The Court of Appeal has refused Anne Kelly’s application for more time to appeal a High Court order made in May 2015, finding that she had not shown she formed an intention to appeal within the time allowed.
The application concerned an order by Baker J on 19 May 2015 relating to Kelly Trucks Limited, which was in voluntary liquidation. The order corrected two clerical errors in an earlier order and replaced a costs order against the company with one against Kelly personally. Kelly, a former director of the company, sought an extension of time to appeal that May order. She did not seek an extension to appeal a separate order made on 13 April 2015.
Kelly said she had not known about the May hearing or order until January 2019, when she saw it mentioned in a judgment by Murphy J. The application was lodged on 24 January 2019, almost four years after the order. Costello Transport Limited’s solicitor disputed her account, relying on correspondence, a notice Kelly had signed before the hearing, and records of later communications that included copies of the order.
The Court of Appeal considered affidavit evidence from both sides about when Kelly learned of the order. It found, on the balance of probabilities, that she knew of the order well before January 2019. The court said there was no evidence that she had formed an intention to appeal within the time prescribed by the rules.
Under the principles in Eire Continental Ltd v Clonmel Foods Ltd, an applicant seeking more time must establish, among other matters, that an intention to appeal was formed in time. The court said Kelly failed to meet that first requirement. It therefore did not decide whether a mistake caused the delay or whether there were arguable grounds to challenge the order.
The court refused the extension application. Its decision concerned only the request for more time to appeal the 19 May 2015 order; it did not determine the merits of a proposed appeal against that order.