Havbell DAC v Flynn

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins
• Judgment Date: 10 November 2020
• Neutral Citation: [2020] IECA 303
• Date: 10 November 2020
• Docket Number: Appeal No 2020/192
• Court: Court of Appeal (Ireland)

BETWEEN

HAVBELL DESIGNATED ACTIVITY COMPANY

Plaintiff/Respondent

AND

JAMES FLYNN

Defendant/Applicant

[2020] IECA 303

Faherty J.

Haughton J.

Collins J.

Appeal No 2020/192

THE COURT OF APPEAL

CIVIL

Summary judgment – Extension of time – Stay on judgment – Defendant seeking extension of time to appeal judgment – Whether basis for extending time had been demonstrated by defendant

Facts: The High Court (Ní Raifeartaigh J), on 17 July 2017, granted the plaintiff, Havbell, summary judgment against the defendant, Mr Flynn, in the amount of €564,157.78 plus costs (the Judgment). Havbell had sought judgment in that amount as being the balance due (including interest) on a loan advanced to Mr Flynn by Permanent TSB in 2009, which had been assigned to Havbell in 2015. Mr Flynn had contested Havbell’s claim and solicitor and counsel acted on his behalf before the High Court. Mr Flynn asked the Court of Appeal for an extension of time to appeal the Judgement and a stay on it pending the determination of his appeal. The application was prompted by the happenstance of Mr Flynn reading the decision of the Court in Promontoria (Aran) Ltd v Burns [2020] IECA 87 in the course of the Long Vacation in 2019. Burns, it was said, had “significantly clarified the law relating [to] the proofs required in summary judgment applications and in relation to the hearsay rule”. According to Mr Flynn, if the approach mandated by the Court in Burns was applied to the evidence put before the High Court by Havbell, it was clear that there was no sufficient basis for granting summary judgment against him.

Held by Collins J that no basis for extending the time had been demonstrated by Mr Flynn and accordingly he refused the application for an extension.

Collins J held that the issue of a stay on the Judgement therefore did not arise.

Application refused.

JUDGMENT of Mr Justice Maurice Collins delivered on 10 November 2020

PRELIMINARY

1 On 17 July 2017, the High Court (Ní Raifeartaigh J) granted the Plaintiff (“ Havbell”) summary judgment against the Defendant (“ Mr Flynn”) in the amount of €564,157.78 plus costs (“the Judgment”). Havbell had sought judgment in that amount as being the balance due (including interest) on a loan advanced to Mr Flynn by Permanent TSB in 2009, which had been assigned to Havbell in 2015. Mr Flynn - who is himself a solicitor - had contested Havbell's claim and solicitor and counsel acted on his behalf before the High Court.

2 The High Court Order was perfected in December 2017. At that point, Mr Flynn was entitled to appeal the Judgment to this Court and initially took steps to do so, including the preparation of a draft Notice of Appeal. However, the appeal was not lodged in time because, Mr Flynn says, his solicitors did not appreciate the shorter time-limit that was then applicable to expedited appeals (Mr Flynn's intended appeal being such an appeal). An extension of time could then have been sought from this Court in accordance with Order 86 RSC. In fact, however, it appears that an application for an extension was made to the Master of the High Court, which was obviously misconceived as the Master has no function in this context. That application was struck out in February 2018. One might then have expected an application to be made to this Court but, in fact, no such application was made because, Mr Flynn says, it was considered at that time that it would not be successful.

3 Mr Flynn appears to have abandoned any further thought of appeal at that stage. In April 2018 he applied for a personal insolvency arrangement (PIA) under the Personal Insolvency Acts 2012-2015. He had to prepare a prescribed financial statement for the purpose of that application which he was required to verify by way of statutory declaration as being “a complete and accurate statement” of his assets and liabilities. In Mr Flynn's financial statement, he identified Havbell as a creditor in the full amount of the Judgement. Havbell and other creditors opposed the proposed PIA and the application failed for want of sufficient creditor support: see the decision of the High Court (McDonald J) in In the matter of the Personal Insolvency Acts 2012-2015 and in the matter of James Flynn (A Debtor) [2019] IEHC 752.

4 Now, more than 2½ years after that misconceived application to the Master, Mr Flynn asks this Court for an extension of time to appeal the Judgement and a stay on it pending the determination of his appeal. The application was, it seems, prompted by the happenstance of Mr Flynn reading the decision of this Court in Promontoria (Aran) Ltd v Burns [2020] IECA 87 (“ Burns”) in the course of the Long Vacation in 2019. Burns, it is said, has “significantly clarified the law relating [to] the proofs required in summary judgment applications and in relation to the hearsay rule.” According to Mr Flynn, if the approach mandated by this Court in Burns is applied to the evidence put before the High Court by Havbell, it is clear that there was no sufficient basis for granting summary judgment against him.

5 Mr Flynn also invoked another subsequent decision in support of his application for an extension, that of the Supreme Court in Bank of Ireland v O'Malley [2019] IESC 84, suggesting that Havbell's summary summons and grounding affidavit failed to particularise the debt alleged to be due by Mr Flynn in the manner and detail that Bank of Ireland v O'Malley held to be required by the Order 4, Rule 4 RSC. It was never suggested to the High Court that the Indorsement of Claim in the Summary Summons here was in any way defective or deficient. In his oral submissions, counsel for Mr Flynn made it clear that it was the decision in Burns that was “the hook, line and sinker” of the application and wisely did not seek to place any significant reliance on Bank of Ireland v O'Malley. As will be evident from this judgment, the decision in Bank of Ireland v O'Malley does not, in my view, provide any basis for allowing an extension of time here.

6 In my opinion, no basis for extending the time has been demonstrated by Mr Flynn and accordingly I would refuse the application for an extension. The issue of a stay on the Judgement therefore does not arise.

THE LEGAL FRAMEWORK

7 At the level of principle, there is little or no dispute between the parties as to the relevant legal framework. It is now clear that the judgment of Lavery J for the Supreme Court in Eire Continental Trading Co v Clonmel Foods Ltd [1955] IR 170 is not to be read as laying down rigid and inflexible rules to be applied mechanically in applications for extensions of time to appeal. All relevant circumstances must be considered and the ultimate obligation of the Court is to balance justice on all sides: see per Clarke J (as he then was) in Goode Concrete v CRH [2013] IESC 39, at para 3.3. However, while the Eire Continental guidelines should not be seen as a check-list according to which a litigant will pass or fail, “it is necessary to emphasise that the rationale that underpins them will apply in the great majority of cases”: per O'Malley J for the Supreme Court in Seniors Money Mortgages (Ireland) DAC v Gately [2020] IESC 3, at para 63. ¹

8 It follows from these decisions, as well as the Supreme Court's earlier decisions in Brewer v Commissioners for Public Works [2003] 3 IR 539 and Lough Swilly Shellfish Growers Co-Op Society v Bradley [2013] IESC 16, [2013] 1 IR 227, that an extension may be granted even where one or more of the Eire Continental criteria is not met (and, in principle, may be refused even where all three criteria are satisfied). However, as Clarke J emphasised in Goode Concrete, it is difficult to envisage circumstances where it would be in the interests of justice to allow a late appeal where the Court is not satisfied that any arguable grounds of appeal have been established, for the simple reason that it “cannot be in the interests of justice to allow wholly unmeritorious appeals to progress”: para 3.4.

9 In Seniors Money Mortgages (Ireland) DAC v Gately, O'Malley J referred to that passage and stated by reference to it that the three Eire Continental criteria are not necessarily of equal importance inter se. She continued on:

“[65] By the same token it seems to me that, given the importance of bringing an appeal in good time — the desirability of finality in litigation, the avoidance of unfair prejudice to the party in whose favour the original ruling was made and the orderly administration of justice – that the threshold of arguability may rise in accordance with the length of the delay. It would not seem just to allow a litigant to proceed with an appeal, after an inordinate delay, purely on the basis of an arguable or stateable technical ground. Since the objective is to do justice between the parties, long delays should, in my view require to be counterbalanced by grounds that go to the justice of the decision sought to be appealed. Not every error causes injustice.”

O'Malley J returned to that point in her conclusions:

“[71] .. As I said earlier, it seems to me that where there is significant delay before seeking an extension, the appellant will need to show a correspondingly strong case. Since the objective is to do what is just in the circumstances as presented on the facts of each individual case, an argument based purely on a technical error by the trial judge, that cannot be described as having brought about an unjust result, may be insufficient. In my opinion, that is the situation in this case.”

10 Implicit in these passages is a characterisation of the delay in Seniors Money Mortgages (Ireland) DAC v Gately as “inordinate” and/or “significant”. Notably, the application for an extension there had issued a year after the expiry of the appeal period. Here, as already noted, the application for an extension of time issued more than 2½ years after the expiry of the...