Court of Appeal dismisses appeal where appellant failed to attend court and provided insufficient medical evidence for adjournment.

THE COURT OF APPEAL

CIVIL

APPROVED

NO REDACTION NEEDED

Court of Appeal Record Number: 2024/231

Whelan J. Neutral Citation Number [2025] IECA 139

Faherty J. Pilkington J.

BETWEEN/

ALLIED IRISH MORTGAGE BANK UC AND ALLIED IRISH BANK PLC

PLAINTIFFS/RESPONDENTS

- AND –

JUSTIN BURKE

DEFENDANT/

APPELLANT

JUDGMENT of Ms. Justice Máire Whelan delivered on the 9th day of July 2025

Introduction

1. This is an appeal by Mr. Justin Burke (the appellant) against orders made by Mulcahy

J. in the High Court on 29th June 2024 where, the appellant having failed to attend the hearing, the judge granted judgment in favour of AIB Mortgage Bank and Allied Irish Banks Plc (the respondents). The appellant contends that an adjournment ought to have been granted.

Background

The 2014 proceedings

2. In High Court proceedings (Record Number 2014/2737S) brought by the respondents by way of summary summons, against, inter alia, the appellant on 3rd July 2015, the appellant consented to an order that the first named respondent was entitled to recover against him the sum of €1,616,934.11 (with no order as to costs) and that the second named respondent was entitled recover against him the sum of €4,233,606.66 (with no order as to costs).

The 2023 Plenary proceedings

3. Subsequently, a third party, the appellant’s sister-in-law, brought High Court proceedings (Record Number 2023/822P) against the respondents and inter alia the appellant, contending that she held a beneficial interest in Doughiska Ardaun Developments Ltd., a company otherwise understood to be beneficially owned by Mr. Burke, and over which the respondents sought to appoint a Receiver. It is noteworthy in the context of the appellant’s non-attendance in the High Court on 29th July 2024, which is the subject of this appeal, that a year previously on Wednesday 28th June 2023, in the said plenary proceedings, at the hearing of the respondents’ motion seeking discovery against him of specified categories of documents, the appellant had also failed to attend court instead seeking an adjournment on the basis of a Doctor’s Certificate. In the course of his ruling, and explicitly embodied in the order of the High Court, which was perfected on that occasion on 28th June 2023, Dignam J. directed that Mr. Burke, the appellant:- “…do have until the close of business on Monday the 3rd day of July 2023 to provide adequate medical evidence on Affidavit preferably to be in the form of an Affidavit by a General Practitioner or a Report of a General Practitioner appended as an Exhibit to an Affidavit And the Court suggesting that such evidence should provide more detail than what has been provided thus far same to include a prognosis and timeline for when the condition of the Second Named Defendant will abate sufficiently so as to proceed with the within action.”

The order went on to expressly provide that the respondents “do notify [Justin Burke] of the within Order being made on this day at Old Doughiska Road Galway same being the address of … [Justin Burke] by ordinary pre-paid post and by email to …[specified email address] and by leaving a true copy of the said pleadings at the entrance gate to … [Justin Burke’s] address at Old Doughiska Road Galway.”

4. When that application again came before the High Court on 7th July 2023 there was still no attendance in court by Mr. Burke. Dignam J. proceeded to hear the motion and grant the order for discovery. Amongst the evidence considered by Dignam J., as recited on the face of the said discovery order (perfected on 14th July 2023), was an affidavit of the appellant’s G.P. Dr. Adrian Carney, filed on 5th July 2023.

5. Within the original debt proceedings (2014/2737S) the respondents on foot of a motion dated 14th July 2023 sought and the High Court granted an order pursuant to Order 46, rule 1 of the Rules of the Superior Courts and/or section 23 of the Debtors (Ireland) Act 1840 (as amended) and/or section 132 of the Common Law Procedure Amendment Act (Ireland) 1853 that the sum due and owing by the appellant to the first named respondent on 28th June 2021 of €1,103,526.60 and as of the same date the sum of €5, 333,026.38 due and owing by the appellant to the second named respondent consequent upon the order of the High Court made on 3rd July 2015 to which Mr. Burke had consented stood well charged on shares held in the name of a third party in the company. Same were declared to be held in trust for the appellant as “being the beneficial owner of the said shares until payment and unless [Justin Burke] … shall show cause to the contrary”. It was further recited on the face of the court order that the sums as of the said date of the order, namely 7th March 2024, due and owing by the appellant to the first named respondent on 29th February 2024 was €1,141, 174.24 and in respect of the second named respondent €5,071,046.92. It was further ordered that the conditional order previously made on 13th July 2021 against, inter alia, the appellant herein be made absolute and the sums standing charged upon the shareholding of the appellant in the company Doughiska Ardaun Developments Ltd.

Application for Orders for Possession and Sale 2024

6. The proximate reason for the within application arises from the respondents’ seeking orders for possession and sale of identified property pursuant to proceedings Record Number 2023/338SP. Same came on for hearing in the High Court on 29th July 2024 before Mulcahy J. There was no attendance in court by or on behalf of Mr. Burke “… or any person in receipt of the profits of 22, 23, 24 or 25 Garrai Sheain Doughiska County Galway.” The order directed that the appellant forthwith upon service of the order upon him deliver up to the respondents “or to some person duly authorised by it in writing in that behalf possession of [the lands] comprised of Folio 68555F of County Galway which includes 22, 23, 24 and 25 Garrai Sheain, Roscam, County Galway.” Further consequential orders were made including authorisation to sell the aforesaid lands and premises pursuant to s.100(3) of the Land and Conveyancing Law Reform Act 2009 and a consequential account and inquiry to be taken as specified.

Hearing of 29th July 2024

7. The appellant repeatedly suggests (including at grounds 8, 9 and 10) that the respondents and their solicitors had engaged in conduct including “not making the Court aware of the full facts of previous hearings and my Doctors certificates and the Doctors Affidavit…”. This assertion, as the affidavits and transcripts demonstrate, is fundamentally inaccurate. Ms. Emily Ledford, solicitor on behalf of the respondents, put an affidavit before the High Court of 9th July 2024 outlining in detail the sequence of events (including in respect of the plenary proceedings) and the various court listings. The medical letters and the affidavit of Dr. Carney of 4th July 2024 were all exhibited. The correspondence engaged in by Mr. Burke with Whitney Moore Solicitors including the letter of 24th June 2024 enclosing the further medical letter from Dr. Carney was exhibited (exhibit EL3). The allegations of Mr. Burke are entirely refuted.

8. The transcript of proceedings in the High Court before Mulcahy J. on 29 th July 2024 clearly demonstrates that Mr. Burke’s assertions are inaccurate. Senior Counsel for the respondents comprehensively opened the background to the litigation including the history of obtaining substituted service in respect of the summons and all subsequent documentation and the necessary steps taken in regard to physical delivery of the documentation. All affidavits pertaining to substituted service were disclosed. The history of deployment of medical certificates was disclosed in great detail by counsel including the history of the appellant’s non-attendances before various courts and directions given inter alia by Dignam J. The transcript demonstrates that the High Court was furnished with extensive information concerning the various applications both in the plenary proceedings and in the within proceedings and the medical evidence being proffered in support of Mr. Burke’s efforts to secure adjournments on various dates.

9. It is clear that Mulcahy J. reviewed the various listings of litigation involving Mr. Burke before the High Court wherein he sought adjournments and did not attend in court including applications before Dignam, Quinn, O’Moore and Nolan JJ. At p. 7 lines 19-

20 of the High Court Transcript for 29th July 2024 the judge observed:

“…he knows full well at this stage from the various previous proceedings what he needs to do if he actually wants to secure an adjournment.”

Counsel emphasised that the appellant “has at all times been aware that information of the nature sent in to Dignam J. was insufficient, … having been told ‘no this isn’t enough’”.

10. Mulcahy J. scrutinised the correspondence before him and the Doctor’s letter together with the letter from Mr. Burke noting: “Even Mr. Burke’s letter doesn’t say ‘please adjourn the proceedings’. He merely says ‘bring this matter to the attention of the Judge’” (p.8 Transcript 29th July 2024 lines 31-32). The judge went on to note that although the GP had:

“repeatedly certified in respect of Mr. Burke that he is unfit to deal with legal proceedings… nothing in it suggests a basis defending the proceedings or an intention to engage or a possibility of future engagement. So, in the circumstances, I’m satisfied that he’s been notified of the proceedings, satisfied that he knows what is to be done if he considers the proceedings need to be adjourned, and the first being to apply to have the proceedings adjourned. He hasn’t done that. In those circumstances, I am happy for you to proceed …”

11. In his reasoning and ruling at page 18, the judge observes:

“As indicated at the outset, I’m satisfied that Mr. Burke has been notified of the proceedings and is aware that they are listed or was aware that they were listed for hearing today. Indeed, it’s obvious from the medical certificate which he furnished with reference to today’s date that he was aware that the matter was before the Court today. There was no application for an adjournment by Mr. Burke, and having regard to the similarity of the evidence which he put before the Court which was on previous occasions was proved to be inadequate by way of .. sorry, which he put before the Court by way of emailed letter. It didn’t seem to me that there was any basis for adjourning these proceedings further. In those circumstances, I was happy for Mr. O’Connell to proceed. He did so, and he took me through the relevant proofs. I’m satisfied that pursuant to four separate loan offers between 2004 and 2008, the defendant, Mr. Burke, borrowed money from AIB, now called the plaintiffs and charged four separate properties… Doughiska, Galway and cross-collateralised. I’m also satisfied that the plaintiffs are the owners of those charges and that the circumstances entitling it to seek possession under the mortgage being in default of payment for a period of three months has arisen, and I’m satisfied that multiple demands have been made for payment and I’m also satisfied that the necessary notices under section 100, subsection2 have been served in accordance with the provisions of the 2009 Act.”

12. The court was satisfied that the proofs required to obtain an order for possession as identified in Bank of Ireland v. Cody [2021] 2 I.R. 381 were met: “… albeit in a pre- 2009 mortgage” have been established in this case. He granted the orders for possession sought in the special endorsement of claim together with an order pursuant to s.97(2) of the 2009 Act and an order that enquiries be made as to the persons interested in the properties together with an order for sale pursuant to s.100(3) of the 2009 Act. He noted that “…in the particular circumstances of this case, where the affidavit evidence by way of valuation is that there is a benefit to sale with the benefit of vacant possession, it seems to me that those orders should be made as well.”

13. In the context of the granting of a stay, a shorter stay was sought on behalf of the respondents but the judge observed:

“Well, it is my habitual practice… to give a stay on all orders for possession and one month is – given that there’s 28 days to appeal, is I think shorter than I would normally give. So, I would give a stay in relation to all four properties for a period of two months, I’ll say.”

The appeal

14. The appellant filed the notice of appeal on 4th September 2024 asserting 13 grounds. Grounds 1- 2 appear to allege bias and prejudice on the part of the trial judge. Grounds

3 and 4, in addition to bias, denial of fair procedure, due process and natural justice, also assert that “the Defendant was certified ill by his Doctor and was unable to attend yet the trial Judge proceeded with the hearing in the absence of the Defendant”. Ground 4 overlaps substantially with ground 3 asserting that the appellant had been “certified unfit for Court”.

15. Ground 5 contends that he had not been duly served in the proper fashion with the application. Grounds 6 and 7 assert that the appellant was unfit to deal with legal papers or legal proceedings “which was certified by the Doctor and the Courts service made aware of same…” and that the plaintiff’s solicitors were “fully aware of the Defendant’s health circumstances certified by his Doctor yet the said Solicitor carried on moving the Court with ex partie (sic) documents for substituted service…”. Ground 7 complains about the obtaining ex parte of an order for substituted service on 12 February 2024 and disputes the validity of same.

16. Grounds 8 and 9 are also primarily engaged with the issue of the appellant’s health contending that the respondents’ solicitors “were served with a sworn Affidavit from the Defendant’s Doctor yet they did not make the Court aware that they were in possession of this sworn Affidavit” and alleges mala fides and misleading of the High Court. Ground 9 asserts that the respondents’ solicitors were “fully aware of the Defendant’s health circumstances, matters were adjourned previously by Justice O’Donnell and the medical certificate was noted by the said judge…”.

17. Ground 10 reiterates the assertion that the High Court was not made aware of “the full facts of previous hearings and my Doctors certificates and the Doctors Affidavit in another hearing of a previous case, thus misleading the Court on the day of the hearing ‘Monday the 29th day of July 2024’”. Grounds 11, 12 and 14 impugn the validity of the order in circumstances where the appellant was not present in court, “certified ill”, had been unable to “traverse any of the fourteen Affidavits put before the Court by the Plaintiffs”. It is contended at Ground 13 that since the High Court judge granted a stay on his orders “… [the judge] therefore [was] accepting and knowing that there was something wrong of (sic) the absence of the Defendant therein.”

The appellant seeks the setting aside of the order of Mulcahy J. made on 29th July 2024 and an order remitting the proceedings to the High Court for a rehearing.

18. Thus, in essence the substance of the appeal distils down to a number of net points:

(1) Was Mr. Burke duly served with the proceedings such that he was aware that the application was before the High Court on 29th July 2024?

(2) Did the lawyers for the respondents fail to “make the court aware” that they were in possession of an affidavit from Mr. Burke’s doctor?

(3) If aware of the medical evidence, was the judge entitled in the exercise of his undoubted discretion to proceed with the hearing in the absence of Mr. Burke?

(4) Did the granting of a stay by the judge indicate that he knew and accepted “that there was something wrong” as asserted?

The appellant’s submissions

19. The appellant’s submissions reiterate all of his grounds of appeal and invoke Articles 40(1) and 40(3)(2) of the Constitution. He asserts that he is “… claiming that it was unconstitutional wherein, the trial Judge did not give considerable weight nor regard to the absence of me the Defendant in making the order for the sale of my property in breach of my property rights under the Constitution, … The Land and Conveyancing Land (sic) Reform Act 2009, Section 100(3) which is repugnant to the Constitution.” He asserts that his Article 6 rights under the European Convention and Human Rights to a fair trial have been interfered with and his submissions rely on Article 43 of the Constitution in relation to his property rights:

“… your property is yours and cannot be seized attained or otherwise unless on foot of a court order signed by a judge (not a Court Clerk) in other words if it’s not signed by a Judge it is not valid, and European law treaty of Rome, European principles of proportionality a court order cannot be issued to collect people’s property and Article 10 member states shall take appropriate measures to ensure fulfilment of the obligations arising out of the treaty.”

The respondents oppose all grounds of the appeal and claim that the trial judge was correct.

Analysis of the issues

20. As to the issue of service, there is an affidavit of service of Emily Ledford, solicitor, filed in the High Court on 15th March 2024. It recites the substituted service order of O’Donnell J. dated 12th February 2024 directing that service on Mr. Burke of the special summons and all subsequent documents requiring personal service be effected by way of ordinary prepaid post addressed to him at a specified address in “ Galway… and also by leaving said documents at the address fixed to the gate of the property”. She deposes that on 6th March 2024 she effected service of the proceedings (Record Number 2023/338SP) on Mr. Burke by posting true copies of same by ordinary prepaid post to the said address and the documentation is identified in detail. She deposes that as of 14th March 2024 “the documents have not been returned by the Postal Authorities marked undelivered” and she further confirms that the respondents had commissioned identified processors to “serve the within proceedings upon the Defendant by affixing true copies of the above listed documents onto the gatepost at the Defendant’s address…”. She further exhibits the return report of Sean Fahy of the process servers confirming service via affixing of the said documentation to the property. There is a succinct affidavit of Sean Fahy filed on 21st March 2024 confirming said service.

21. There is a further affidavit of service of Emily Ledford deposed on 8th May 2024 exhibiting a letter from Messrs. Whitney Moore LLP to Mr. Burke on 19th March 2024 notifying him that the case was adjourned to 14th May 2024, allowing him a further opportunity to enter an appearance. The letter went on to state that “on 14th May 2024 we will proceed with our application to have this matter transferred to the judge’s list.” She deposes that same had not been returned by the postal authorities marked “undelivered”.

22. On 2nd July 2024 an affidavit of service by Sean Fahy was filed deposing that on Wednesday 19th June 2024 at approximately 19:24 he served a letter dated 11th June 2024 addressed to Mr. Burke notifying him of the hearing date on 15th July 2024 in accordance with the Order for substituted service.

23. A further affidavit of service of Emily Ledford dated 4th July 2024 deposes that the respondents’ solicitors Whitney Moore LLP wrote to Mr. Burke on 11th June 2024 notifying him of the hearing date as being 15th July 2024. A copy of the letter is exhibited. Same had not been returned by the postal authorities marked “undelivered”. It is further deposed that the process servers affixed a copy of the said letter to the gate of Mr. Burke’s residence “as can be seen from the affidavit of Sean Fahy herein, the envelope was affixed to the gate on 19th June 2024.” The letter was sent by certified post and not returned could not be clearer: “Please note that this matter is listed for hearing on 15th July 2024”. Service by Mr. Sean Fahy was effected the day before the appellant obtained a doctor’s letter in connection with the hearing.

Repeat adjournment applications on medical grounds by Mr. Burke

24. It is evident that Mr. Burke has over the years been a party to other proceedings including claims concerning the beneficial ownership of the shareholding in Doughiska Ardaun Developments Ltd. and a share-charging application by the respondents in circumstances where shares in the said company were transferred by the appellant to one Bernie Turley. The history of the non-attendance of the appellant based on a doctor’s letter are outlined hereafter. The respondents in written submissions assert:

“8. The Share-Charge Application was listed for hearing on 27 May 2022 for the Appellant to show cause. Both the Share-Charging Application and the Plenary Proceedings were listed for hearing on 28 June 2023, 18 July 2023 and again the Share-Charging Application alone on 19 December 2023 and 7 March 2024. In addition, a discovery application involving the appellant was listed before the High Court on two occasions, 4 July 2023 and 7 July 2023.

9. Shortly before each of these hearing dates, the appellant provided a letter from Dr. Adrian Carney to say he was medically unfit to attend Court. On some occasions the matter was adjourned for other reasons so the Court did not adjudicate on the question of whether the Appellant’s letter should affect the outcome.”

25. An application was due to be heard on Wednesday 28th June 2023 and reliance was placed on the medical certificate. On Monday 26th June 2023 Mr. Burke wrote to Whitney Moore LLP Solicitors attaching a medical letter from Dr. Carney G.P. dated 22nd June 2023 asserting that same “speaks for itself”. Dr. Carney outlined that Mr. Burke “presented in a distressed and agitated state with severe depressive symptoms and a passive death wish.” His mind was reported to be “racing” and he reported “severe difficulty processing information and sleeping.” The doctor indicated having started him on anxiety relieving and anti-depressant medication: “These medications will all take time to work. In my opinion he will be medically unfit to engage in legal proceedings for several weeks.”.

26. There was a discovery motion returnable before the High Court on 4th July 2023 in the plenary proceedings. A further medical letter was furnished dated 30th June 2023 by his GP. It reiterates the contents of the earlier letter of 22nd June 2023 and identifies medications prescribed previously. It indicates the appellant was reviewed on 29th June and “remained very distressed”, was experiencing “ongoing insomnia, agitation and restlessness.” With regard to a prognosis, it states “It is very difficult to put an exact timescale as to when Mr. Burke will be fit to engage in the legal proceedings. … It could take a period of months for his condition to stabilize.” The report noted his referral to consultant psychiatry services in Dublin for “further assessment and treatment”.

27. Dignam J. was not satisfied that the letter from the GP dated 30th June 2023 was sufficient to justify granting an adjournment on medical grounds and directed that the GP depose to the position on affidavit. The matter was then adjourned to 7th July 2023. In an affidavit of 4th July 2023, the GP deposed to the matters contained in his medical letters of 22nd and 30th June 2023 respectively. He deposed “in my opinion it could take a matter of months for his condition to stabilize.” On 7th July the matter was again returnable before Dignam J. in the High Court. Mr. Burke failed to attend. The judge declined to grant an adjournment on medical grounds on the basis that the medical evidence was inadequate. The hearing proceeded and the orders sought were made. It is noteworthy that the appellant did not appeal the refusal of Dignam J. to grant an adjournment on the basis of the inadequacy of the medical report and affidavit. Incidentally, Mr. Burke, who attended and self-represented at the hearing of this appeal, indicated that although he had received an appointment with St. Patricks Mental Health Services in Dublin, he had never actually attended same.

28. The plenary proceedings were listed before O’Moore J. in July 2023 and were adjourned for reasons unconnected with Mr. Burke. It is to be noted however that O’Moore J. observed that had another party not applied for an adjournment the court would not have granted an adjournment of the hearing on the basis of the Doctor’s letter and medical certificate that Mr. Burke had submitted in respect of same.

29. The substantive hearing of the share-charging application was listed for hearing before the High Court on 19th December 2023. The Doctor’s letter of 8th December 2023 proffered by Mr. Burke on that occasion was in large measure a regurgitation of earlier letters particularly that of 30th June 2023. However, it appears to imply that Mr. Burke’s condition had improved since the previous June. In December he presented “in a distressed state today”. In late June, he had presented “in a distressed and agitated state with severe depressive symptoms and a passive death wish.” The December letter indicates that he continued to have “sleep disturbance and cannot process information at present” which was broadly similar to his presentation in June - “he admitted to severe difficulty processing information and sleeping”. It appears that medication was prescribed which had previously been prescribed in June. The December medical assessment is entirely identical to the assessment in the penultimate paragraph of his letter of 30th June 2023. On both occasions he concluded “it could take a period of months for his condition to stabilize”. There is no mention of the referral to consultant psychiatry services or why it was no longer considered necessary. Mr. Burke made clear to this Court that he had never attended although he had been afforded an opportunity to do so and had an appointment which he failed to attend. The updated letter of 8th December 2023 is even less persuasive than that furnished on 30th June 2023 and the previous affidavit furnished by the GP. In any event, the High Court judge, Quinn J., granted the adjournment sought and the matter was relisted for hearing in March 2024.

30. Mr. Burke did not attend the rescheduled hearing of the share-charging application on 7th March 2024. Nolan J. in the High Court, having been apprised of the various correspondences, was satisfied to proceed in his absence and made final orders. The letter provided to the High Court from the appellant’s GP was dated 13th February 2024. It represents a significant dilution in his earlier complaints and recalls that “he remains under severe stress and finds that he cannot process information at present.” He was stated to be on identified medications “… to help manage the agitation he is experiencing”. The Doctor expresses the professional opinion that the appellant “remains unfit to engage in legal proceedings or sign legal documents at the present time.” The appellant, however, in his letter to the respondents’ solicitors Whitney Moore LLP dated 4th March 2024, although making reference to the GP’s letter of 13th February 2024, instead emphasises the GP’s affidavit sworn eight months or so previously on 4th July 2023. Mr. Burke in his cover letter selectively quotes from the affidavit, particularly the phrase “In my opinion it could take a matter of months for his condition to stabilize” even though no such assessment is to be found in the GP’s letter of 13th February 2024.

31. It is to be recalled that in initial medical letters such as 24th May 2022, the GP was opining that Mr. Burke “Will be medically unfit to engage in court proceedings for several weeks” (emphasis added). That position was reiterated in the medical letter of 22nd June 2023 which appears to have been substantially a cut and paste of the previous letter and again expresses an opinion that the appellant “will be medically unfit to engage in legal proceedings for several weeks”. Eight days later (30th June 2023) the GP’s assessment was “it could take a period of months for his condition to stabilize”. Same was reiterated at para. 7 of the Doctor’s affidavit of 4th July 2023 referred to above. The Doctor repeated that timeframe in his letter of 8th December 2023 supporting Mr. Burke’s application for an adjournment on medical grounds of the 19th December 2023 hearing.

32. It is noteworthy that any time frame in connection with a prognosis on recovery is abandoned in the GP’s letter of 13th February 2024 and inexplicably there is no reference to Mr. Burke being the recipient of any further treatment or of a referral to a specialist. One is left with the impression that attendance with the GP and furnishing of prescriptions for medication generally coincided with upcoming hearing dates in respect of the plenary or within proceedings.

Conduct of Respondents’ lawyers

33. The appeal levels several serious allegations against the respondents’ legal team. The facts do not support the assertions. It is clear from the various transcripts that counsel on behalf of the respondents to this appeal ensured that all medical evidence was brought to the attention of the judge and opened in court. Nolan J. in the plenary application of 7th March 2024 confirmed that he had read and considered the medical evidence from Dr. Carney noting for instance (p.5 of Transcript, lines 18-25) that the medical reports of 24th May 2022 and 22nd June 2023 were “in identical terms”. Further at p.13 of the Transcript of that hearing, Nolan J. sets out his reasoning, noting in light of the matters asserted in the report that “it was remarkable, to say the least, that the Plaintiff has not been sent to a specialist. However, that does not seem to have occurred.” At p.14 he observes:

“I am perfectly satisfied that there is nothing in the affidavits which prevent this application proceeding and, in the interests of justice, bearing in mind the length of time in which these proceedings have been in train, it seems to me that the case should proceed today.”

34. The court proceeded to hear and determine the application. It is significant that the appellant did not appeal against the decision of Nolan J. granting a final order that the sums due and owing stood well charged over Mr. Burke’s interest in the shares, and further directing that a receiver be appointed by way of equitable execution over same.

35. It is noteworthy that throughout the years 2022, 2023 and 2024 the appellant engaged in correspondence directly with the respondent solicitors, court registrars and the Chief Registrar of the Central Office. The said correspondence was highly coherent and for the most part sought to place reliance certainly in respect of all applications after July 2023 on the contents of the affidavit of Dr. Carney, albeit that he had subsequently dropped key elements of that affidavit from later reports. Although at the hearing of this appeal the appellant emphasised that he had gained assistance from his sister who resides in England in regard to the said correspondence, his robust presentation of his appeal leaves little doubt but that he was playing a pivotal role in directing same.

36. It is noteworthy that Mr. Burke at all material times conducted himself in a manner consistent only with him seeking to delay the proceedings and resistant to any constructive engagement with same. This is exemplified, inter alia, by the fact that it had been necessary for the respondents to apply to the High Court for substituted service and the judge granting the order, O’Donnell J., was satisfied that Mr. Burke had been evading service of the within proceedings. An order for substituted service was granted on 12th February 2024 in respect of all future proceedings and was not appealed.

37. In the context of the within proceedings, it is noteworthy that the appellant failed to attend court on 19th March and 14th May 2024 in the Master’s Court. He failed to appear in the High Court Chancery Special Summons List on 10th June 2024 and when the matter was listed for hearing on 15th July 2024. On the latter occasion, the respondents obtained a short adjournment of the hearing to ensure that persons in occupation of four dwellings at Roscam, Galway were served with the proceedings. At the substantive hearing on 29th July 2024, the appellant once more did not attend. It is evident that in each occasion he was fully aware and had been furnished with clear notice of the hearing date and elected not to attend.

The law

38. Order 36, rule 34 of the Rules of the Superior Court provides:

“The Judge may, if he thinks it expedient for the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.”

Hence, the granting or refusal of an adjournment is a matter which lies within the discretion of the judge to whom the application is made. As the authors Delany and McGrath on Civil Procedure, (5th Ed., 2023) make clear at 22.31, the applicant must advance good reason for the application and in each case “… it will be a matter for a court to evaluate the reason advanced by reference to the circumstances of the particular case.”

39. This is an appeal against the exercise of a discretion by the High Court judge in the management of the litigation. It will be recalled that in the decision Rice v. Muddiman [2018] IECA 402, Irvine J. in this Court stated at para 31:

“…an appellate court will only set aside … a case management decision if the appellant can demonstrate that to fail to do so would call into question the proper administration of justice”, and further that “a significant margin of appreciation must be afforded to a High Court judge, particularly the judge charged with the administration [of a list] and the management of the Court’s own scarce resources…”.

40. There have been relatively clear statements provided in recent years by the Supreme Court in decisions including Kavanagh v. Healy [2015] IESC 37, Tracey v. McDowell [2016] IESC 44 and Tracey v. Irish Times [2019] IESC 62, along with decisions in this Court including Hanrahan v. Gladney [2018] IECA 403, Hanrahan v. Minister for Agriculture and Food [2020] IECA 340, Kildare County Council v. Reid [2018] IECA 370, Geary v. Property Registration Authority [2018] IEHC 727 and Geary v. Property Registration Authority [2020] IECA 132, amongst others, as to the strict obligations on a party who seeks to rely on medical grounds when applying for an adjournment of court proceedings whether substantive or otherwise. The starting point is characterised by Delany and McGrath on Civil Procedures (5th Ed., 2023) at 22.31 thus: “A party is not entitled, as of right, to the adjournment of a hearing date but the court has a discretion to grant an adjournment where good reason is advanced.” They note, in referring to the

decision of this Court in Pepper Finance Corporation (Ireland) DAC v. Petrut [2021] IECA 257, that: “It is not sufficient in that regard for a party to send a letter to the other side and not attend court and either a party or a representative of the party must attend court to make the application.” .

41. The role of the court in evaluating an adjournment application on medical grounds was considered by the Supreme Court (Clarke J.) in Tracey v. McDowell [2016] IESC 44 at para. 6.4:

“…it is most important that all concerned, be they parties or doctors, realise that the role of the court is different. The court is required to take into account the rights and interests of all parties. If a case has to be adjourned or a witness not called then that has the potential to affect the rights of other parties beyond the individual on whose health status a doctor may be required to report. A court is required to balance all the rights involved. However, in so doing a court requires more information than is sometimes proffered to enable it to carry out that task properly.”

42. The respondents place extensive reliance on the judgment of Clarke J. in Tracey v. McDowell. They cite, inter alia, the following passage:

“6.6 … there might be a great deal of difference between a case where it was said that there could be no progress at all until an unspecified time in the future when the patient might recover and one where reasonable measures could be put in place to allow the court process to move along so that it would be ready to go to trial as soon as the party concerned had recovered.

6.7 All of this analysis is designed to show that a bald medical certificate stating that Mr. X or Ms. Y is unfit will frequently be of very little assistance to the court in balancing the rights and interests involved. The court will need to know just what it is that the person concerned can and cannot do, for how long that condition is likely to last, with what degree of confidence can a prognosis for recovery (or at least a sufficient recovery to allow the proceedings to continue) be made and any other matters which might reasonably influence the court's judgment.”

43. In Tracey, where the medical evidence had been there would be a review after six months, Clarke J. noted: “there was no suggestion of a prognosis and no indication as to whether it was likely or unlikely that on such a six month review, Mr. Tracey might be considered to be in a position to progress his proceedings.”

44. In Start Mortgages DAC v. Barry [2023] IECA 22, Haughton J. in this Court carried out a useful review of the jurisprudence including the decision of Collins J. in Promontoria (Oyster) DAC v. Greene [2021] IECA 93 where a judge had refused to permit the plaintiff to put in a corrective affidavit addressing a gap in the plaintiff’s proofs. In Greene, Collins J. had followed the decision of Kearns P. in Lawlor v. Geraghty [2011]

4 I.R. 486 which involved a challenge to the refusal by a coroner to adjourn an inquest. Kearns P. had emphasised that a court on review should be cautious about interfering with a decision to grant or refuse an adjournment. However, he indicated that intervention by the Appellate Court would be warranted where the decision maker had not acted judicially or had failed to employ fair procedures or “…where there is a real manifest or potential prejudice to the applicant.”

45. Collins J. in Greene had observed that the Appellate Court was entitled to intervene and if necessary reverse the exercise of discretion by a High Court judge in refusing an adjournment where the evidence established that the refusal visited “a significant unfairness” on the applicant for the adjournment.

46. It is well settled, particularly since the decision in Tracey v. Irish Times Ltd [2019] IESC

62 in the judgment of MacMenamin J., that medical reports being relied upon in support of an application for an adjournment of court proceedings must address “the real questions which the Court had to determine, which included the likely duration of the illness, and the fact that the President had previously made a specific direction that further medical reports were to be in sufficient detail as to allow him to make a clear

decision as to when the case might proceed.” (para. 20). In July 2023, Dignam J. had pointed out to Mr. Burke what was required and had emphasised that the affidavit and the medical letters furnished did not suffice. As and from 7th July 2023, the affidavit of Dr. Carney filed on 5th July 2023 did not suffice and Dignam J. had proceeded with the matter in the absence of Mr. Burke, explicitly noting on the face of the order that he had taken into consideration the affidavit of Dr. Carney. Notwithstanding same, he had proceeded to make the order for discovery against Mr. Burke and weeks later O’Moore

J. had declined to accept any certificate in the absence of an application to adjourn being moved in front of him.

47. MacMenamin J. in Tracey v. The Irish Times reviewed decisions of this Court, including Hanrahan v. Gladney [2018] IECA 403 and Kildare County Council v. Gerard Reid [2018] IECA 370, observing at para. 25:

“Both these judgments make clear that litigants must now recognise that courts owe duties to all parties, rather than one; and that the courts will require clear and cogent medical evidence precisely identifying why the appellant cannot appear and conduct the case, the duration of indisposition for the purposes of an adjournment application. These are a necessary requirement whether a litigant appears in person or is represented.”

MacMenamin J. had continued:

“26. The observations of the courts must be seen in a context where, on occasion, the courts have been left in a situation where some litigants, whether represented or unrepresented, seemed to think the mere proffering of any medical report might be sufficient to obtain an adjournment. That is a fundamental misconception. Subject to reasonableness, the courts are entitled to ensure that, under the Constitution and Convention, the business of litigation proceeds in an orderly fashion, even in circumstances where litigants do not attend. A court will also consider whether there is a pattern of non-attendance, or other conduct such as the late and unexplained discharge of legal advisors, and retainer of new ones. A court is entitled to draw its own conclusions from such conduct, and, if it decides to adjourn, to set clear conditions on the adjournment.” MacMenamin J., having reviewed the earlier Supreme Court decision in Tracey v. McDowell, observed at para 27:

“It is relevant to this appeal, in that it shows that, in order to make a just order, an appeal court, as well as looking at the fact of an adjournment, is also entitled to consider the substance or merits of the case …”

48. It is worthy of note that the appellant simply ignores the merits of the application brought by the respondents which led to Mulcahy J.’s order of 29th July 2024. MacMenamin J. at para. 33 in Tracey v. Irish Times observed: “…the courts will now closely scrutinise applications for adjournment arising in circumstances such as these. Litigants should not assume that a court will simply adjourn a case in their absence. A court may make such orders as are in the interests of justice. A ‘bare minimum’ medical report, or inadequate explanation, will not suffice as an explanation.”

49. Applying the principles from Tracey to the instant case and looking at the entire circumstances here, we have a situation that as long ago as 3rd July 2015 the appellant had consented to judgment in the sum of €1.6m in favour of the first named respondent and €4.233m in favour of the second named respondent. Further in the context of the within proceedings, the High Court was satisfied that the appellant had been evading service and orders for substituted service had been made.

50. It is clear that the appellant at all material times was aware of the various adjournment dates. From the intervention of Dignam J. in the High Court in July 2023, it was very evident to the appellant what was required in order to secure an adjournment from the High Court on the basis of medical incapacity. The affidavit furnished in July 2023 fell short of the fundamental requirements to demonstrate a medical basis for the exercise by a court of the discretion to grant an adjournment for a good medical reason. Thus, from and after the said date the appellant was actually aware that the affidavit furnished by his GP and the medical letters were inadequate to meet the threshold of a valid reason to warrant the granting of an adjournment on medical grounds. In Minogue v. Clare County Council [2021] IECA 98, Humphreys J. at para. 138 observed:

“138. Modest and all as the adjournment application procedure is, the interests of justice do come in to the analysis very strongly. Among the major factors to be considered are:

(i). whether the party seeking the adjournment has already had adequate previous opportunities to deal with the matter and in particular had the benefit of previous adjournments;

(ii). the lateness of any step sought to be taken by a party;

(iii). the possibility of the adjournment being tactical;

(iv). the extent of real prejudice to the other side;

(v). the views and position of the other side more generally;

(vi). the amount of time that had been allocated to the matter and the extent if any of disruption to the orderly conduct of business by the court;

(vii). the extent of dislocation and inconvenience to other litigants by time of the court being unnecessarily absorbed — in that regard there is a huge difference between a case that will take one or more days or even a substantial portion of a day and a short matter listed on a Monday; and (viii). all other relevant circumstances.”

139. Like many things, adjournment applications lie on a spectrum, from the abusive, tactical or disruptive to the modest and non-prejudicial. At one end of the spectrum, in Kavanagh v. McLaughlin [2015] IESC 27, [2015] 3 I.R. 555, Clarke J. noted that ‘on the morning of the appeal when the Court assembled, counsel (who had not previously been instructed in the case) appeared on behalf of the McLaughlins and indicated that he felt in some difficulty, by reason of the lateness of his instructions in the case, in being able to adequately present his clients’ case’ (para. 6). The court rejected the suggestion that the matter should be adjourned. The key reason for doing so was articulated by Clarke J. as being that, ‘[w]hile a party is more than free to change its legal representation, it cannot do so in circumstances which affect the run of the case or, at least, cannot do so without taking a significant risk that the court will not be sympathetic to an adjournment where that course of action would sufficiently affect the orderly conduct of the court’s business (to the detriment of other litigants) and might also prejudice the interests of other parties to the case’ (para. 7).”

51. Considering the factors identified by Clarke J. and distilled by this Court in Minogue, it is clear that Mr. Burke has sought adjournments on virtually every occasion when the matters were before the court including the plenary proceedings as well as the within summary proceedings since 2022. He had been putting medical letters before the court in aid of adjournment applications and had the benefit of adjournments for instance by Quinn J. in December 2023. Notwithstanding the tenor of initial reports it appears that the appellant was never hospitalised and did not proceed to avail of a referral to a consultant at all. The medical evidence such as it was and in particular subsequent to May 2023 was vague and identified no future time horizon within which it was anticipated that the appellant would be disposed to make himself available for the hearing.

52. One is left with a strong impression, having perused the plenary proceedings in their totality, of the possibility that the various adjournment applications by the appellant were little more than tactical. This is reinforced by the fact that he does not appear to have identified any bona fide defence either in law or on the merits to the application being brought by the respondents. He had consented to judgment being entered against himself on 3rd July 2015. He knew from July 2023 that the medical evidence was inadequate to warrant an adjournment. Further, it is a matter of concern that there was protracted delay which appears to have been intended to be open ended. Mr. Burke was never in a position to identify any specific future date when he anticipated being disposed to attend the hearing. Undoubtedly, litigation is stressful: all litigants faced with substantial claims experience stress and anxiety. Same in and of itself does not, however, entitle a litigant or defendant to secure an adjournment of indefinite duration.

53. To secure an adjournment it is essential that cogent medical evidence be provided to satisfy the court on balance that the litigant is genuinely incapable of attending court by reason of a defined medical condition. On the basis of the available evidence, the professional assessment of the medical doctor is that the individual will be in a position to attend an adjourned hearing within a reasonable time. Even where such evidence is furnished on affidavit by a medical practitioner familiar with the party who seeks the adjournment, the court is entitled to take into account, in exercising discretion, whether the other party will suffer any injustice if an adjournment for a defined period of time granted. The court must take into account the history of litigation and be vigilant to ensure that an adjournment is not being sought on a repeat or tactical basis by a litigant who is simply dragging their heels with no real interest in having the matter progress to a trial or suggestive of an aversion to the matter being concluded. The court is entitled to have regard to whether the party seeking an adjournment has any bona fide basis for defending the proceedings or whether in light of their conduct they exhibit an intention to merely engage tactically with the litigation in opposition to the claim being pursued against them. If, as in Mr. Burke’s case, no basis for defending proceedings is identified, that presents a significant indicator that weighs against the granting of an adjournment particularly if repeat applications for adjournment are made.

Conclusions

54. It is demonstrable that there was no valid application for an adjournment by or on behalf of Mr. Burke before Mulcahy J. on 29th July 2024. Neither was the material before the court in any sense sufficient to warrant the granting of an adjournment of the proceedings. His proofs in respect of any medical condition were hopelessly inadequate. There was no appropriate prognosis, no explanation for the fact that notwithstanding a recommendation to attend a psychiatrist he had elected not to do so and what relevance if any his own chosen course of action might have on his current indisposition. Neither was there any identification of any date by which the appellant expected to be in a position to attend court. It is telling that the appellant did not identify any stateable basis on which he anticipated defending the claim.

55. There is force in the respondents’ argument that Mr. Burke has repeatedly adopted a strategy of attempting to frustrate the progress of the within litigation together with the related plenary proceedings brought by the respondents to enforce their security and recover substantial sums of money due and owing to them (where Mr. Burke had consented to judgment in 2015) by the approach of repeatedly producing wholly inadequate letters from his GP to justify non-attendance in court. It is of relevance that he has never at any point identified any evidence or put forward any submission by way of defence to the claim. Neither did he identify any date when he expected that he would be in a position to attend court in the future. Indeed, it is noteworthy that in his notice of appeal wherein he seeks orders setting aside the entirety of the orders made on 29th July 2024 by Mulcahy J., he bases that application not on any issue going to the merits of the claim but rather on grounds of alleged bias and prejudice and failure to give weight or regard to the fact that he had been “certified ill by his Doctor”. These were serious allegations not supported by any evidence.

56. Grounds 1 and 2 asserting bias and prejudice on the part of the judge are not made out. The appellant has failed to identify any bias and nowhere in the transcripts is there anything that could remotely be characterised as evidencing bias on the part of the judge. Grounds 3-9 assert that the defendant was “certified ill by his Doctor”, “certified unfit”, “unfit to deal with legal papers or legal proceedings which were certified by the Doctor” “… that the plaintiff’s solicitors Whitney Moore were served with a sworn affidavit from the defendant’s doctor yet they did not make the court aware that they were in possession of the sworn affidavit” (ground 8), “the plaintiffs and their solicitors were fully aware of the defendant’s health circumstances… they continued to proceed to bring the matter before other judges with the absence of the information from the previous hearings” and allege mala fides - again repeated at ground 10 alleging the Doctor’s affidavit was not disclosed.

57. These bald assertions are fundamentally inaccurate as the affidavits of Emily Ledford and transcript make clear. All of the medical information and records including the various letters from the Doctor ranging from 24th May 2022 onward, the affidavit sworn 4th July 2023 and up to and including the letter of 13th February 2024 from his GP were put before the court and were in the possession of the judge.

58. In particular, it is noteworthy that Mulcahy J. was apprised of the affidavit of the GP. That is clear from the transcript of 29th July 2024, p.3, lines 25-34 and p.4 of the transcript lines 1-16. It was made clear to the court that the GP’s affidavit had been found by Dignam J. to have been inadequate. Counsel refers the judge to the booklet of papers where at p.299 “Mr. Justice Dignam had ordered in relation to the hearing that was coming up before him that the second defendant would have until the close of business Monday 3rd July to provide adequate medical evidence on affidavit, preferably in the form of an affidavit by a General Practitioner or a report of a General Practitioner appended as an exhibit to an affidavit. And the Court suggested such evidence should provide more detail than has been furnished thus far to include a prognosis and timeline for when the condition of the second named defendant would abate sufficiently so as to proceed with the within action”. The judge was then specifically referred to the GP’s affidavit at “page 285”.

59. It is therefore demonstrably inaccurate for the appellant to maintain his stance, as reiterated on several occasions, that the judge lacked the information regarding the affidavit which had been obtained from the appellant’s GP. This wholly undermines issues being raised inter alia at grounds 3,4,6,8,9,10,11,12 and 14 of the grounds of appeal. A review of the DAR transcript of the hearing shows that the appellant’s letter enclosing a medical certificate which had been sent to the court registrar was put before the judge and thus he had the most recent medical information together with details of the history of the medical position being adopted by the appellant in the within and the plenary proceedings.

60. A review of the approach of Mulcahy J. on 29th July 2024 demonstrates a scrupulously thorough assessment by him of the facts and the evidence before exercising his discretion not to allow any further adjournment in the matter. It is clear that the respondents’ counsel had put all information concerning Mr. Burke’s medical position before the court and indeed same was exhibited to an affidavit. It was gone through in great detail by counsel and assertions to the contrary subtending the notice of appeal at various points are entirely without merit and inaccurate.

61. The judge was entirely correct in his assessment that there was in fact no application by Mr. Burke for an adjournment before him. Mr. Burke’s letter did not explicitly request such and there was nobody in attendance before the court suggesting that Mr. Burke was seeking an adjournment. The court was satisfied on the evidence that Mr. Burke had been notified of the proceedings and the hearing was proceeding on 29th July 2024. Mr. Burke does not dispute that fact. His arguments and points in his notice of appeal concerning the issue of service are meritless. There was ample evidence before the High Court that he was aware that the matter was before the court on 29th July 2024 for hearing. The court was quite correct to have regard to the similarity of the evidence he was purporting to put before the court, which on a previous occasion had been determined to be inadequate for the purposes of supporting the granting of an adjournment of proceedings.

62. With regard to the appellant’s arguments alleging deficits in service of the proceedings or the various applications, the evidence flatly contradicts those assertions. In particular, the arguments advanced (including at ground 5) that Mr. Burke was not “duly served in the proper fashion” and was thereby denied fair procedure, due process and basic principles of natural justice together with arguments at ground 7 that the respondents’ solicitors had “carried on moving the court with ex parte documents for substituted service to which any order founded under these circumstances would be unlawful and a nullity in law” are entirely baseless. It is very evident as was held in an earlier hearing in the High Court that the appellant was evading service of the within proceedings which had issued in December of 2023. An order for substituted service had to be obtained on 12th February 2024. The appellant never appealed same or disputed its validity. It is not now open to him to indirectly impugn same. As is clear from his correspondence with solicitors Whitney Moore, Mr. Burke was fully aware of every adjourned date and his letters to the High Court directly and to the said solicitors demonstrate that he was aware of the hearing date but not disposed to attend same. He attempted to rely on letters from a GP which he knew were wholly insufficient and could not constitute a valid basis for the granting of an adjournment.

63. Although the appellant complains with regard to service and ground 5 asserts that he was “not duly served in the proper fashion”, that complaint is not made out at all. It is abundantly evident that he was in receipt of the papers which were served upon him in accordance with the order for substituted service of 12th February 2024 in the manner outlined in the various affidavits above. Indeed, the very fact that the appellant obtained the medical letter from the doctor dated Thursday 20th June 2024 together with the contents of the correspondence between Mr. Burke and the solicitors for the respondents from June and July 2024 wholly undermines any suggestion that there is any deficit with regard to service. It is evident that a substituted service order was necessitated by reason of the appellant’s own conduct. Thereafter it is evident that service was conscientiously complied with and effected in accordance with the directions of the court. Accordingly, this ground of appeal is simply unstateable.

64. It is noteworthy that the appellant in the instant case attended in court and conducted this appeal as a litigant in person. He presented his case comprehensively. It is noteworthy that from 2022, in the plenary proceedings and from the time of institution of the within proceedings in 2023, Mr. Burke never suggested any basis upon which he might defend same.

65. It must be observed that as and from 7th July 2023, having regard to the rejection of his application for an adjournment by Dignam J. in clear terms which was never appealed, it was apparent to Mr. Burke that the said evidence did not suffice to warrant the granting of an adjournment on medical grounds.

66. When Mulcahy J. granted the order for possession and sale of the lands specified in his order of 29th July 2024, he specified “and it is further ordered that execution on foot of this order be stayed for a period of two months from the day hereof”. The appellant contends that this amounts to acceptance by the judge “that there was something wrong of the absence of the defendant herein” (Ground 13). However, a stay is absolutely the norm in orders for possession and is an entirely practical measure granted at the discretion of the judge and generally availed of for the purposes of enabling a party to comply with the terms of the order, which in this instance involved delivering up possession of four identified properties situate at Roscam, Co. Galway to the respondents to enable exercise of the order for sale. The contention that granting of a stay amounts to knowledge on the part of the judge making the said order of error is unsound and no authority has been identified to support such a proposition.

67. There is a strong inference to be drawn in light of the evidence, including the appellant’s conduct to suggest that his stance, particularly since he dispensed with his own solicitors in March 2023, was primarily motivated by a desire to delay the proceedings and to impede the making of the orders granted by Mulcahy J. Furthermore, beyond technical and wholly unmeritorious arguments in his written submissions, it is evident that he had no substantive defence to the orders being sought by the respondents. One cannot help but note that once the matter proceeded on 29th July 2024 and the orders were granted the appellant had no difficulty in galvanizing himself swiftly to file his notice of appeal on 4th September 2024 in this Court and engaged with the Court Listing thereafter including filing his submissions on 2nd January 2025.

68. It was reasonable for the Court to take into account that notwithstanding his alleged want of capacity the appellant had been in a position to let at least one of the properties the subject matter of the application and that the receiver which had been duly appointed over the properties had been excluded from all four properties at the same time when the appellant was submitting letters from his GP pertaining to the proceedings suggesting that he was not in a position to appear in court.

69. The appellant has not meaningfully engaged with the fact that he never explicitly requested an adjournment in writing. He may have assumed that the court would read between the lines and surmise that such was the purpose of his correspondence. However, it behoved him to explicitly seek an adjournment if that is what he required. In any event it ought to have been obvious to him from July 2023 that there was no prospect of obtaining an adjournment on the strength of the GP’s affidavit as the ruling of Dignam J. had made clear.

70. The Court must bear in mind that pursuant to the European Convention on Human Rights and the Constitution, the Court must have regard to all parties to the litigation and, as was succinctly encapsulated by Ní Raifeartaigh J. in Geary v. Property Registration Authority [2018] IEHC 727 at para. 21:- “…the Court has to find a balance of justice as between the various litigants and its own duty to progress cases with reasonable expedition, having regard to the nature of the case and the content of the motions before it at this time. A considerable amount of leeway is afforded to litigants in person, but they are not entitled simply to disregard court-imposed deadlines nor to hold up proceedings which are legitimately brought by instituting their own set of proceedings which may be misconceived in law, no matter how genuinely they believe them to be valid or have been advised by others behind the scenes that this is so.”

The same can be said of the unwarranted reliance on letters from doctors or affidavits which fall far below the probative threshold outlined above that is a prerequisite to the valid exercise of the discretion to grant an adjournment on grounds of illness of a litigant.

71. This Court subsequently upheld the judgment of Ní Raifeartaigh J. ([2020] IECA 132)

and as Murray J. observed at para. 21:-

“An appellate court can only properly interfere with those decisions where a case management decision is affected by manifest error or patent unfairness. This is especially the case when it comes to the decision whether or not to adjourn proceedings.”

In all the circumstances none of the grounds of appeal have been made out. This appeal falls to be dismissed.

Costs

72. As the respondents have been successful in opposing this appeal and the appellant entirely unsuccessful, my provisional view is that the respondents are entitled to the costs of this appeal. Should the appellant wish to contend for a different order he has liberty to apply to the Court of Appeal Office within 14 days from the date of delivery of this judgment by way of a written submission no longer than 1,500 words identifying reasons why he ought not to be liable for the costs of this appeal. The respondents shall have a further 14 days from receipt of the said written submissions to furnish any written submission of equal length to the Court of Appeal Office. Thereafter this Court will consider the respective submissions of the parties and give its adjudication with regard to liability for the costs of this appeal.

73. As this judgment is being delivered electronically, Faherty and Pilkington JJ. have indicated their agreement to the within judgment.