The Court of Appeal has refused solicitor James Flynn’s application to extend the time to appeal a High Court judgment requiring him to pay Havbell Designated Activity Company €564,157.78, plus costs, over a loan balance.
The court, in a judgment delivered by Mr Justice Maurice Collins on 10 November 2020, said Flynn had not established a basis for the extension. Because the extension was refused, the court said his request to stay the judgment pending an appeal did not arise. The court did not determine an appeal of the underlying debt judgment.
The High Court granted summary judgment to Havbell in July 2017. The loan had been advanced by Permanent TSB in 2009 and assigned to Havbell in 2015. Flynn initially took steps towards an appeal, but it was not lodged in time. An extension application was mistakenly made to the High Court Master, who had no role in the matter; it was struck out in February 2018. No application was then made to the Court of Appeal.
Flynn later applied for a personal insolvency arrangement, identifying Havbell as a creditor for the full judgment amount. That application failed for insufficient creditor support. He sought an extension to appeal after reading the Court of Appeal’s 2020 decision in Promontoria (Aran) Ltd v Burns, arguing that it clarified the treatment of hearsay evidence in summary judgment cases. The court noted that no hearsay objection had been raised at the 2017 hearing, despite relevant earlier decisions being available. It said Havbell could have sought additional evidence had such an objection been made then, and would face prejudice in responding to a belated appeal.
The judgment also said Flynn had accepted that the €1.3 million loan was advanced and had not disputed Havbell’s calculation of the balance. His defence had been that he understood the proceeds from the sale of the secured property would fully settle his liability. The High Court had found his evidence insufficient to establish an arguable defence. The Court of Appeal said the later Burns decision did not show that the High Court judgment would be set aside.
The court found the delay was inordinate, that Flynn had not shown an intention to bring the proposed appeal within time or an operative mistake explaining the delay, and that no arguable error producing an unjust result had been demonstrated. It said a later change or clarification in case law was not, by itself, a reason to extend time, particularly where the proposed grounds could have been raised in the High Court.
The court said Flynn should pay Havbell’s costs of the application, subject to his right to notify the Court of Appeal Office within 14 days if he sought a different costs order. Judges Faherty and Haughton agreed with the judgment.