Start Mortgages Desiganted Activity Company v John Ryall and Dolores Shields

• Jurisdiction: Ireland
• Judge: Ms. Justice Bolger
• Judgment Date: 04 April 2022
• Neutral Citation: [2022] IEHC 200
• Court: High Court
• Docket Number: [2021 No. 200 EXT.]

Between

Start Mortgages Desiganted Activity Company

Plaintiff

and

John Ryall and Dolores Shields

Defendants

[2022] IEHC 200

[2020 98 CA]

THE HIGH COURT

Extension of time – Notice of appeal – Possession – Plaintiff seeking to extend the time in which they may serve and file a notice of appeal – Whether the plaintiff would suffer prejudice if time was not extended

Facts: The plaintiff, Start Mortgages DAC, commenced proceedings by Civil Bill dated 14 May 2015 seeking possession of the family home of the defendants, Mr Ryall and Ms Shields, as a result of the defendants’ mortgage having fallen into arrears. The plaintiff applied to the High Court to extend the time in which they may serve and file a notice of appeal against the whole of the Order made by Judge O’Malley Costello on 10 March 2020 in Circuit Court proceedings bearing record number County Louth 88 EJ/15. The plaintiff submitted that the Circuit Court should not have struck out the proceedings, should have allowed the adjournment it sought, or should have proceeded to a hearing. The plaintiff claimed that immediately following the Circuit Court decision, they formed an intention to appeal and instructed their solicitors to do so. The appeal was not lodged in time and the plaintiff proceeded instead to issue the application to extend the time allowed for a notice of appeal. The plaintiff claimed it would suffer prejudice if time was not extended in that it may be precluded by res judicata, issue estoppel, or the rule in Henderson v Henderson from reissuing its possession proceedings. The plaintiff argued that this prejudice outweighed any prejudice caused to the defendants by the plaintiff’s delay in filing its notice of appeal in time.

Held by Bolger J that the Covid-19 pandemic and the commencement of lockdown on 12 March 2020 was an unprecedented event which gave rise to great challenges in many areas of life, including in managing litigation; however, in spite of the difficulties that existed, the administration of justice did continue and the Central Office remained open and their services remained available. Bolger J did not consider firstly that it was a rational mistake to conclude that it was not possible to access the Central Office to file papers after the country went into lockdown on the 12 March 2020, and secondly that it was a mistake of the type that the court should exercise its discretion to extend time and in that regard she noted from the Eire Continental guidelines that a mistake of counsel or solicitor as to the meaning of a rule is not sufficient. Bolger J did not consider the plaintiff’s solicitor’s belief that it was not possible to draft and file appeal papers within time due to lockdown was reasonable, given that the Central Office remained open and given the absence of any evidence of enquiries made with the Central Office in advance of the plaintiff’s solicitor formulating his belief about the difficulties in filing appeal papers in time or the ability or safety of attending at the Central Office. Bolger J held that the Circuit Court must be permitted to regulate its own procedures; the Circuit Court is entitled to ensure that there are consequences for a moving party seeking relief from the court against whom an adjournment is granted on a peremptory basis, who comes before the court on the adjourned date seeking a further adjournment because it has not filed the supplemental affidavit for which it sought the adjournment and which it claimed on affidavit before the High Court “needed to be filed”. Bolger J held that the defendants had the possession proceedings hanging over them for some time, during which they had been making meaningful repayments on the principle sum due and on the arrears. Bolger J did not consider it would do justice to all the parties to exercise her discretion to extend time for the plaintiff to file a notice of appeal.

Bolger J refused the plaintiff’s application. Bolger J’s indicative view on costs was, in accordance with s. 169 of the Legal Services Regulation Act 2015, that the plaintiff had not succeeded in their application and costs should therefore follow the event.

Application refused.

JUDGMENT of Ms. Justice Bolger delivered on the 4th day of April, 2022

1 This an application by the plaintiff to extend the time in which they may serve and file a notice of appeal against the whole of the Order made by Her Honour Judge O'Malley Costello on 10 March 2020 in Circuit Court proceedings bearing record number County Louth 88 EJ/15.

Background

2 These proceedings were commenced by Civil Bill dated 14 May 2015 seeking possession of the defendants' family home as a result of the defendants' mortgage having fallen into arrears.

3 The background to various adjournments sought by the plaintiff is set out in the defendants' affidavit and has not been disputed by the plaintiff. The current plaintiff acquired the mortgage debt and in January 2019 sought an adjournment of the proceedings, then before the County Registrar, to substitute the plaintiff. When the matter came before the County Registrar in April of 2019 the plaintiff sought a further adjournment to October 2019. On that occasion the plaintiff sought another adjournment for the purpose of preparing for the hearing which was granted and the County Registrar assigned a hearing date of 11 December 2019. On that date the plaintiff sought a further adjournment for the purpose of filing a supplemental affidavit. His Honour Judge O'Sullivan of the Circuit Court granted the adjournment making it peremptory against the plaintiff and awarded costs to the defendant. No affidavit was filed by the plaintiff between then and when the matter came on for hearing on 10 March 2020. At the call over on that day the plaintiff's solicitor applied for an adjournment but did not furnish any substantial reason. Her Honour Judge O'Malley Costello allowed the matter to stand to enable the plaintiff's solicitor to take instructions. Later in the day counsel was instructed by the plaintiff to renew the application for an adjournment. Her Honour Judge O'Malley Costello refused the adjournment and struck out the proceedings with costs to the plaintiff.

4 Whilst the plaintiff's counsel (who was not the same counsel instructed in the Circuit Court) claimed before this court that the Circuit Court judge refused to allow the matter to proceed to hearing for which counsel claimed the plaintiff was ready, no such claim is made by the plaintiff's deponent in the three affidavits filed before the Master and before this court in relation to this motion. The only claims asserted by the plaintiff in those affidavits were (1) that the Circuit Court judge should have adjourned the proceedings; and (2) that the plaintiff has strong grounds upon which to appeal the order of the Circuit Court judge striking out the proceedings. Counsel for the plaintiff before this court claimed that the plaintiff was denied its right to a hearing before the Circuit Court. There is no reference in the plaintiff's affidavit to any attempt made by the plaintiff to proceed to a hearing after the second application for an adjournment was made and refused.

5 Counsel for the plaintiff before this court said the Circuit Court should have proceeded to a hearing without the supplemental affidavit for which the plaintiff had sought the adjournment in December. The affidavit sworn on behalf of the plaintiff grounding this application, in referring to the adjournment granted in December to enable a supplemental affidavit to be filed, described that supplemental affidavit as one that “needed to be filed…”. Counsel for the plaintiff before this court confirmed that the plaintiff had intended to challenge the defendant's averments claiming various breaches by the plaintiff which the defendants claimed disentitled the plaintiff to possession, in the supplemental affidavit that was never sworn or filed. Counsel for the plaintiff also said that the Circuit Court would have required an update on any repayments made by the defendant within six months of the hearing in any possession hearing and that the plaintiff would have intended dealing with that in the supplemental affidavit. Counsel for the plaintiff asserted before this court that the plaintiff could have, as of 10 March 2020 and still can now in the event that time is extended...