The High Court refused Start Mortgages Designated Activity Company’s application to extend the time for appealing an order that struck out its possession proceedings against John Ryall and Dolores Shields. The ruling did not decide the underlying possession claim or make a final costs order on the extension application.
The possession case began in 2015 over mortgage arrears on the defendants’ family home. After several adjournments sought by the lender, the Circuit Court made a December 2019 adjournment peremptory against it and awarded costs to the defendants. The lender had sought time to file a supplemental affidavit. It did not file one before the next hearing, on 10 March 2020.
At that hearing, the Circuit Court refused a further adjournment and struck out the proceedings, with costs to the plaintiff, Start Mortgages. The lender applied to the High Court to extend the deadline to appeal the whole order. It argued that the Circuit Court should have granted another adjournment or proceeded to a hearing.
The lender attributed its late appeal to practical difficulties and confusion caused by the Covid-19 pandemic and the start of lockdown. It said it had formed an intention to appeal immediately after the Circuit Court decision. The defendants disputed that account and pointed out that the Central Office remained open. They also relied on repayments they had made towards the principal and arrears while the possession proceedings had been pending.
Justice Bolger accepted that the principles governing extensions of appeal time are guidelines, and that the court retains discretion to balance justice on all sides. But she found the lender had not explained the basis for its belief that papers could not be filed in time, or shown that it had contacted the Central Office. She considered the Central Office’s continued availability, the peremptory adjournment and the importance of orderly court procedure. She also noted that the lender’s intended supplemental affidavit had not been filed and could not now provide the proposed response to the defendants’ evidence or an update on repayments.
The judge concluded that extending time would not do justice to all parties and refused the application. Her stated preliminary view was that costs should follow the event because the lender had not succeeded. She invited further submissions on costs or final orders and listed the matter for 10 am on 26 April 2022. The judgment does not state the result of that later listing.