Start Mortgages ltd. -v- Doorley & anor, [2018] IEHC 666 (2018)

Docket Number:2011 820 SP
Party Name:Start Mortgages ltd., Doorley & anor
 
FREE EXCERPT

THE HIGH COURT2011 No. 820 SP

Between:

START MORTGAGES LIMITEDPlaintiff– and –

JOHN DOORLEY AND MAJELLA FLAHERTYDefendants

JUDGMENT of Mr Justice Max Barrett delivered on 27th November, 2018.

  1. This is an appeal against a decision of the Master in which the principal reliefs sought are: (1) an extension of time within which to bring this appeal; (2) a discharge of the Master’s order of 18.07.2018 striking out the special summons as against the 1st-named defendant and adjourning same against the 2nd-named defendant; (3) a re-instatement of the proceedings.

  2. Under O.63, r.9 of the Rules of the Superior Courts 1986, as amended (RSC), “Any party aggrieved by an order…made by the Master may, within six days from the perfecting of the same, or…in the case of a refusal from the date of such refusal, apply to the Court to discharge such order or to make the order refused.” Here the order sought (an order transferring the matter into the Chancery Special Summons List) was refused on 18.07.2018, the perfected order issuing on 19.07.2018; the motion grounding this application issued on 30.07.2018, beyond the 6-day time limit. The court has before it an affidavit from a litigation manager with Start Mortgages who avers, inter alia, as follows:

    “[F]ollowing counsel’s attendance in the Master’s Court on 18th July, 2018, I received [an]…email dated the same date…from Lavelle Solicitors reporting…what…occurred in the Master’s Court that morning in that the Master…struck out the proceedings as against the First Named Defendant. The email…noted that counsel’s advice was to appeal….[U]pon receipt of the report and counsel’s advice, I formed the intention to appeal….I was at the time unaware of the specific time limits in which to file such…appeal…[W]ritten instructions were only provided to the solicitors on 26th July, 2018…. Lavelle Solicitors also mis-diaried the matter with the result that the appeal was…lodged a couple of days late.”

  3. The diary error seems something of a ‘red herring’. Given the delayed instructions from Start Mortgages, it does not appear that application could have been made to the court within the applicable 6-day period.

  4. The best starting-point when it comes to the enlargement of time to appeal is the judgment of Lavery J. in Éire Continental Trading Co Ltd v. Clonmel Foods Ltd [1955] IR 170, which pointed to the following as proper matters for consideration: (1) that an applicant had a bona fide intention to appeal formed within...

To continue reading

REQUEST YOUR TRIAL