About this case:

• Citation:
  [2020] IEHC 106
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Charles Meenan

Mr Justice Charles Meenan heard the matter by way of an appeal taken by Malcolm Trevor Jones against an Order of the Master of the High Court where he extended the time in which to appeal of the Orders of the Circuit Court.

Background

The case relates to a claim for damages for breach of contract. The contract is alleged to have been entered into in November 2011, where the defendants Nicholas Maher and Nicholas Martin Maher agreed to act as agent for Mr Jones in the purchase of cattle by Mr Jones and to arrange transportation to the UK. Mr Jones contends that the parties agreed that the defendants would furnish details of all VAT claims paid and refunds received, and argues that he is entitled to be paid all VAT refunds.

Mr Jones sought discovery of all bank statements in respect of the defendant’s Bank of Ireland account from November 2011 to the present, and all invoices in respect of animals sourced by the defendant for him between 3 December 2011 and 9 February 2014. He further sought all documents in respect of VAT refunds received by the defendant arising out of the said purchases.

Discovery was ordered by the Tipperary County Registrar, on consent, on 16 February 2017, and was to be made within six weeks of the order. Discovery was not made in the six weeks allowed and so a motion to strike out the Defence was brought on 19 April 2017.

This motion came before the County Registrar on 20 July 2017, and the Order was granted. A stay was put on the Order striking out the defendants’ Defence for three weeks, and in the event of discovery being made within that period the said Order would be vacated. Discovery was not complied with.

The plaintiff then sought judgment in the sum of €65,837.90, the Defence having been struck out. In the meantime, an application to extend the time to appeal the Order striking out the Defence was granted to the defendants, but they then failed to prosecute any appeal.

On 30 May 2018, the Circuit Court refused an application to set aside the decision of the County Registrar striking out the defendants’ defence. Further, the Circuit Court granted to Mr Jones judgment against the defendants in the sum of €65,837.90, together with costs.

On 30 May 2018, the Circuit Court heard an application by the defendants seeking to extend the time to appeal the Order of the County Registrar striking out the Defence for failing to make discovery. The Circuit Court heard the defendants’ application in full and refused it on its merits.

The defendants brought proceedings for the extension of time for the purposes of bringing an appeal against the Order of the Circuit Court made on 10 May 2019. That came before the Master of the High Court on 10 May 2019 who extended the time in which to appeal by a period of fourteen days.

This matter came before the High Court by way of an appeal by the plaintiff against the Master’s Order.

Conclusion

Mr Justice Meenan referred to the principles in Éire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] IR 170; being that the applicant must show that he had a bona fide intention to appeal formed within the permitted time. The applicant must show the existence of something like mistake and that mistake as to procedure and in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient. The applicant must establish that an arguable ground of appeal exists.

The judge said that the principles “though well established, should not be considered as if they were statute law”, and noted that the court retains an overall discretion and it may be that, in a particular case, these principles would not fully apply. However, this was not such a case.

Mr Justice Meenan allowed the appeal, concluding that the Master erred in extending time for an appeal of the Orders of the Circuit Court.