Hughes v O'Rourke

JurisdictionIreland
JudgeHenchy J.,HEDERMAN J.,McCARTHY J.
Judgment Date01 January 1986
Neutral Citation1985 WJSC-SC 1226
CourtSupreme Court
Date01 January 1986

1985 WJSC-SC 1226

THE SUPREME COURT

Henchy J.

Hederman J.

McCarthy J.

No. 1370P./1981
HUGHES v. O'ROURKE & ORS
GERARD HUGHES
v.
PATRICK O'ROURKE, JOHN WHITE, IRELAND, THE ATTORNEYGENERAL AND THE COMMISSIONER OF AN GARDA SIOCHANA

Citations:

CARROLL V McMANUS UNREP 15.04 64

CONSTITUTION ART 34.4.3

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S14(2)

DHAND V McCRABBE 96 ILTR 197

EIRE CONTINENTAL TRADING CO LTD V CLONMEL FOODS LTD 1955 IR 170, 87 ILTR 35

GATTI V SHOOSMITH 1939 1 CH 841

MOORE'S CASE 1930 IR 670

RSC O.108 r7

RSC O.108 r8

RSC O.111

RSC O.111 r1

RSC O.58 r10

RSC O.58 r13

RSC O.58 r20

RSC O.58 r24

RSC O.58 r3

RSC O.58 r8

RULES OF THE SUPREME COURT 1926 O.38

Synopsis:

PRACTICE

Time limit

Extension - Appeal - Notice of appeal - Period for service - Expiration - Appeal from decision of the High Court - Application for extension made to Supreme Court - Jurisdiction of Supreme Court - Period extended by Supreme Court - (90/85 - Supreme Court - 17/7/85).

Hughes v. O'Rourke

SUPREME COURT

Jurisdiction

Appeal - Time limit - Extension - Notice of appeal - Period of service - Expiration - Appeal from decision of the High Court - Application for extension made to Supreme Court - Jurisdiction of Supreme Court - Period extended by Supreme Court - (90/85 - Supreme Court - 17/7/85).

Hughes v. O'Rourke

1

Judgment of Henchy J.delivered the 17th July 1985

2

The third and fourth named defendants seek an order enlarging the time fixed by the Rules of Court for serving a notice of appeal against an order of the High Court. The principles under which such an application is dealt with by this Court were laid down in Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. 1955 I.R. 170. It was submitted to this Court in that case that before an applicant seeking such an enlargement of time can succeed he must establish threethings:

3

1. that he had a bona fide intention to appeal, formed within the permitted time;

4

2. the existence of something like mistake, mistake as toprocedure and in particular mistake of counsel or solicitor as to the meaning of the relevant rule not being sufficient; and

5

3. that an arguable ground of appeal exists.

6

In dealing with that submission Lavery J., giving the judgment of the Court, said (at p. 173):

7

"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 Wilfrid Greene M.R., in Gatti v. Shoosmith 1939 1 Ch. 841 (a case resembling the present in many ways):- "The discretion of the Court being, as I conceive, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should beexercised"."

8

As appears from that passage, and as was emphasised in the judgment of the Court in Carroll v. McManus (15 April 1964; unreported), the three matters put forward for consideration must be considered in the light of all the circumstances of the case, and "the Court still has a free discretion": per O Dalaigh C.J. in Carroll v.McManus.

9

In my experience, the Court's discretion is liberally exercised, so that a would-be appellant who has allowed the time for appeal to slip by through a mistake will not be shut out from an appeal unless an extension of time would not be warranted in the circumstances of the case. I have no doubt that the circumstances of the present case warrant the exercise of the Court's discretion in favour of the applicants.

10

I consider that the only point of importance in this application arises from the submission on behalf of the plaintiff that the Court has no jurisdiction to entertain the application. This point, which apparently has never been raised before, involves the interpretation of the relevant Rules of the Superior Courts.

11

This application is made under O. 108, r. 8, of the Rules of the Superior Courts, 1962, which provides that "the Court shall have power to enlarge or abridge the time appointed by these Rules, or fixed by any order enlarging time, for doing any act or taking any proceedings...." The primary submission made on behalf of the plaintiff is that "the Court" in that context means or includes the High Court. The basis of that submission is O. 111, r. 1, which provides:

12

"In these Rules, unless there is anything in the subject or context repugnant thereto, the several words and expressions hereinafter mentioned shall have or include the meanings following:

13

......

"the Court" means either, as the context requires, the High Court or a Judge or Judges thereof, and includes the Master and the Examiner where they respectively have jurisdiction;"

14

The first question to be answered, therefore, is whether there is anything in the subject or context of O. 108, r. 8, in its application to the matter before the Court, which is repugnant to interpreting "the Court" as the High Court. In my opinion, there is. I consider it to be a fundamental principle that, in the absence of a clear provision to the contrary in a statute or a rule of court, once a final order has been made and perfected in the High Court, the jurisdiction of the High Court as to the matters determined by that order is exhausted, save possibly to the extent that a subsidiary or supplementary order may be made subsequently by consent. All matters consequent on the order of the High Court, such as a notice of appeal, a notice applying for security for the costs of an appeal, or a notice seeking enlargement of thetime for appeal, are, at least prima facie, outside the jurisdiction of the High Court. As in the case of all courts of first instance, such post-decision matters, in the absence of a clear provision to the contrary, are for a court of appeal. Because there is no such provision in the context of the present matter, I would hold that the subject of O. 111, r. 1, in the application to a motion to enlarge time for appeal, is repugnant to interpreting "the Court" in O. 108, r. 7, as meaning or including the High Court. It must, in my view, be held to connote the Supreme Court in that context.

15

It is submitted in the alternative on behalf of the plaintiff that if "the Court" in O. 108, r. 7, is to be read as meaning the High Court or the Supreme Court, this application should be made in the first instance in the High Court. It is true that O. 58, r. 20, requires that whenever under the Rules an application may be made in either the High Court or the Supreme Court, it shall be made in the first instance in the High Court. In my opinion, that rule has application only when (as, for example, in O. 58, r. 19) it is provided in the Rules that an order may be made in the High Court or in the Supreme Court. However, on my interpretation of theapplication of O. 111, r. 1, to this case, "the Court" in O. 108, r. 7, does not encompass the High Court, either solely or alternatively to the Supreme Court.

16

It has been contended on behalf of the defendants that the jurisdiction of this Court to deal with the present application is to be found in O. 58, r. 8, which provides that "the Supreme Court shall have all the powers and duties as to amendment and otherwise of the High Court." I consider, however, that that provision refers only to appeals actually pending in the Supreme Court. It ensures that the powers and duties of the Supreme Court in dealing with pending appeals shall be no less than those of the High Court in dealing with the matter at first instance. It has no reference to an intermediate matter, arising between hearing and appeal, over which the High Court neither had nor has jurisdiction.

17

Applications such as the present, made under O. 108, r. 8, of the 1962 Rules, have been dealt with without question up to now by this Court. This is the first case in which the Court's jurisdiction to entertain such an application has been questioned. Having regard, however, to the matters to which I have referred, Iam satisfied that jurisdiction to make the necessary order is vested in this Court.

18

I would allow the enlargement of time to appeal asked for.

19

JUDGMENT delivered on the 17 day of July. 1985by HEDERMAN J.

20

A notice of motion filed on the 3rd day of April 1985 on behalf of the third, fourth and fifth named defendants was served on the plaintiff, that an application would be made on the 19th day of April 1985 or at the earliest opportunity thereafter for an order extending the time to appeal from the order and decision of Mr. Justice Lynch of the High Court made on the 23rd day of November 1984 and perfected on the 19th day of December 1984. It appears from the order of the High Court that the action was struck out against the 5th named defendant. I therefore treat this as an appeal on behalf of the 3rd and 4th nameddefendants.

21

The order of the High Court gave judgment for the plaintiff -

22

(1) against the first, second, third and fourth named defendants for the sum of £45,120 with costs

23

(2) against the third and fourth named defendants for the costs ofdiscovery and as against the fifth named defendant be struck out. Other ancillary orders were made but need not be referred to for the purpose of this judgment.

24

The application was grounded upon the affidavit of Francis Cassidy together with a draft notice of appeal. The grounds stated in the draft notice of appeal are as follows:-

25

(1) That the answer of the jury to question 1 (were the first and second named defendants acting in the course or within the scope of their duty or employment as members of the Garda Siochana on the occasion in question?) was inconsistent with the evidence, incorrect andperverse.

26

2. That the learned trial Judge erred in law in allowing the jury to assess punitive damages against the third and fourth nameddefendants.

27

3. That the answer of the jury to the...

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