the 23rd March 2015 order of Cross J whereby he ruled that the conditional appearance entered by Mr Kirwan on 3rd October 2013 be deemed to be an unconditional appearance for the purposes of the Rules of the Superior Courts.

Held by Irvine J that, having applied Eire Continental Trading Company Ltd v Clonmel Foods Ltd?[1955] IR 170, she was not satisfied that Mr Kirwan had demonstrated any?bona fide?grounds of appeal in relation to the order for substituted service. She was satisfied that any argument that he might wish to advance based upon the existence of a conspiracy or malicious intent on the part of the plaintiff when it obtained an order for substituted service was unstatable, irrespective of whether that argument were to be advanced on an appeal against the making of the order for substituted service or on an appeal against the refusal of the High Court judge on 2nd March 2015 to set aside the order providing for substituted service. Irvine J held that the failure to state the time on an affidavit is a defect of form only and can safely be regarded as a form of harmless error. Irvine J was not satisfied that Mr Kirwan had explained why he did not file a notice of expedited appeal against the order of 2nd March 2015 at the latest within ten days of the hearing of 23rd March 2015. In relation to the 23rd March 2015 order Irvine J held that Mr Kirwan had not demonstrated that he formed an intention to appeal the order within the ten day time limit which governs expedited appeals. Further, Irvine J noted that he had not advanced any?bona fide?ground upon which he could seek to challenge that order, as the court by that time had already deemed service to have been validly effected on 2nd March 2015.

Irvine J held that she would dismiss the appeal.

Appeal dismissed.

Judgment of Ms. Justice Irvine delivered on the 18th day of February 2016

1 This is the defendant's application to extend time to appeal a number of High Court orders. These may be summarised as follows:-

(i) The order of Mr. Justice Peart made on 23rd June 2014 whereby he granted the plaintiff an order for substituted service of a summary summons on Mr. Kirwan at ?Glenville Road, Wexford, Co. Wexford?,

(ii) The order of Mr. Justice Cross dated 2nd March 2015 whereby he deemed service of the proceedings, allegedly effected by the plaintiff, pursuant to the Order of the 23rd June 2014, to be good and sufficient service, and

(iii) The order of Mr. Justice Cross dated 23rd March 2015 whereby he ruled that a conditional appearance entered by Mr. Kirwan on 3rd October 2013 be deemed to be an unconditional appearance for the purposes of the Rules of the Superior Courts.

2 By way of background, the plaintiff issued a summary summons on 15th November 2013 wherein it claims payment from the defendant of a sum of in excess of ?430,000 in respect of various loan facilities which are detailed in an affidavit sworn by Mr. John Carron on 29th May 2015.

3 The plaintiff maintains that it effected good service of the proceedings on the defendant on 7th July 2014. This assertion is fully contested by Mr. Kirwan who entered a conditional appearance to the proceedings on 3rd October 2014 in order to contest the validity of the order for substituted service. Further, he maintains that he did not receive the documents which the plaintiff contends were posted to him on foot of the order for substituted service, but rather that a friend furnished him with a printout of the relevant documentation. Mr. Kirwan insists that it was the receipt of this documentation that led him to enter his conditional appearance.

4 Of further marginal relevance to the matters under consideration is the fact that by order of Cross J. dated 14th July 2015 he refused Mr Kirwan certain relief which he had sought in a notice of motion initially returnable before the court on 23rd March 2015. That order was perfected on 20th July 2015 and Mr. Kirwan has, within the permitted ten day time limit which applies to expedited appeals, filed a notice of appeal to this Court. This he did on 28th July 2015.

5 Accordingly, Mr Kirwan's present application is confined to an application in respect of those orders referred to at par. 1 above.

6 The principles to be applied by the court on an application such as the present one were established over fifty years ago and are to be found in the oft recited judgment of the Supreme Court in Eire Continental Trading Company Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170 where Lavery J. observed that the following were ?proper matters for the consideration of the Court when determining whether time should be extended?, namely:-

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

(ii) 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 the relevant rule was not sufficient.

(iii) He must establish that an arguable ground of appeal exists.

7 The aforementioned matters are, however, not essential pre-requisites for an applicant who seeks an extension of time to appeal and, of course, the judgment of Lavery J. should...