The High Court has allowed Bank of Ireland’s appeal against an order that gave David Morrissey extra time to appeal a Circuit Court possession order over his family home in County Kildare.
In a judgment delivered on 31 May 2019, Mr Justice Michael MacGrath set aside the Master of the High Court’s 27 April 2018 decision extending the appeal deadline. The ruling means Mr Morrissey’s appeal against the Circuit Court possession order could not proceed under that extension. The High Court did not reconsider the possession claim itself.
The Circuit Court made the possession order on 24 October 2017 and granted a six-month stay of execution. Mr Morrissey said he intended to appeal, but did not file within the ten-day period. He instead sought leave to bring judicial review proceedings, alleging, among other things, that the Circuit Court judge had shown bias and denied him fair procedures. Noonan J refused leave on 22 January 2018. Mr Morrissey later sought an extension of time to appeal, which the Master granted.
Bank of Ireland opposed the extension. Its evidence was that Mr Morrissey had consciously chosen judicial review over an appeal and had not explained why he missed the deadline. Mr Morrissey said he had made a mistake, lacked legal advice and had arguable grounds of appeal. He also relied on his timely stated intention to appeal.
The High Court accepted that Mr Morrissey had formed an intention to appeal within the permitted time. But it was not satisfied that his choice to pursue judicial review instead amounted to the kind of operative mistake required under the applicable test for extending time. The judge also said that a mistake about the appeal time limit would not be operative.
The court considered whether to extend time in its discretion, including the balance between allowing potentially meritorious appeals and ensuring finality and orderly administration of justice. It found that the complaints Mr Morrissey wished to raise concerned events and material known to him at the end of the Circuit Court hearing, rather than facts discovered later. In those circumstances, the court concluded that allowing the appeal to proceed would not serve the overall administration of justice or the balance of justice between the parties.
The judgment noted that the parties disputed whether the rule in Henderson v Henderson applied to issues raised in the judicial review proceedings. The judge said it was unnecessary to resolve that point because Mr Morrissey did not satisfy all the required conditions for an extension. The High Court therefore allowed the bank’s appeal from the Master’s order.