Munster Wireless Ltd. v A Judge of The District Court & ors [2019] IECA 286 (14 November 2019)
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THE COURT OF APPEAL
[2019] IECA 286
Record Number: 2019/328
Whelan J.
Costello J.
Murray J.
BETWEEN/
MUNSTER WIRELESS LIMITED
APPLICANT
- AND -
A JUDGE OF THE DISTRICT COURT
RESPONDENT
- AND –
TIPPERARY COUNTY COUNCIL
AND IRELAND AND THE ATTORNEY GENERAL
NOTICE PARTIES
JUDGMENT of Ms. Justice Máire Whelan delivered on the 14th day of November 2019
Introduction
1. This is an application for an extension of time to appeal the order of Ms. Justice Faherty
made 26th July, 2018 (perfected 14th August, 2018) of a preliminary issue directed to be
tried prior to the hearing of an application for leave to apply for judicial review. The issue
for determination was whether, contrary to the well-established rule in Battle, it was
legally permissible for the company Munster Wireless Limited to be represented by
William Fitzgerald, one of its directors, rather than a professional legal representative.
2. Mr. Fitzgerald appeared on behalf on the applicant company throughout.
3. In a judgment delivered on 28th June, 2018 (further considered below) Faherty J. held
that Mr. Fitzgerald was not entitled to represent the company in the application for leave
to apply for judicial review. She further held that no issue of European law arose in the
proceedings.
4. Mr. Fitzgerald applied to the Supreme Court for leave to pursue a leapfrog appeal from
the judgment of Faherty J. The application for a leapfrog appeal was refused in a
determination of the Supreme Court made on the 16th May, 2019.
5. Subsequently, Mr. Fitzgerald attended at the Court of Appeal office where he was advised
that he ought to have lodged a notice of appeal prior to seeking leave to leapfrog appeal
to the Supreme Court and was by then out of time to lodge an appeal.
6. He contends that the substantive legal issues in the intended appeal have not been dealt
with and he seeks an extension of time to appeal the decision of Faherty J. of the 28th
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June, 2018. He deposes that had he known of the requirement to lodge a notice of
appeal with the Court of Appeal he would have done so.
7. The only respondent to this application is the State, with the District Court judge and
Tipperary County Council taking no part in the matter.
Legal principles
8. The principles governing an application to extend time to appeal are set forth in the
decision of Lavery J. in Éire Continental Trading v. Clonmel Foods Limited [1955] I.R.
170. In his judgment Lavery J. identified the factors to which a court should give
consideration on such an application: -
(1) whether the applicant has demonstrated that he has formed a bona fide intention to
appeal the order in question within the time prescribed by the Rules of the Superior
Courts;
(2) whether the applicant can identify some mistake which caused him to miss the time
limit specified for lodging an appeal; and,
(3) whether the applicant has demonstrated that an arguable ground of appeal exists.
9. Each of the three factors are, as Lavery J. stated, proper matters for the consideration of
the Court but are not binding pre-requisites. The over-arching obligation of the Court is
to have regard to all of the circumstances of the case and to avoid visiting an injustice on
either party to the litigation. The principles do not have the status of legislation.
However, it is clear from decisions such as Murphy J. in O’Sullivan v. O’Halloran
[2002]I.E.S.C. 32 that compliance with the third part of the test is of the utmost importance and
unless the Court is satisfied that a proposed appellant has arguable grounds of appeal a
court cannot appropriately make an order extending time.
10. Regarding the first and second parts of the test it is noteworthy that the respondent does
not appear to take issue that same can be treated as satisfied. In an affidavit of Kevin
Condon sworn 25th July, 2019 he states: -
“I say and am advised that while the Applicant may have formed a bona fide
intention to appeal the determination within the permitted time and was mistaken
as to the necessity to lodge papers in the Court of Appeal in advance of bringing an
application for leave to appeal to the Supreme Court… that the Applicant has failed
to put forward any arguable ground of appeal.”
11. I am satisfied that compliance with the first and second ground can reasonably be
inferred in circumstances where Mr. Fitzgerald lodged his application for a leapfrog appeal
with the Supreme Court in time and deposed that had he known of the requirement to
lodge a notice of appeal with the Court of Appeal he would have done so. Therefore, the
central issue is whether the applicant has demonstrated any bona fide grounds of appeal.
The background
Page 3 ⇓
12. In November 2016 Mr. Fitzgerald, a director of the company Munster Wireless Limited,
signed an application for leave to seek judicial review. The preliminary issue before the
High Court was whether a director whom the company purports to vest with appropriate
authority pursuant to statute to bind the company is thereby entitled to file papers in
court and initiate and conduct proceedings on behalf of the company.
13. Mr. Fitzgerald contended that section 41 of the Companies Act, 2014 conferred such an
entitlement on him to represent the company in litigation.
14. Section 41 provides: -
“(1) Notwithstanding anything in its constitution, a company may empower any person,
either generally or in respect of any specified matters, as its attorney, to execute
deeds or do any other matter on its behalf in any place whether inside or outside
the State.
(2) A deed signed by such attorney on behalf of the company shall bind the company
and have the same effect as if it were under its common seal.”
15. The respondent contended that the import of section 41 was merely to permit a person to
stand in the shoes of the company and to act on behalf of the company in limited
circumstances such as in the execution of documents but it had no bearing on the right of
the courts to regulate who appears before it.
16. In her judgment Faherty J. observed: -
“To my mind the power of attorney referred to in s. 41 of the 2014 Act does not
divest the company, or the attorney acting in its place, of the company’s
incorporated status. Even if Mr. Fitzgerald had power of attorney (of which there is
no evidence) that does not transform Mr. Fitzgerald’s position into something
analogous to a natural person who wishes to conduct his or her litigation in person.
Thus, Mr. Fitzgerald’s reliance on s. 41 cannot be dispositive of his entitlement to
file pleadings on behalf of the company or to represent it in court.”
17. Faherty J. noted that the right of audience of a shareholder or a director of a company to
appear on behalf of the company in court was considered in Battle v. Irish Art Promotion
Centre Limited [1968] I.R. 252 where the managing director of a company brought an ex
parte motion seeking liberty to conduct the defence to the plaintiff’s action on behalf of
the company. Ó Dálaigh C.J. in the Supreme Court, noting the earlier English decision of
Tritonia Limited v. Equity and Law Life Assurance Society [1943] A.C. 584, observed: -
“In the absence of statutory exception, a limited company cannot be represented in
court proceedings by its managing director or other officer or servant. This is an
infirmity of the company which derives from its own very nature. The creation of
the company is the act of its subscribers; the subscribers, in discarding their own
personae for the persona of the company, doubtless did so for the advantages
which incorporation offers to traders. In seeking incorporation they thereby lose
Page 4 ⇓
the right of audience which they would have as individuals; but the choice has been
theirs.”
The rule in Battle was subsequently endorsed by the Supreme Court in Coffey v. Tara
EU law argument
18. Mr. Fitzgerald contended that the rule in Battle contravened Article 54 of the Treaty on
the functioning of the European Union (TFEU).
Article 54 states: -
“Companies or firms formed in accordance with the law of a Member State and
having their registered office, central administration or principal place of business
within the Union shall, for the purposes of this Chapter, be treated in the same way
as natural persons who are nationals of Member States.”
19. He argued that since it is not a requirement for a natural person to be represented by a
qualified legal professional in court and a natural person is entitled to represent himself, it
must follow that a company is also not required to be represented by a legal professional.
Faherty J. at para. 37 of her judgment found that Article 54, when considered in its
context, had no bearing on the law in this jurisdiction which requires a company to be
represented by a lawyer: -
“Article 54 relates solely to the freedom to establish companies across the EU and,
having so established in Member States, companies are to be treated in the same
way as natural persons who are nationals of Member States.”
20. The judge observed that even Article 19 of the Statute of the Courts of Justice of the EU
provides that the right of audience of any individual other than a Member State or an
institution of the EU before the ECJ requires that such individual be represented by a
lawyer.
contending that the rule in Battle was contrary to Articles 20, 47 and 52. At para. 48 of
her judgment Faherty J. stated: -
“Apart from the Court’s finding that no issue of EU law arises in respect of Mr.
Fitzgerald’s claimed entitlement to represent the company in court, Mr. Fitzgerald
has failed to point to any EU element in the matter of the dispute between Munster
Wireless Limited and the respondent such as would entitle him to invoke the
provisions of the Charter.”
She considered the High Court decision in AIB Plc v. Aqua Fresh Fish Limited
[2015] IEHC 184 adopting the dictum of Keane J. who had determined that the Charter had no
applicability to the issue of the rule in Battle – the key issue which she had to determine.
Page 5 ⇓
22. Regarding alleged incompatibility between the requirement in Irish law that a company be
represented in court by a qualified legal representative and Article 6 of the European
Convention on Human Rights the judge concluded at para. 56 that there was no such
incompatibility: -
“Insofar as there might be exceptional circumstances such as might warrant a
relaxation of the rule in Irish law so as to allow a fair hearing as envisaged by the
rules of natural justice or constitutional justice or Article 6 of the Convention, there
is no evidence put before this court of any such circumstances arising in the
present case.”
Fitzgerald had placed reliance on, was distinguishable: -
“… Mr. Fitzgerald’s circumstances cannot be said to equate to what presented in
that case. Unlike the applicant in Arma… Mr. Fitzgerald has not come before the
Court in the context of a liquidation case or a petition to wind up Munster Wireless
Limited.”
Regarding a request for a preliminary reference to the ECJ she concluded that no question
which required such a referral arose.
AIB v. Aqua Fresh Fish
23. The High Court order of Faherty J. was perfected on the 14th August, 2018. On the 18th
October, 2018 the judgment in the appeal of AIB Plc v. Aqua Fresh Fish [2018] I.E.S.C.
49 against the decision of Keane J. – on which Faherty J. had placed reliance in her
judgment delivered on the 28th June, 2018 – was delivered in the Supreme Court. It
concluded that: -
“The so-called rule in Battle v. Irish Art Promotion…when complemented by the
inherent jurisdiction and discretion of the Court to permit, in exceptional
circumstances, representation of a company by a person who is not a lawyer with a
right of audience, continues to be the law in this jurisdiction and is consistent with
the Constitution.” (per Finlay Geoghegan J.)
The Supreme Court further found that exceptional circumstances had not been
established which would warrant the Court permitting the company to be represented by
its director. The Supreme Court upheld the decision of Keane J.
24. In Klohn v An Bord Pleanála [2019] IESC 66 Clarke C.J. observed at para. 7.5:
“Attention was also drawn to the fact that this Court has recently confirmed, in
Allied Irish Bank plc v. Aqua Fresh Fish Ltd [2018] IESC 49, the proposition which
had appeared to be the law since Battle v. Irish Art Promotion Centre Limited
[1968] I.R. 252, which is to the effect that a corporation cannot self-represent save
in exceptional circumstances, thus creating a category of party (but not of
proceedings) where, it might appear, representation by a visiting lawyer other than
Page 6 ⇓
in conjunction with an Irish-qualified lawyer would not be permissible on the basis
of the argument put forward by Ms. Ohlig. Whether that consideration of national
law could have any bearing on the ultimate determination of the legal issue of
Union law which arises in this matter is ultimately a question for the CJEU.”
Exceptional circumstances
25. Sir Thomas Bingham M.R. in Radford v. Freeway Classics Limited [1994] 1 B.C.L.C. 445
explained the reason why a company director or office holder was not entitled to
represent a company as follows: -
“A limited liability company, by virtue of the limitation of the liabilities of those who
own it, is in a very privileged position because those who are owed money by it, or
obtain orders against it, must go empty away if the corporate cupboard is bare.
The assets of the directors and shareholders are not at risk. That is an enormous
benefit to a limited company but it is a benefit bought at a price. Part of the price
is that in certain circumstances security for costs can be obtained against a limited
company in cases where it could not be obtained against an individual, and another
part of the price is the rule that I have already referred to that a corporation cannot
act without legal advisors. The sense of these rules plainly is that limited
companies, which may not be able to compensate parties who litigate with them,
should be subject to certain constraints in the interests of their potential creditors.”
Determination of the Supreme Court
26. On the 16th May, 2019 the Supreme Court refused to grant leave to the applicant to
appeal directly from the High Court by way of a leapfrog appeal. The Supreme Court in
refusing to grant leave to appeal pursuant to Article 34.5.4 of the Constitution observed
that Battle had established that, save for the most exceptional circumstances, a company
could only be represented by a duly qualified lawyer, this being different from the case of
individuals who could self-represent. The Court emphasised that this distinction is
entirely justified by the fact that a company is a separate legal entity, with a personality
distinct from that of its members under the Companies Act, 2014.
27. The Supreme Court noted at paras. 25-27 that Faherty J. had correctly understood and
applied the decision of Keane J. in AIB v. Aqua Fresh: -
“…none of the facts as outlined in the application for leave or in the other
documentation… give rise to any concern that what may be described as
exceptional circumstances, coming within the definition of Aqua Fresh Fish, are at
play…
The applicant submits that s.41 of the Companies Act, 2014 acts as a statutory
exception to the principle established in Battle however such is not the case…
The decision in Arma which is put forth by the applicant to support his invocation of
Article 6.1 of the ECHR is a case which concerns locus standi: the applicant had set
up a company of which she was the manager and sole shareholder…”
Page 7 ⇓
The Supreme Court considered that the reasoning in Arma was based “more on the locus
standi of a director who has a vested and particular interest in the company which was
clearly in a state of extremes.”
The Supreme Court concluded its determination to refuse leave noting: “Faherty J. was
correct in finding that the factual situation of the within case could not be equated with
Arma, and thus there exists no incompatibility of Article 6.1 of the ECHR.”
Proposed appeal
28. The proposed notice of appeal exhibited identifies five separate grounds of appeal:
(1) Precedent –
“Throughout these proceedings the courts have acquiesced to [Mr.
Fitzgerald’s] right to represent the company.” There is no statutory
prohibition on a company being represented by a non-legal professional.
(2) That section 41 of the Companies Act, 2014 does entitle a duly authorised attorney
for the company to represent the company in court and that this is the statutory
exception referred to by Ó Dálaigh C.J. in the Battle judgment which did not exist
until the commencement of the Companies Act, 2014. It allows the company to
attend and argue personally addressing the judgment of Viscount Simon L.C. in the
Tritonia case.
(3) It is contended that the High Court exceeded its jurisdiction by interpreting EU law
with regard to Article 54 TFEU: “The Court claims that there are restrictions on
companies being treated as natural persons but does not and cannot specify what
these restrictions are.”
(4) The fourth ground is directed to Article 54 of the TFEU and also Articles 20, 47 and
52 of the Charter.
(5) The fifth proposed ground of defence arises pursuant to the European Convention
on Human Rights and the decision of Arma v. France.
Decision
Acquiescence
29. The suggestion that some form of acquiescence equivalent to estoppel has arisen is not
maintainable. Almost three years ago on the 28th November, 2016 Mr. Justice
Humphreys directed a preliminary issue be heard, namely: “Whether it is appropriate that
the applicant company be represented by one of its directors and not a professional legal
representative…” At its highest, the evidence before this Court demonstrates that Mr.
Fitzgerald attempted to represent the company in the teeth of sustained opposition from
the respondent and the reason why the judicial review proceedings have not progressed
is because his attempts to do so have been contested and resisted by the respondent
throughout. This ground of appeal conflates his claimed right to represent the company
in litigation with his right to argue that he is entitled to represent the company in that
Page 8 ⇓
litigation. The fact that the courts afford him a right of audience to advance this
argument cannot amount to an acceptance of the argument.
30. It is noteworthy that counsel for the State contended that Mr. Fitzgerald was not entitled
to advance this argument at all in the first place. This approach contrasts with the stance
adopted by the respondents in Aqua Fresh Fish, Klohn and indeed Battle itself where the
party claiming locus standi to represent was allowed to appear in court and advance
arguments in support of their contentions. The stance sought to be adopted by the State
in this regard was unduly narrow, inconsistent with precedent and not an argument
advanced before the High Court at the original hearing. For the latter reason, if no other,
I do not consider the argument to be soundly based. Mr. Fitzgerald is entitled to advance
his arguments. The constitutional right of access to the courts necessarily encompasses
an entitlement to establish a claim and substantiate it.
31. The decision of the Supreme Court in AIB v. Aqua Fresh Fish Limited is fatal to the Mr.
Fitzgerald’s contention that merely because there is no expressed statutory prohibition on
a company being represented by a non-legal professional that same entitles him to
represent the company in proposed judicial review proceedings.
Power of Attorney
32. The contention advanced is that s.41 of the Companies Act, 2014 gives rise to a statutory
exception and in effect legislates to circumvent the Battle rule. This matter has already
been specifically dealt with by the Supreme Court in its decision to refuse a leapfrog
appeal where at para. 26 it states: -
“The applicant submits that s. 41 of the Companies Act, 2014 acts as a statutory
exception to the principle established in Battle; however such is not the case. As
stated by Faherty J., this section merely permits a person to stand in the shoes of
the company and to act as the company: it does not divest the company of its
incorporated status. The power of attorney permitted in this section does not
analogise or transform the power of a director vested with same, into one which
would allow him/her to represent the company in court.”
I accept that this is a correct statement of the law. Accordingly, that proposed ground of
appeal is doomed to failure. It is simply unstateable.
33. Further, the claim of Mr. Fitzgerald insofar as it is based on section 41 assumes that the
Oireachtas in altering the manner in which the power to appoint an attorney was
expressed from that previously iterated in in section 40 of the Companies Act 1963,
intended to abrogate the significant rule of law clearly articulated in Battle, a rule which
(as that decision makes clear) was by the time of that case in 1967, long established.
Were this the intention, one would expect it to be clearly stated which it is not. That this
is not the legislative intention is put beyond doubt by the express facility for appointment
of company representatives in connection with particular functions in certain criminal
proceedings provided for in section 868 of the Companies Act, 2014, and the stipulation in
Page 9 ⇓
that provision that such a representative may not act on behalf of the company before
any court for any other purpose. Section 868(6) provides: -
“(1) The following provisions of this section apply where a company is charged, either
alone or with some other person, with an indictable offence.
(2) The company may appear, at all stages of the proceedings, by a representative and
the answer to any question put to a person charged with an indictable offence may
be made on behalf of the company by that representative but if the company does
not so appear it shall not be necessary to put the questions and the District Court
may, notwithstanding its absence, send forward the company for trial and exercise
any of its other powers under Part 1A of the Criminal Procedure Act 1967, including
the power to take depositions.
(3) Any right of objection or election conferred upon the accused person by any
enactment may be exercised on behalf of the company by its representative.
(4) Any plea that may be entered or signed by an accused person, whether before the
District Court or before the trial judge, may be entered in writing on behalf of the
company by its representative, and if the company does not appear by its
representative or does appear but fails to enter any such plea, the trial shall
proceed as though the company had duly entered a plea of not guilty.
(5) In this section, ‘representative’ in relation to a company means a person duly
appointed by the company to represent it for the purpose of doing any act or thing
which the representative of a company is authorised by this section to do.
(6) A representative of a company shall not, by virtue only of being appointed for the
purpose referred to in subsection (5), be qualified to act on behalf of the company
before any court for any other purpose.
(7) A representative for the purpose of this section need not be appointed under the
seal of the company.
(8) A statement in writing purporting to be signed by a managing director of the
company or some other person (by whatever name called) who manages, or is one
of the persons who manage, the affairs of the company, to the effect that the
person named in the statement has been appointed as the representative of the
company for the purposes of this section shall be admissible without further proof
as evidence that that person has been so appointed.”
Noteworthy are the conclusions of McKechnie J. in this regard in his judgment in this Court in
AIB Plc v. Aqua Fresh Fish [2017] IECA 77 at 39-41 where he observed: -
“The modification based on exceptional circumstances, as above discussed, has of
course been created judicially; the Oireachtas has also taken an interest, however,
but only in a restricted sense, confining its intervention to situations where a
Page 10 ⇓
company is prosecuted on indictment. Even then, as s. 868 of the Companies Act
2014 shows, the relaxation is modest, as the duly appointed person has a limited
representative function. Such person may answer any question required to be put
to the company (s. 868(2)), exercise any right of objection or election on the
company’s behalf (s.868(3)) or enter a plea in writing to the offence as charged (s.
868(4)). However, the representative cannot go further. Similar exceptions were
contained in the corresponding subsections of s. 382 of the Companies Act 1963,
which provision was first enacted to deal with the problems identified in The State
(Batchelor & Co (Ireland) Ltd.) v. Ó Leannáin [1957] I.R. 1.
The real relevance of these provisions, however, is not in the limited exception they
have created in respect of criminal offences, or even in the severe restrictions
imposed within that exception, but rather in what they do not permit a
representative to do on behalf of a company. Section 868(6) of the 2014 Act
provides that the appointment of such a person under the section does not qualify
that person to ‘act on behalf of the company before any court for any other
purpose’. Strikingly, s. 382(5) of the 1963 Act likewise provided. As is clear, this
exception in its original setting pre-dates even Battle and evidently it was open to
the legislature in drafting the 2014 Act, or at any time in the preceding fifty years,
to broaden its scope so as to permit company representation by non-lawyers in
other circumstances. This it has not done, instead retaining the narrow exception
for indictable matters and continuing the express prohibition that a person so
appointed shall not be qualified to act other than for the purposes of the section.
In coming to this conclusion I acknowledge an alternative approach to a provision
such as that created by s. 868 of the 2014 Act. It is that such a measure could be
regarded as being in the nature of a lex specialis designed to deal with a specific
issue in a specific context, and that no wider implication should be drawn from it.
The reason why I believe that the former view is more correct is the legislative
context in which the section was enacted. Such involved the most major
reassessment, review and consolidation of company law, in all its aspects, in more
than 50 years. If the situation had been more specific, and in particular if the
provision had been adopted in a criminal statute, then perhaps the latter view
might be more appropriate. This is not what occurred, however. Accordingly, the
broader interpretation is thus justified in this case.”
34. Nothing in the Supreme Court decision trenches upon or is inconsistent with the said
reasoning which I respectfully adopt.
Article 54
35. The third ground of appeal contends that Faherty J. exceeded her jurisdiction by
interpreting EU law with regard to Article 54 TFEU. Mr. Fitzgerald’s contention is that the
rule in Battle contravenes Article 54 of the TFEU. However, it is clear from the terms of
Article 54 that the article applies for the purposes of Chapter Two of the TFEU and that it
is not an article of general application, but rather identifies an element of the framework
for the rights of nationals of one Member State who seek to establish themselves in
Page 11 ⇓
another Member State. It is noteworthy but not determinative in any of this application
that in its determination of the leapfrog appeal application the Supreme Court found no
fault with the conclusion of Faherty J. that Article 54 TFEU is not an authority for the
proposition that companies are to be treated the same as natural persons for all purposes
and that it had no bearing on the law in this jurisdiction which requires a company to be
represented by a lawyer.
36. Indeed, given that the consequence of the decision in Battle is that a company and a
natural person are treated by the law in exactly the same way – insofar as neither may
instruct a third party who is not a qualified representative to represent them in Court – it
is impossible to see what differential treatment is complained of.
ECHR
37. The decision in Arma does not avail Mr. Fitzgerald and is distinguishable. On an analysis
of a French language version of the judgment I find myself in agreement with the views
expressed by the Supreme Court in its determination which noted at para. 27: -
“The reasoning was based more on the locus standi of a director who has a vested
and particular interest in the company which was clearly in a state of extremes. As
such, Faherty J. was correct in finding that the factual situation of the within case
could not be equated with Arma, and thus there exists no incompatibility with
Article 6.1 of the ECHR.”
38. Specifically, in this case the issue is who can represent the interests of the company in
litigation in order to protect and advance the interests of the company itself. In Arma the
question was whether a director or shareholder could intervene in a court process so as to
protect her own particular interest in seeing the company continue and thereby protect
the funds the manager had invested – an interest which the Court felt was convergent
with the interests of the company (see para. 32 of the judgment of the Court). The case
was thus concerned with the question of who had the right to properly become a party to
proceedings, not the question of who had the right to represent those who were already
parties to those proceedings.
39. Insofar as no incompatibility with the European Convention on Human Rights has been
established, the Court has been furnished with no basis on which it could conclude that
the application of the EU Charter of Rights and Fundamental Freedoms would result in any
different conclusion.
Conclusion
40. Delany and McGrath “Civil Procedure in the Superior Courts” (4th ed., Round Hall, 2018)
at para. 23-116 states: -
“The principles in Éire Continental have been consistently referred to in subsequent
cases and while the decisions have tended to focus on whether there was
compliance with the three conditions referred to therein, the breadth of the
discretion that the Supreme Court enjoys in deciding whether to enlarge time has
also been emphasised. It has been suggested that while the three conditions set
Page 12 ⇓
out in Éire Continental are a useful guide to the manner in which the jurisdiction of
the Court will be exercised, the overriding consideration is that the Court has a
discretion which must be properly exercised in all the circumstances of the case.
So, in Brewer v. The Commissioners of Public Works in Ireland Geoghegan J. stated
that he would interpret the words of Lavery J. in Éire Continental as indicating that
while the three conditions laid down were proper matters to be considered, it did
not necessarily follow that a court would either grant an extension if all these
conditions were fulfilled or refused the extension if they were not.”
41. I am satisfied that no arguable ground of appeal has been identified such as would satisfy
the third limb of the Éire Continental test and warrant making an order extending time to
appeal.
42. I would refuse the application.
Result: Application for an extension of time not granted.
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