The High Court extended Noel O’Connor’s time to serve a notice of appeal against a Circuit Court order concerning possession of a farm and bungalow in County Kilkenny. The extension runs for 10 days from the date the High Court order is perfected. The court directed that the appeal proceed by way of rehearing and be linked to related estate proceedings for the earliest possible hearing.
In a judgment delivered on 29 October 2010, Miss Justice Laffoy considered whether Noel O’Connor had shown an arguable ground of appeal. The first two required conditions were not disputed: his solicitor said he had received instructions to appeal within the permitted period and had sent the notice by registered post and fax, but realised that a stamped copy should have been lodged with the County Registrar. An attempt to obtain more time in the Circuit Court was refused on the basis that the application was for the High Court.
The Circuit Court order, made at Carlow on 19 July 2010, required Noel O’Connor and Mary O’Connor to give the executor possession of the lands and house by 1 October 2010. It also assessed loss of profits at €25,000 for eight and a half years and made a €20,000 decree against Noel O’Connor. The claim against Isobel Levison, also known as Isobel O’Connor, was struck out after she undertook not to enter the lands, house or property without the executor’s express invitation.
The executor’s position was that Noel O’Connor had no arguable appeal against the Circuit Court’s conclusion that his ownership claim was barred under section 9(2) of the Civil Liability Act 1961. The High Court disagreed on the appeal-extension question. It said Noel O’Connor had an arguable case that the limitation provision did not prevent him from defending the possession claim on the basis that a 1985 transfer gave him title. The court stressed that this defence might or might not succeed on the facts or law. It did not determine the disputed validity or effect of that transfer, or decide ownership of the land.
The executor had argued that delay could prejudice the estate by postponing a hoped-for sale and risking a fall in value. Justice Laffoy was not satisfied that this inevitable delay was a factor the court should take into account. The judgment also recorded that three residuary beneficiaries—Catherine (Kay) Kwaak, Jenina Kwaak and Mary O’Connor—consented to the application.
The related proceedings concern administration of the estate of Eugene O’Connor under his will. The High Court’s order addressed only the time and arrangements for the appeal; the appeal itself remained to be heard.