The High Court has extended the time for Start Mortgages Limited to appeal a Master’s decision in proceedings against John Doorley and Majella Flaherty, set aside that decision and directed that the case be transferred to the Chancery Special Summons List for hearing.
Mr Justice Max Barrett delivered the judgment on 27 November 2018. The appeal concerned a 18 July 2018 order that struck out the special summons against the first-named defendant and adjourned it against the second-named defendant. Start Mortgages also sought reinstatement of the proceedings.
The rules allowed six days to apply to discharge the Master’s order or obtain an order that had been refused. The application issued on 30 July, after that period. An affidavit from a Start Mortgages litigation manager said she intended to appeal after receiving counsel’s advice on 18 July, but was unaware of the time limit. Written instructions to solicitors were provided on 26 July. The affidavit also referred to a diary error by the solicitors.
The judge said the diary error was not the key issue: because of the delay in instructions, the application could not have been made within the six-day period. He found that the company had formed an intention to appeal in time and had an arguable appeal. He concluded that the grounds for extending time were met, and that the extension would cause no injustice. He therefore exercised his discretion in Start Mortgages’ favour.
The Master had raised concerns about service documents. These included an illegible exhibited advertisement and the absence of the original Khaleej Times newspaper. Mr Justice Barrett agreed that the advertisement was illegible, but disagreed that the original newspaper was required, noting that the court booklets contained copies of documents. He also said the first defendant’s email address was discernible and appeared in an exhibit to the affidavit of service.
The judge rejected the Master’s view that the service order did not permit the listed methods of service, reasoning that an order directing a method of service must be read as permitting it, unless the method is unlawful. He said there was no other apparent reason why substituted service was invalid: it had followed an order made on 26 January 2015 and occurred four days before the return date.
The court granted the orders sought and directed transfer to the Chancery Special Summons List for hearing. The judgment does not determine the underlying mortgage dispute.