McLoughlin and McLoughlin v Smyth and Others

JurisdictionIreland
JudgeMr. Justice John Quirke
Judgment Date13 October 2006
Neutral Citation[2006] IEHC 298
Docket Number201CA/2005
CourtHigh Court
Date13 October 2006

[2006] IEHC 298

THE HIGH COURT

201CA/2005
MCLOUGHLIN v SMYTH & CANNON
MCLOUGHLIN v SMYTH & CANNON

BETWEEN

DANIEL McLOUGHLIN AND ROSEMARY McLOUGHLIN
PLAINTIFFS

AND

ANTHONY SMYTH AND EILEEN SMYTH AND MATTHEW CANNON AND DEIRDRE CANNON
DEFENDANTS

AND

BIOCYCLE LIMITED
THIRD PARTY

RSC O.61 r2

RSC O.63

RSC O.63 r1(5)

RSC O.51 r2

EIRE CONTINENTAL TRADING CO v CLONMEL FOODS LTD 1955 IR 170

BANK OF IRELAND v BREEN UNREP SUPREME 17.6.1987 1991/11/2545

DALTON v MIN FINANCE 1989 IR 269

PRACTICE AND PROCEDURE:

Appeal

Extension of time - Formation of intention to appeal - Good grounds for appeal - Consent order - Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170 and Dalton v Minister for Finance [1989] IR 269 - Rules of the Superior Courts 1986 (SI 15/1985), O61, r 2 - Appeal from Master's grant of extension of time granted (2005/201CA -Quirke J - 13/10/2006) [2006] IEHC 298 McLoughlin v Smyth

the Rules of the Superior Courts provide that the time limited for the making of an appeal against a decision of the Circuit Court is ten days from the making of the order. The defendants did not object when a prepared draft order was handed in and made a rule of court by the Circuit Court. The Circuit Court then made an award of costs in favour of the plaintiffs. The defendants then initiated an appeal of the award of costs but subsequently abandoned that appeal. They then, some months after the making of the Circuit Court order, applied to the Master of the High Court for an extension of time within which to lodge a notice of appeal against the substantive order of the Circuit Court. The Master acceded to that application. The plaintiffs appealed the order of the Master to the High Court.

Held by Mr Justice Quirke in allowing the appeal and discharging the Order of the Master that the discretion vested in the court by O 63, r 1(5) of the Rules of the Superior Courts to extend time for the lodging of an appeal was wide but not unfettered and that the time limits relating to appeals were required to bring finality to litigation. That the considerations for an extension of the time for the making of an appeal were whether the applicant had shown that he had a bona fide intention to appeal formed within the permitted time limit and whether he had established that an arguable ground of appeal had existed.

Reporter: P.C.

1

EX TEMPORE JUDGMENT of the Honourable Mr. Justice John Quirke delivered the thirteenth day of October 2006.

Mr. Justice John Quirke
2

This is an appeal against an order of the Master of the High Court dated 12th January, 2006, whereby the Master extended (until a date three weeks from 12th January, 2006), the time limited by the Rules of the Superior Courts within which the first and second defendants (hereafter "the applicants"), might lodge a Notice of Appeal against an order of the Circuit Court dated 25th February, 2003.

3

Order 61 r. 2 of the Rules of the Superior Courts provides inter alia that:

"Every appeal under Part IV of the Act shall be by notice of appeal which shall be served on every party directly affected by the appeal within ten days from the date on which the judgement or order appealed from was pronounced in open court."

4

Order 63 of the Rules provides, inter alia, as follows:

5

1. In addition to any orders which the Master may make under any other of these Rules the Master may make any of the following orders: ……

6

(5) An order for enlargement of the time for doing any act or taking any step in an action or matter.

7

The Order which is the subject of this appeal was made by the Master pursuant to the provisions of O. 63 r. 1(5) of the Rules of the Superior Courts.

8

1. The Order sought to be appealed was made by the Circuit Court (Smyth P.) in proceedings which had been commenced on 5th August, 1999, by way of an Equity Civil Bill whereby the plaintiffs sought certain reliefs arising from alleged nuisance and negligence associated with material from a waste treatment plant on the first named defendants property percolating onto adjoining property.

9

2. Oral evidence was adduced in the proceedings on the 11th and 13th November, 2002 and on the 24th and 25th February, 2003. On the latter date the parties, at the invitation of the trial judge, entered into discussions with a view to resolving the proceedings. This was attempted by what is described on behalf of the applicants as "considerable discussion between the barristers". A draft order was prepared by Mr. Butler S.C. on behalf of the plaintiffs. This order was discussed in a manner described by his solicitor as "point by point" between Mr. Anthony Smyth (for the applicants), and his Senior Counsel Mr. James Macken who explained to Mr. Smyth that an application for costs would "only follow from the making of the Order."

10

Thereafter the terms of the proposed Order were settled by Mr. Butler but without agreement as to costs.

11

The parties returned and presented the proposed Order (as settled by Mr. Butler S.C.), to the Court. Mr. Butler asked the Court to make the order in the terms of the draft order. The applicants', (then), solicitor, in an affidavit sworn during the course of these proceedings, has averred that Mr. Macken S.C., on behalf of the applicants "clearly indicated to the Court that although he was not objecting to the order being made, he was certainly not consenting to the order."

12

The trial judge then made the Order in the terms of the draft presented to him. The Order, on its face, did not recite that it had been made with the consent of the parties.

13

After argument and submissions by the parties the trial judge made an order for costs in favour of the plaintiff against the first defendant (including reserved costs and engineering costs which were to be treated as costs rather than special damages).

14

The Third Party was also awarded its costs against the applicants.

15

3. On the 11th March, 2003, the applicants, by their solicitors, served a Notice of Appeal on the parties against the awards of costs only. No Notice of Appeal was served on behalf of the applicants against the substantive order.

16

4. In an affidavit sworn by the first named defendant on 26th March, 2003, in associated proceeding the first named defendant referred to the Order sought to be appealed in this application and averred,(at para.12), that;

"It is my intention fully to comply with the terms of the said Order and to bring this whole unfortunate episode with myself and my family to an end once and for all".

17

5. Successive efforts which were made on behalf of the parties to implement the terms of the Order were frustrated, (largely by disagreements between the engineers acting on behalf of the parties and the engineer nominated in the Order to arbitrate upon specific issues). The matter came before the Circuit Court in July 2004 and thereafter pursuant to a Motion for the attachment and committal of the first named defendant.

18

In an affidavit sworn in those proceedings on 28th February, 2005, the first named defendant averred inter alia as follows:

"I wish to state that I agreed to the Order made in Court on 25th February,, 2003, on the clear understanding that it was, with the exception of the costs, a Consent order prepared by my Counsel in agreement with Counsel for the Plaintiffs and freely entered into by me. My purpose in agreeing this order was to end the process which I found extremely trying and stressful on me and my family, in particular my wife."

19

6. In a judgment delivered the 18th March, 2005, the Circuit Court (Smyth P.) dealing with the costs of the motion brought by the plaintiffs for the attachment of the first named defendant observed, inter alia, (at p. 2 of the judgment) that:

"The case was heard over a number of days in November, 2002 and on the 24th and 25th February, 2003 and it was not an unfair impression of those proceedings to describe them as hotly contested at the time. However, eventually, and to an extent when good sense prevailed and the terms of a consent order were drawn up by the parties in consultation with their legal advisors, and an order on those terms was made by the Court on 25th February, 2003 some of the details of which, I have referred to earlier."

20

7. The proceedings came before the Circuit Court (Smyth.P.) on a number of occasions between February, 2003 and July, 2005.

21

By Notice of Discontinuance dated 25th September, 2003, the applicants discontinued their appeal against the order for costs.

22

8. By Notice of Motion dated 27th May, 2005 the first named respondent sought the relief which is the subject of this appeal.

23

1. Conflicting testimony has been adduced on behalf of the parties as to whether or not the order sought to be appealed was made with the consent of the parties. Conflicting testimony has been adduced by the first named defendant himself on behalf of the applicants as to whether or not he consented to the terms of the substantive Order.

24

2. Conflicting testimony has been adduced on behalf of the parties as to the nature and extent of the disagreement which resulted after attempts were made by the parties to implement the terms of the substantive order.

25

It is not the function of this Court to seek to determine conflicts such as these and the Court will not attempt to do so.

26

The time limited for the service of a Notice of Appeal against an Order of the...

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