Kelly Trucks Ltd (in Voluntary Liquidation)
| Jurisdiction | Ireland |
| Judge | MR. JUSTICE MICHAEL PEART |
| Judgment Date | 23 July 2019 |
| Neutral Citation | [2019] IECA 207 |
| Docket Number | Neutral Citation Number: [2019] IECA 207 |
| Court | Court of Appeal (Ireland) |
| Date | 23 July 2019 |
[2019] IECA 207
THE COURT OF APPEAL
Peart J.
Peart J.
McGovern J.
Costello J.
Neutral Citation Number: [2019] IECA 207
Record Number: 2019 No. 18
IN THE MATTER OF KELLY TRUCKS LIMITED (IN VOLUNTARY LIQUIDATION) AND IN THE MATTER OF THE COMPANIES ACTS 1963-2014
Extension of time – Slip rule – Delay – Applicant seeking an extension of time to appeal against an order of the High Court – Whether the applicant formed an intention to appeal against the order within the time permitted by the Rules for doing so
Facts: Mrs Kelly, a former director of Kelly Trucks Ltd (in voluntary liquidation), applied to the Court of Appeal for an extension of time to appeal against an order of the High Court (Baker J) dated 19th May 2015. The order was made (i) under O. 28, r.11 RSC (the slip rule) whereby two minor clerical errors appearing in an order dated 13th April 2015 were corrected, and (ii) the costs order made therein against Kelly Trucks Ltd was deleted and replaced by a costs order against Mrs Kelly personally, as it was she, and not the company who had strenuously but unsuccessfully opposed the making of the amendments. Mrs Kelly was not present in court when this order was made.
Held by Peart J that, in circumstances where he had rejected Mrs Kelly’s evidence that she became aware of the order only in January 2019, there was no explanation for the delay of almost 4 years which had passed since the making of the order which she sought to appeal. The onus was upon Mrs Kelly to satisfy the court that she came within the principles of Eire Continental Ltd v Clonmel Foods Ltd [1955] IR 170, and in Peart J’s view she had failed to discharge that onus.
Peart J held that he would therefore refuse Mrs Kelly’s application for an extension of time.
Motion refused.
The application before the Court for determination is one made by Anne Kelly, a former director of Kelly Trucks Limited (In Voluntary Liquidation) (‘the company’) for an extension of time to appeal against an order of the High Court (Baker J.) dated 19th May 2015.
The order which Mrs Kelly wishes to appeal against was made (i) under O. 28, r.11 RSC (‘the slip rule’) whereby two minor clerical errors appearing in an order dated 13th April 2015 were corrected, and (ii) the costs order made therein against Kelly Trucks Limited was deleted and replaced by a costs order against Mrs Kelly personally, as it was she, and not the company who had strenuously but unsuccessfully opposed the making of the amendments. Mrs Kelly was not present in court when this order was made, and I will return to the question of whether she was on notice of the application.
The order dated 13th April 2015 had itself made certain amendments under the “slip rule” to an earlier order made on the 17th February 2014. That slip rule application was strenuously opposed by the present applicant/appellant Mrs Kelly, a former director of the company, such that very unusually for such an application the hearing lasted half a day. She had been put on notice of the proposed application to be made on the 13th April 2015 by order of the High Court (Cregan J) dated 9th March 2015, and was present in court to oppose it. There was no appeal lodged against the said order dated 13th April 2015, and no application for any extension of time was sought to do so. The present application to extend time to appeal is confined to the order dated 19th May 2015.
On this application for an extension of time to appeal, the Court is not concerned with the history of the litigation that has arisen. It is lengthy and complex, and there is much acrimony between the parties from what I can see from the papers filed in this Court. But that background is of no relevance to the straightforward application now before this Court for determination, which essentially involves a decision by the Court as to whether Mrs Kelly has satisfied the criteria that she must establish to the satisfaction of the Court in accordance with the principles in Eire Continental Ltd v. Clonmel Foods Ltd [1955] IR 170. Those principles are essentially (i) that she must have formed an intention to appeal against the order within the time permitted by the Rules for doing so; (ii) that due to something akin to mistake, she failed to do so; and (iii) that she can demonstrate arguable grounds of appeal.
It is clear also that the Court has a discretion as to whether to extend time, and all the circumstances of the case can be had regard to in the exercise of that discretion. In other words, as appears from the judgment of Geoghegan J. in Brewer v. Commissioners of Public Works in Ireland [2003] 3 I.R. 539 it does not follow necessarily that where all the criteria are satisfied that time will be extended, and neither is the converse true, namely that where not all the criteria are satisfied that time will not be extended. The Court enjoys a wide discretion on such applications.
The affidavit sworn by Mrs Kelly on the 24th January 2019 grounded the present application. It is a lengthy affidavit considering the nature of the application which it grounds, but none of it addresses the question as to whether within the time permitted to appeal the said order she formed an intention to do so. The nearest she comes to that question is in para. 2 where she states the following:
‘I say that I seek and am entitled to an Order abridging the time permitted to file and serve a Notice of Appeal and or leave to Appeal the herein matter owing to the fact in law that the Order of Baker J of the 19th day of May 2015, the Order complained of herein, was made by surprise and without Notice and or service of any proper application whatsoever to the Appellant/Respondent in the complained of proceedings bearing record number 2014/28COS.’
The said affidavit did not state directly why a period of almost four years has elapsed before her application for an extension to appeal against it was lodged, or the date on which she first became aware that it had been made by the High Court.
In response to the averment that the said order was obtained by surprise and without notice or proper service of an application on her, Cormac O'Regan, solicitor acting for Costello Transport Limited has exhibited two documents in his replying affidavit sworn on the 8th March 2019, namely (i) a letter from the Courts...
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