The Supreme Court recently considered the principles governing applications for an extension of time to appeal. These principles were set out in the seminal case of Eire Continental v Clonmel Foods Limited [1955] 1 IR 170.
The key principles are as follows:
- that the applicant must show he had a bona fide intention to form an appeal within the permitted time;
- the existence of a mistake in the decision of the lower courts, with a mistake as to procedure not being sufficient; and
- that the applicant must be able to establish that an arguable ground of appeal exists.
However, the Supreme Court noted in this case that there has been a tendency to apply an overly prescriptive interpretation of the above principles.
Background
The appeal to the Supreme Court arose from the refusal of the Court of Appeal to allow an application for an extension of time to appeal an Order for Possession against a mortgaged property, which was granted by the High Court in March 2017. The appellant was the daughter of the registered owner of the mortgaged premises, who had taken out an equity release or "life loan" in 2007. The appellant, together with her husband, lived in the property with her late mother at the time the loan was taken out and remained in the property following her mother's death in 2009. The appellant failed to notify the lender of the death of her mother. The loan became due for repayment in November 2010; however the lender did not become aware of the death of the borrower until 2014.
The appellant was the beneficiary of the property under her mother's will, however she did not extract a Grant of Probate. Once the lender became aware of the death of the borrower, letters of demand were issued and ultimately an Administrator Ad Litem was appointed by the High Court for the limited purpose of defending the proceedings. The appellant was ultimately joined as a Notice Party to the proceedings.
The Administrator Ad Litem opposed the possession proceedings on the basis that the claim was statute barred, having been issued within 6 years from the date of death. The Administrator argued that the applicable limitation period was 2 years from the date of death. Ms Justice Baker determined that the claim was not statute barred on the basis that the 2 year limitation period applied to claims which subsisted at the date of death, rather than claims which arose as a result of the death of an individual, which she held to be the case in this instance. Having determined that the claim was not statute barred, Ms Justice Baker ultimately granted an Order for Possession against the Administrator Ad Litem in January 2017 and against the appellant, as a Notice Party, in March 2017.
In April 2018, having extracted a Grant of Probate in the interim, the appellant issued a motion in the Court of Appeal seeking an extension of time for the period to appeal. This application was rejected by the Court of Appeal, with Mr Justice McGovern finding that the appellant had not formed the requisite intention to appeal at the relevant time.
Supreme Court Decision
Ms Justice O'Malley noted “…it may be that the very familiarity with [Éire Continental] 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”. She noted however that the Court has discretion in the application of these principles and that these are not "rigid rules".
In considering the appellant's submissions, she found that the High Court had jurisdiction to make the Order for Possession and that the appellant's constitutional rights had not been infringed. Ms Justice O'Malley also found that the appellant did not have arguable grounds for an appeal, and that even if she had found that there were arguable grounds, the Court should not exercise its discretion to extend time, as there had been considerable delay.
Senior Money Mortgages Ireland Limited v Gateley and McGovern [2020] IESC 3
