The Supreme Court has dismissed Bernadette Fagan’s appeal over a High Court decision refusing to extend the time to appeal a Circuit Court possession order. It held that section 39 of the Courts of Justice Act 1936 barred a further appeal from that decision.
The appeal concerned jurisdiction only. The Supreme Court was not deciding the merits of the possession order or reconsidering the High Court’s reasons for refusing more time.
The judgment, delivered by Baker J. on 24 March 2021, records that ACC Loan Management Limited petitioned for the bankruptcy of Mrs Fagan and her husband, who were adjudicated bankrupt on 21 May 2012. The Circuit Court made a possession order against them on 28 July 2015. It held that they lacked standing to challenge the order because the premises had vested in the Official Assignee in Bankruptcy.
The couple later sought judicial review. The High Court refused leave in May 2016, finding, among other things, that the Circuit Court order was within jurisdiction and had not been flawed by a breach of natural justice. The Court of Appeal dismissed their appeal from that decision in July 2017.
Mrs Fagan then applied to extend the time to appeal the possession order. The Master of the High Court granted the extension in December 2017. On appeal, Meenan J. reversed that decision in March 2018. He found that Mrs Fagan had formed a genuine intention to appeal within the permitted period but knew the deadline had passed. He rejected incapacity or illness as a “mistake” under the applicable test and concluded that she had consciously chosen judicial review instead of an appeal. He also considered her proposed grounds and found they were not good grounds.
The Court of Appeal dismissed Mrs Fagan’s appeal from Meenan J.’s decision, ruling that it had no jurisdiction under section 39. She appealed that jurisdiction ruling to the Supreme Court.
Baker J. concluded that the High Court had acted under its statutory appellate jurisdiction in dealing with the extension application. The decision was connected to, and capable of affecting, the Circuit Court appeal process. Section 39 made such a decision final, the judgment said, because a further appeal could undermine the finality of the High Court’s decision on the Circuit Court litigation.
The Supreme Court dismissed the appeal. It did not reinstate the extension of time or decide the underlying possession dispute.