Seniors Money Mortgages (Ireland) DAC v Gately

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Malley
• Judgment Date: 04 February 2020
• Neutral Citation: [2020] IESC 3
• Court: Supreme Court
• Docket Number: [Supreme Court Appeal No: 102/2018],[S.C. No. 102 of 2018]
• Date: 04 February 2020

BETWEEN:

SENIORS MONEY MORTGAGES (IRELAND) DAC

PLAINTIFF/RESPONDENT

-AND-

DEREK GATELY

DEFENDANT

-AND-

JACQUELINE MCGOVERN

NOTICE PARTY/APPELLANT

[2020] IESC 3

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley J.

[Supreme Court Appeal No: 102/2018]

THE SUPREME COURT

Extension of time – Possession – Properties – Plaintiff seeking to appeal against the dismissal by the Court of Appeal of an application to extend the time within which to appeal an order of the High Court – Whether the appellant’s rights had been violated by an order made in the absence of jurisdiction

Facts: The notice party/appellant, Ms McGovern, appealed to the Supreme Court against the dismissal by the Court of Appeal of an application to extend the time within which to appeal an order of the High Court. The order in question granted possession of certain mortgaged premises, in which the appellant and her husband lived, to the plaintiff/respondent, Seniors Money Mortgages (Ireland) DAC. The appellant contended that the High Court order was posited on the status of the property as registered land and was therefore made without jurisdiction. The Court of Appeal expressed the view that this might have been arguable. However, the members of the Court considered that the potential arguability of an appeal was outweighed by the absence of both an intention to appeal formed within the time limit and any satisfactory excuse for the delay. The appellant’s case was, in effect, that she was entitled to relief as of right because her rights had been violated by an order made in the absence of jurisdiction.

Held by O’Malley J that she could not see that this argument was capable of being made out. She noted that the claim for relief under the Registration of Title Act 1964 mislead the trial judge on the 26th January 2017. She said that the grounding affidavit and the exhibited documents were to the contrary effect. The main point, in her view, was that no final order was made on that date. The trial judge stated that she would make an order as against the defendant, but that she had not as yet considered what might be said by the appellant. She was contemplating the possibility of making the appellant a defendant in the case, should it transpire that she had a defence to an order for possession. Finally, she requested counsel for the plaintiff and defendant to liaise with each other and the registrar in respect of the appropriate form of order, to be checked by herself before finalisation. O’Malley J held that all of this was inconsistent with a final order. She noted that the order as perfected made no reference to the Registration of Title Act and that the misapprehension as to the status of the land was rectified on the 9th March 2017. The two orders were perfected after that, and she could see no reason for presuming that the original error from the previous date continued to taint either of them. The description of the final order as having been made without jurisdiction seemed to her untenable; the High Court undoubtedly had jurisdiction to make an order for possession simpliciter, and that is what was done. O’Malley J found against the appellant on the basis that there was no arguable ground.

O’Malley held that she would dismiss the appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice O'Malley delivered on the 4th day of February 2020

Introduction

1 This appeal is against the dismissal by the Court of Appeal of an application to extend the time within which to appeal an order of the High Court. The order in question granted possession of certain mortgaged premises, in which the appellant and her husband live, to the plaintiff (hereafter “the respondent” or “the lender”).

2 The exercise of an appellate court's discretion to extend, or to refuse to extend, time within which to appeal, has for decades been informed by the judgment of this Court in Eire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170. However, it may be that the very familiarity with the judgment on the part of judges and practitioners can on occasion lead to the assumption that it confines the discretion by reference to a set of mandatory conditions, and that failure on the part of a would-be appellant to comply with one or more conditions must lead to a refusal of an extension. It may therefore be helpful to commence with a short examination of the judgment and of some of the more recent decisions of the Court.

3 In Eire Continental, counsel resisting an application for an extension of time made submissions to the effect that there were “rigid rules” prescribing the conditions in which time should be extended. In so doing, counsel was, according to Lavery J., following the lines of a dissenting judgment by Fitzgibbon J. (in Moore v. Attorney General (No.4) [1930] I.R. 560). Fitzgibbon J. had considered that it was necessary that an applicant should give some good reason to support the contention that the judgment to be appealed was wrong, and also show that a bona fide intention to appeal had been formed before the time expired. However, Kennedy C.J. and Murnaghan J. had taken the view that the older line of authority had been superseded by a new, simplified version of the relevant Rule, and that the power was within the discretion of the court, to be exercised in the light of the facts and circumstances of the particular case. It is clear that Lavery J. and the other members of the Court in Eire Continental preferred the approach of the majority.

4 In a well-known passage, Lavery J. referred at p. 173 of the report to a submission by counsel for the respondent that there were three conditions that “must” be satisfied before the court would allow an extension.

“These conditions were:-

1, The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

2, He must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of a rule was not sufficient.

3, He must establish that an arguable ground of appeal exists.”

5 Lavery J. then stated that in his opinion these were “proper matters for the consideration of the Court” in determining whether time should be extended. However, it is important to note that the judgment continues:

“… [b]ut they must be considered in relation to all the circumstances of the case. In the words of Sir Wilfred Greene M.R., in Gatti v. Shoosmith (a case resembling the present in many ways): - ‘The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised.’”

6 At p. 174 Lavery J. stated that he was satisfied that the applicant in the case either had the intention of appealing “or at least the intention to consider whether an appeal would be justified” and that this was sufficient in the circumstances of the particular case. He then referred to authorities demonstrating that in a proper case the mistake of solicitor or counsel as to the rules about time might, even under the old practice, have been a sufficient ground. It seems clear that in so doing he was indicating that he did not fully accept counsel's proposition on this aspect either. On the final question, as to whether it was necessary to show the existence of an arguable ground of appeal, Lavery J. expressed the view that what needed to be shown was that the proposed appeal had “substance” and was not merely intended to gain time and to postpone the day of reckoning.

7 There is no doubt but that over the years there has been a tendency to take the passage quoted above, which simply summarised counsel's submission, as encapsulating the ruling of the Court. However, while the three factors have been endorsed in innumerable judgments, from time to time there has been a reminder that the Court did not, in fact, lay down the “rigid rules” that the respondent in Eire Continental advocated. Thus, in Brewer v. Commissioners of Public Works [2003] 3 I.R. 539 Geoghegan J. emphasized that it did not necessarily follow in all circumstances that a court would either grant the extension if all three conditions were fulfilled, or refuse it if they were not. The court still had to consider all the surrounding circumstances. In Brewer, the Court concluded that the defendant had at all times intended to appeal. It was accepted that there had been a mistake, but it was an “irrational” mistake that could not be seen as operative. Finally, the Court considered that there was no basis on the facts of the case for an appeal on the issue of liability. If absolute compliance with Eire Continental had been necessary, an extension could not have been given. However, having regard to all the circumstances of the case, the Court gave an extension for a limited appeal in relation to damages only.

8 In Lough Swilly Shellfish Growers Co-Op Society Ltd. v. Bradley [2013] 1 I.R. 227 it was accepted by the Court that the criteria were guidelines and that the court retained a residual discretion. In Goode Concrete v. CRH plc [2013] IESC 39, which will be referred to further below, Clarke J. agreed that the specific three criteria discussed in Eire Continental would suffice in the “vast majority” of cases. However, there could be cases where different considerations applied.

9 In this appeal the central issue to be determined by this Court is whether it should extend time if it is satisfied that there are arguable grounds of appeal, even if not satisfied either that there was a bona fide intention to appeal formed within the prescribed period or that there was something in the form of a mistake to excuse delay in bringing forward the appeal.

The High Court

10 The lender's claim was for an order for possession of certain property in Co. Leitrim, on foot of a deed of...