THE COURT OF APPEAL
Neutral Citation Number:  IECA 332
Record Number: 2017/390
IN THE ESTATE OF CELINE MURPHY (DECEASED, LATE OF GENAZZANO, KINGSWOOD, CLONDALKIN, DUBLIN 22)
- AND -
IN THE MATTER OF THE SUCCESSION ACT 1965
- AND -
IN THE MATTER OF S. 27(7) OF THE SUCCESSION ACT 1965
- AND -
IN THE MATTER OF AN APPLICATION BY MICHAEL COX
MAJELLA RIPPINGTON, SHAUN RIPPINGTON AND EDEL BANAHAN
- AND -
MICHAEL COX AND MARY BUTLER
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 19TH DAY OF DECEMBER 2017
1. By their notice of motion issued on the 31st July 2017 the first and second named applicants (“the applicants”) seek an extension of time within which to appeal against an order of the High Court (O’Neill J.) on the 23rd July 2012 whereby Ms. Anne Stephenson, solicitor was given liberty pursuant to s. 27(7) of the Succession Act, 1965 to apply for a grant of administration without will annexed, pendente lite for the purpose of gathering in and preserving the assets of the deceased, paying the debts of the deceased including the funeral expenses, and discharging the mortgage on a property owned by the deceased.
2. Following the making of that order, Ms. Stephenson duly extracted the grant of administration, and discharged her functions as directed by the said order and, having done so, applied for an order revoking the said grant on the basis that she had done what was required of her pursuant to her appointment as administrator pendente lite. The order revoking that grant was made by the High Court (Baker J.) on the 21st July 2014.
3. The applicants lodged an appeal to the Supreme Court against the order made by Baker J. but that appeal was dismissed.
4. It is surprising, to put it at its mildest, now to discover, some five years after the order was made by the High Court permitting Ms. Stephenson to apply for a grant of administration pendente lite, and some three years after she has completed her work as administrator, that the applicants now seek to appeal against the order permitting her to extract the grant of administration.
5. It is the more surprising when one considers the fact that the applicants were represented by solicitor and counsel at the hearing of the motion before O’Neill J. on the 23rd July 2012 seeking the appointment of Ms. Stephenson as administrator pursuant to s. 27(7) of the Succession Act, 1965, and furthermore that through their counsel the Court was informed that they were agreeable to that order being made by the Court.
6. These facts alone are sufficient to indicate the difficulty facing the applicants in trying to persuade this Court to grant an extension of time for the filing of an appeal against the order dated the 23rd July 2012. However, the difficulty is compounded when one has regard to the contents of a letter written by their counsel to his instructing solicitor when he reported on what occurred on the 23rd July 2012, since he had been attended in court by a legal executive from the solicitor’s firm.
7. In this letter counsel stated that he had explained the motion to the applicants herein (respondents to that motion), and that he had recommended that an independent person be appointed administrator with limited powers pending the conclusion of the main proceedings, such as a solicitor who would have professional indemnity insurance, and he explained to them also that the Court in all probability would make such appointment. This letter went on to state:
8. Counsel in this letter then explained that he had then approached counsel for the moving party who agreed with that proposal, and suggested that Ms. Stephenson be appointed as administrator. Counsel then went on to state that he informed the plaintiffs of his conversation with counsel for the moving party, and that “they all agreed and requested that I ask the court to include in the order a provision that the administrator appointed would also pay the funeral costs of the late Celine Murphy”.
“While the other plaintiffs were immediately happy with this course, Majella Rippington did not agree at first, but when the matter was fully explained to her and after some remonstrations with her by the other plaintiffs, she agreed that the course being recommended was the appropriate approach in the circumstances.”
9. Counsel then went on to inform his instructing solicitor that when the motion was called he informed the Court that his clients (the respondents to the motion) were agreeable to the making of an order for the appointment of Ms. Stephenson, and requested that the order to be made should include a provision for the payment of the funeral expenses of the deceased. A transcript of the hearing before O’Neill J. confirms that counsel’s account of what happened in court was correctly described, and indicated that the order was made on a consensual basis.
10. It would appear that counsel wrote that letter to his instructing solicitor following the receipt of an email from Majella Rippington dated the 25th July 2012, just two days after the said order was made in the High Court. That email evinced some dissatisfaction by her with the manner in which the motion had been dealt with in Court on the 23rd July 2012, and stated that she and her family were intent on appealing against the order made. Counsel’s replying email to Mrs. Rippington informed her that he had written to his instructing solicitor to outline the events of the 23rd July 2012, and stating also that he understood that the solicitor in question was no longer acting for the family, and that in these circumstances his own instructions had been withdrawn.
11. To obtain an order extending the time to appeal against the order of the 23rd July 2012 the applicants must satisfy the well-established test in Eire Continental Trading Co Ltd v. Clonmel Foods Ltd  IR 170. That test requires that an applicant must establish that a bona fide intention to appeal was formed within the time prescribed for appeal, some element of mistake, as well as an arguable ground of appeal. In this regard, Delany & McGrath in Civil Procedure in the Superior Courts (3rd ed.) Round Hall at para. 22-35 state the following:
12. The application for extension of time to appeal to this Court is grounded on an affidavit sworn by Mrs. Rippington on the 31st July 2017. She is not professionally represented. She makes a number of averments which it is unnecessary to recite or to comment upon, as they do not speak to the matters that must be satisfied under Eire Continental. She does however state at para. 11 that the appointment of Ms. Stephenson was “forced upon us through deception”. This is stated to be the case because on a previous date when the motion was before the Court (presumably the first return date contained in the notice of motion, the 16th July 2012, though she refers to the 10th July 2012) the judge then sitting stated that three names of independent solicitors should be put forward and that the Court would choose one of them. She goes on to state that “the … order was obtained by an invalid consent” in an entirely separate jurisdiction to that of the High Court Chancery”. In para. 15 she states that “the plaintiffs/appellants were refused the right of reply and the right to make objection, refused the right to be heard as no replying affidavit was permitted by their legal representatives”, and further that they were “seriously deceived and were at serious disadvantage through ignorance of probate law, lack of advice and subject to serious deception by both law firms acting for the two disputing parties”. She goes further and states that they were exploited “in a morally culpable manner”, and that they “did not give their consent, authority or agreement to this appointment as stated to the judge” and also that “the judge was completely misled as to the appointment and false agreement”. She goes on to refer to matters that are not germane to the application for an extension of time. But she has helpfully exhibited a transcript of the hearing before O’Neill J.
“The principles in Eire Continental have been consistently referred to in subsequent cases and while the decisions have tended to focus on whether there has compliance with the three conditions referred to therein, the judges have also emphasised the breadth of the discretion that the Supreme Court enjoys in deciding whether to enlarge time. In the view of McCarthy J in Bank of Ireland v. Breen [Supreme Court, 17 June 1987 per McCarthy J. at 5] while the three conditions set out in Eire 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. Similarly, in Brewer v. Commissioners of Public Works in Ireland Geoghegan J. stated that he would interpret the words of Lavery J. in Eire 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 refuse the extension if they were not.”
13. In a replying affidavit, the respondents’ solicitor has referred to the making of the order by O’Neill J. on the 23rd July 2912. She refers to the fact that it was not appealed, and to an unsuccessful application by Mrs. Rippington to Hedigan J. on the 8th August 2012 for a stay on the order of the 23rd July 2012, as well as to the filing of an appeal against that refusal of a stay to the Supreme Court, and to a motion to the Supreme Court for a stay on the order of Hedigan J. pending the hearing of the appeal against that order. She refers to the fact that the appeal itself against the order of Hedigan J. was not progressed, though she notes that it is listed for mention in the Supreme Court on the 14th December 2017.
14. Other matters are referred to which it is unnecessary to recount. However, the respondents’ solicitor states that the appellants have not shown any good grounds as to why they did not appeal against the order made by O’Neill J. on the 23rd July 2012 within the prescribed time for doing so, and are only now seeking to do so. She makes the point that any such appeal would in any event be moot given that the administrator appointed has completed her task, and the grant of administration under which she acted has been revoked at her request following the completion of her work. She states that the grounding affidavit does not disclose how it is contended that the order made is bad either in law or on the facts, and submits that the affidavit simply discloses a desire to re-open and re-argue matters that have been determined in the substantive hearing of the issues in the plenary proceedings that were determined by Noonan J. in July 2015, that decision being the subject of a separate appeal to this Court.
15. A further affidavit was sworn by Mrs. Rippington on the 21st September 2017 but it is unnecessary to set out the details from this affidavit as the averments repeat much of what was said in her earlier affidavit (perhaps at more length), and do not add anything of materiality in relation to the issues that this Court must address its mind on an application for an extension of time to appeal an order of the High Court.
16. I am satisfied from the evidence adduced that in the immediate aftermath of the making of the order of the 23rd July 2012 a bona fide intention to appeal was formed. That much is clear from Mrs Rippington’s email to counsel on the 25th July 2012, and is consistent with her making an application, albeit unsuccessfully, to Mr Justice Hedigan on the 8th August 2012 for a stay on the order. To that extent the first requirement of Eire Continental is in my view met.
17. However, there is no explanation by her as to why she did not lodge an appeal against the order of O’Neill J. at that time, or indeed seek to do so earlier than the 31st July 2017. Quite apart from the problem she faces due to the fact the order in question was made by consent (I appreciate that she disputes that) a five year unexplained delay in seeking to appeal an order is an insuperable obstacle to this Court exercising its discretion to extend time to appeal.
18. Even if there was some good explanation advanced for that extraordinarily long delay, another obstacle in the way of the Court exercising its discretion by extending time is the fact that it would be utterly futile to do so as the administrator appointed under the order sought to be appealed has completed her work under the grant of administration that she extracted pursuant to the order. The appeal is in that sense entirely moot and no worthwhile purpose can be achieved.
19. Quite apart from all of that, there is in my view no arguable ground of appeal advanced. The order was made on consent. The respondents to the motion were represented by solicitor and counsel. It is clear from counsel’s report to his instructing solicitor that instructions were taken and agreement eventually obtained from them, including from Mrs. Rippington, to the proposed appointment of Ms. Stephenson.
20. The fact that Mrs Rippington now disputes that she gave a valid consent does not alter the fact that the Court was informed that agreement had been reached in relation to the appointment of Ms. Stephenson, and that the order could be made on that basis.
21. I would refuse the application for an extension of time as the second and third requirements of Eire Continental have not been met and there is no basis for the exercise of the Court’s discretion in favour of the applicants.