The High Court has refused to extend the time for Claire Rushe to appeal an order of the Master of the High Court, ruling that the appeal could not be heard because the filing deadline was missed.
Mr Justice Max Barrett said the Master’s perfected order issued on 19 July 2019. Under Order 63, Rule 9 of the Rules of the Superior Courts, the application had to be made within six days. Applying the Interpretation Act 2005, the court calculated that the deadline expired at midnight on 24 July.
The judgment said counsel for Ms Rushe correctly advised her solicitor about the deadline. However, the papers were not lodged in time by the solicitor’s town agents, who also were solicitors. They appear to have believed that 25 July was the final filing day. On the afternoon of 24 July, Ms Rushe’s solicitor called them with concerns but accepted their assurance that filing on 25 July would be sufficient. He did not travel to Dublin to file the papers himself on 24 July, as he had planned.
The judge considered the mistake to be an example of a solicitor misunderstanding a relevant rule. Referring to Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd and Brewer v. Commissioner of Public Works, he said a mistake of this kind generally does not provide a basis for extending time, while the court must consider all the surrounding circumstances.
He found no particular surrounding circumstances beyond the solicitor’s mistake, made on the advice of other solicitors despite counsel’s correct advice. The judgment said the Health Service Executive had not contributed to the error and identified no reason it should not benefit from the time limit. It also noted that Ms Rushe had a separate remedy open to her, should she choose to pursue it, without specifying what that remedy was.
The court said it was required by law to decline the extension. It did not hear or decide the appeal against the Master’s order.