Eire Continental Trading Company Ltd v Clonmel Foods Ltd

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 11 November 1955
• Date: 11 November 1955

Eire Continental Trading Co., Ltd. v. Clonmel Foods, Ltd.

EIRE CONTINENTAL TRADING COMPANY LIMITED, Plaintiffs (Respondents)

and

CLONMEL FOODS, LIMITED, Defendants (Applicants) (1)

Supreme Court.

Practice - Appeal to Supreme Court - Extension of time for appeal - Discretionary order - Rules of the Supreme Court (Ir.), 1905, Or. LVIII, r. 15,no longer applicable - Rules of the High Court and Supreme Court, 1926,Or. I, r. 1; Or. XXV, r. 5; Or. XXXVIII.

On the 25th July, 1952, judgment was given in the High Court in favour of the plaintiffs for a sum of £3,600, the question of costs being reserved. On the 30th July, 1952, the trial judge gave judgment in favour of the plaintiffs in respect of the costs of the action and ordered that execution on foot of these judgments should be stayed until the 10th October, 1952, and that if before that date the defendants served a notice of appeal execution should be further stayed until the appeal was disposed of by the Supreme Court. The order was perfected on the 1st August, 1952. Notice of appeal was not served within the time limited by the Rules of the High Court and Supreme Court, Or. 25, r. 5. On an application to the Supreme Court for an order extending the time for bringing such appeal it was

Held by the Supreme Court (Maguire C.J., Murnaghan, O'Byrne, Lavery and Kingsmill Moore JJ.)

1, Or. 58, r. 15, of the Rules of the Supreme Court (Ir.), 1905, is no longer applicable to applications for extension of time for appeal to the Supreme Court.

2, The granting or refusal of liberty to appeal, notwithstanding that the applicant had failed to appeal within the prescribed time, is a matter of discretion in the exercise of which the Court will consider whether the applicant had formed a bona fide intention to appeal within the prescribed time; the existence of any element of mistake, whether there is an arguable ground of appeal; and all the other circumstances of each particular case.

3, The order of the High Court was made in excess of jurisdiction in so far as, by necessary implication, it allowed the defendant to serve notice of appeal after the expiration of 21 days from the perfection of the said order.

4, The order of the trial Judge was evidence that there was substance in the proposed appeal, and that in the circumstances the application should be granted without any special conditions.

Notice of Motion.

The applicants, the Eire Continental Trading Company, Limited, applied to the Supreme Court for an order granting them liberty to appeal from an order of the High Court (Davitt P.), notwithstanding that the time for the making of such appeal, as provided by the Rules of the Supreme Court and High Court, 1926, Order XXV, rule 5, had expired. The facts of the case have been summarised in the headnote and are fully set out in the judgment of Lavery J. (post).

Cur. adv. vult.

Maguire C.J. :—

I have read the judgment of Mr. Justice Lavery and I agree with it.

Murnaghan J. :—

I have read the judgment prepared by Mr. Justice Lavery and I agree with it.

O'Byrne J. :—

I also have read the judgment prepared by Mr. Justice Lavery and I agree with it.

Lavery J. :—

The defendants move for an order that the time for appealing against the judgment and order of the High Court made on the 30th July, 1952, and perfected on the 1st August, 1952, be extended and that execution on foot of the judgment and order be stayed until the appeal is disposed of by this Court.

As appears from the Registrar's certificate the action was at hearing before the President of the High Court without a jury for fourteen days and was adjourned for judgment.

On the 25th July, 1952, the learned President delivered a written judgment, finding for the plaintiffs for the sum of £3,600 and gave judgment for this sum, but reserved the question of costs.

On the...