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Extending appeal deadlines
PRACTICE AREA GROUP: Commercial Litigation and Dispute Resolution
An appeal to the Supreme Court from a High Court decision must be lodged within 21 days of perfection of the order. A recent case considered the basis on which the period may be extended to facilitate an appeal and offered additional guidance in the area. Goode Concrete v CRH plc(1) arose out of protracted contentious and difficult litigation involving the concrete industry in Ireland, in which the defendants and respondents were alleged to have engaged in anti-competitive behaviour to the detriment of the plaintiff and appellant.
The Supreme Court considered three separate but closely connected applications on behalf of Goode, seeking a time extension within which to appeal three separate orders made by the High Court, each order being the subject of a written judgment. The first was delivered on January 20 2011 and related to the refusal of an interlocutory injunction sought by Goode. The second was delivered on March 21 2012 and involved a decision to direct security for costs against Goode. The third, delivered on May 15 2012, related to fixing the terms of the security to be provided, both its amount and phasing. The formal orders arising out of each judgment were perfected on February 2 2011, May 8 2012 and May 17 2012. However, no attempt to bring an appeal to the Supreme Court was made in respect of any order until December 11 2012, being many months after the perfection of the various orders. Regarding the 21-day period under the rules, the appeals were out of time by a significant margin. Having heard argument, the Supreme Court gave an ex tempore immediate ruling extending the period to file the appeals on limited bases and gave directions to ensure an early hearing of the appeal, with reasons to follow. In October 2013, the reasons underlying the ruling were set out in a written judgment.
In each of the appeals there was one common ground which centred on an allegation of a reasonable apprehension of objective bias on the part of the trial judge arising out of a shareholding that the trial judge held in CRH. Before embarking on any contentious aspect of the proceedings, the trial judge had indicated to the parties that he had a shareholding in CRH and no party objected to him continuing to hear the matter. Each of the appeals also sought to raise other issues arising out of the respective judgments.
The Supreme Court identified that the leading authority regarding the extension of time for an appeal was Éire Continental Trading Company Limited v Clonmel Foods Limited.(2) The court confirmed that the applicant must establish that:
- it had a bona fide intention to appeal within the permitted time;
- the existence of something like a mistake and a mistake as to procedure, in particular the mistake of counsel or solicitor as to the meaning of the relevant rule, was insufficient; and
- an arguable ground of appeal exists.
The court also observed that these must be considered in relation to "all the circumstances of the particular case".
This was followed in Brewer v Commissioners of Public Works(3) where it the court noted that although the:
"three conditions were proper matters to be considered, it did not necessarily follow in all circumstances that a court would either grant the extension if all these conditions were fulfilled or refuse the extension if they were not. The court still had to consider all the surrounding circumstances in deciding how to exercise its discretion."
On September 26 2012 it was averred that Goode Concrete first appreciated that the trial judge's financial interest or shareholding in CRH was larger than first thought. There then followed an exchange of correspondence between the solicitors for Goode Concrete and the trial judge, as a result of which the latter directed that the appropriate forum for the issue was in open court and on notice to the other parties. The trial judge was asked to recuse himself from the case by Goode Concrete on the grounds of a reasonable apprehension of objective bias and a motion issued. At the hearing on November 13 2012 the judge acknowledged his investment, but said that he did not follow it on a day-to-day basis and was unaware of an additional purchase of shares said to have occurred in December 2010. Indeed, the judge said that had an objection been raised when he first disclosed his shareholding to the litigants, he would have conducted further enquiries. Ultimately, provision was made for the proceedings to be transferred to another judge. After that, Goode Concrete requested consent from the other parties for the late filing of the appeals. The final response, all of which refused to consent, was delivered on December 10 2012 and motions to extend time were issued on the following day.
The court accepted that Goode Concrete did not know of the facts on which it wished to rely in its appeal until September 26 2012. Thereafter, it was entirely appropriate for Goode Concrete to seek to clarify the issues concerning the trial judge's shareholding in CRH to the greatest extent possible before bringing an application to court seeking a time extension. Although the court accepted that more than 21 days had elapsed between the November 13 2012 court hearing and the lodging of the appeals, it said that the letters seeking a time extension in which to appeal clearly demonstrated an intention to seek to appeal at that stage. The court was therefore dissatisfied that there was any delay that would disqualify Goode Concrete from being entitled to a time extension to appeal, which would be otherwise justified. On that final question, the court decided that there were arguable grounds for appeal on the basis of an allegation of a reasonable apprehension of objective bias.
In considering the case, the court noted that the Éire Continental test applies in the vast majority of cases to balance justice on all sides. It also felt that it was not in the interests of justice to allow wholly unmeritorious appeals to progress and it was therefore difficult to envisage circumstances where it could be in the interests of justice to allow an appeal to be brought outside time unless the court was satisfied that there were arguable grounds of appeal. Equally, it felt that a party should not be allowed a time extension unless a decision to appeal was made in time and there was a good reason for the appeal not having been filed within the time limit. Usually, a participant in proceedings will have all of the information necessary available to decide whether it wishes to appeal. That being so, a party is therefore not unreasonably expected to bring their appeal within the specified time, unless there is an excuse for not doing so.
Although cases where facts, relevant to an appeal, which did not form part of the materials before the High Court are rare, different considerations may apply where the basis of the appeal stems from factual circumstances outside of the materials considered by the High Court. The court felt that allegation of a reasonable apprehension of objective bias is one such scenario where different considerations could apply. On that basis, the criteria regarding the time within which the appeal should have been brought should be modified in cases where the whole basis of the appeal is dependent on facts not before the trial court. Accordingly, as an appropriate adaption of the specific Éire Continental criteria, the court should also consider:
- the time when the party seeking a time extension first became aware of the facts on which it wishes to rely;
- the extent to which it was reasonable for that party to engage in further inquiry before bringing an application to the court for a time extension;
- the time which elapsed between information coming to the attention of the relevant party and the application for a time extension measured by reference to the tight 21-day limit within which a party is expected, in an ordinary case, to appeal to the Supreme Court; and
- any other factors arising in the special circumstances of the case but in particular any prejudice which might be said to have been caused to the successful party in the High Court by reason of the overall lapse of time between the order sought to be appealed against and the application for a time extension.
Based on the facts, the court felt that it was appropriate to extend the time in respect of the appeal ground premised on the reasonable apprehension of bias allegation, but not in respect of any other grounds. It outlined that whole rationale behind allowing Goode Concrete to raise the reasonable apprehension of bias point was precisely because it derived from facts and materials which were not before the High Court and which only came to the attention of Goode Concrete at a relatively late stage in the process. This rationale has no application to any other points arising entirely out of the facts and materials before the High Court and in respect of which no new information or materials have become available.
The case represents a useful restatement of the test applicable to the extension of time within which to bring an appeal. However, it specifically requires additional considerations to be addressed where the bases of an appeal stem from factual circumstances outside of the materials considered in the High Court. Although this is unusual, the fact that a more forgiving and realistic test applies to parties which may need to explore new factual issues further before deciding on an appeal is welcome.
(1)  IESC 39.
(2)  1 IR 170.
(3)  3 IR 539.
This article was first published by International Law Office on 3 December 2013.