Court of Appeal dismisses extension of time appeal due to lack of arguable ground and delay.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL Neutral Citation: [2025] IECA 190 Record Number: 2025/66 Faherty J.

Allen J.

Burns J.

BETWEEN/

AG APPLICANT -AND-

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice Tara Burns delivered on the 23rd day of September, 2025

1. This is an application seeking an extension of time within which to file an appeal against the decision of the High Court (Barr J.) ([2024] IEHC 544).

Judgment was delivered on 16 September 2024 and the consequent Order was perfected on 12 November 2024. The time period for lodging an appeal expired on 10 December 2024. The applicant’s Notice of Motion seeking an extension of time within which to appeal was not issued until the 24 March 2025.

Background

2. The applicant stands charged before the District Court with a number of public order offences arising from events which occurred on 25 August 2019. On the day in question, he was accompanied by his two children who were then aged 2 years and 10 months and 4 years and 7 months. He left his younger child asleep in his car when he went into a nearby shop. When he returned to the car, a guard was present on foot of a complaint having been made by a member of the public about the child being left unattended.

Arising from the interaction between the applicant and the guard, a number of public order charges were proffered against the applicant, namely engaging in threatening, abusive, or insulting words or behaviour, contrary to s. 6 of the Criminal Justice (Public Order) Act 1994 (‘the 1994 Act’);

failing to desist from acting in a manner prohibited by s. 6 of the 1994 Act having been directed to do so, contrary to s. 8(2) of the 1994 Act; and failing to provide his name and address following a lawful demand, contrary to s. 24(3) of the 1994 Act.

3. On 19 January 2023, when the criminal proceedings were listed before the District Court for mention, the applicant sought an anonymisation order of the criminal proceedings. The applicant averred in his grounding affidavit filed in respect of these proceedings, that in seeking this order, he informed the District Court judge that the alleged offences referred to the applicant’s children; that the applicant had been reported to Tusla arising from the events at issue; that an anonymisation order had been made related to judicial review proceedings; and that the applicant was contemplating calling his children as witnesses. In passing, it is appropriate to note that the statement of opposition puts this averment partly in issue by pleading that the information that the applicant was contemplating calling his children as witnesses was not provided to the District Court judge and that it did not form part of the application. However, there is no evidence to this effect on the part of the respondent in these proceedings, nor was it sought to challenge the applicant in this regard in the court below. Accordingly, I must proceed on the basis of the evidence in this case which is to the effect that the applicant did make the application for anonymisation on the basis which he has set out in his grounding affidavit referred to above.

4. The District Court judge confirmed with the prosecuting guard that the applicant’s children were not witnesses for the prosecution and that the children would not be identified by any of the prosecution witnesses.

Thereupon, the District Court Judge refused the application on the basis that the charges did not relate to or concern children and there was no basis for making the anonymisation order sought by the applicant.

5. Leave to apply by way of judicial review for an order of Certiorari quashing the decision of the District Court judge which refused anonymisation of the District Court criminal proceedings and an order of Mandamus directing that the District Court criminal proceedings be anonymised was granted by the High Court (Simons J) on 14 March 2023.

The Parties Submissions before the High Court

6. At the hearing before Barr J., the applicant asserted that it was necessary for the criminal proceedings to be anonymised as he might wish to call the children as witnesses in his defence. To protect their identifies, he said, it was necessary that his identity also be protected. He would not call the children if he did not have an assurance that they would not be named in any report of the proceedings. Failure to grant the anonymisation unlawfully interfered with his right to prepare and pursue his defence at trial.

7. The respondent argued that the determination of the District Court judge was made within jurisdiction and in compliance with fair procedures.

Accordingly, there was no basis for the High Court to interfere with this

decision. In addition, it was argued that the District Court judge was in any event correct in the determination he made as there were no grounds for him to make an anonymisation order until the conditions which might necessitate one arose. As the children were not prosecution witnesses and as there was an indication that the children would not be named, the conditions for granting anonymity simply did not arise at the time the application was made.

High Court’s determination

8. The High Court refused to grant the relief sought. Barr J determined:-

“19. The fact that the applicant may decide to call one, or both of his children in his defence at the trial, is a matter that can be addressed in the appropriate way by the trial judge. The trial judge can make whatever order he/she thinks is appropriate to secure a fair hearing and to have regard to the interests of any child who may be called by the defence as a witness. If appropriate, the judge can make an anonymisation order at that time. Alternatively, the judge can impose such reporting restrictions as may be necessary.

20. The court is satisfied that the order refusing the anonymisation order, was made by the District Court judge acting within jurisdiction.

The court is further satisfied from reading the transcript of that hearing, that the District Court judge gave the applicant an opportunity to make his application and gave his reasons for refusing that application. There was no breach of fair procedures in the hearing of the application.

21. The court accepts the argument made by counsel for the DPP, that the charges pending before the District Court do not relate to the applicant’s children. They relate solely to his alleged breaches of the 1994 Act, as amended, arising out of his interaction with the gardaí on the day in question.

22. The court further accepts that the issue of anonymisation of the proceedings, or imposing reporting restrictions thereon, is one that is best addressed by the trial judge, when it is known whether the applicant intends to call either, or both, of his children as witnesses in his defence.

23. In these circumstances, the court is satisfied that no basis has been established on which this court could interfere with the ruling made by the District Court judge on 19 January 2023.”

Failure to File a Notice of Appeal

9. As already noted, the judgment of the High Court was delivered on 16 September 2024 and the Order was perfected on 12 November 2024.

10. The applicant avers in his affidavit grounding the motion seeking an extension of time that he always intended to appeal the decision of Barr J.

He points to an enquiry which he made with the registrar of the High Court by e-mail of 18 November 2024 as to whether, or if not, when, the order of Barr J had been or would be perfected.

11. However, the applicant did not lodge an appeal within the 28 day time limit permitted. He sought consent from the respondent on 16 December 2024 to file a late notice of appeal. This was refused by the respondent on 18 December 2024.

12. It was not until 24 March 2025 that a motion was issued by the applicant seeking an extension of time.

13. The applicant avers in his grounding affidavit, that directions issued in other proceedings on 22 November 2024 caused him difficulty and that he spent an enormous amount of time dealing with the consequences of “an unless”

order which had been made in those proceedings and which he sought to appeal. Whilst it is not averred to in the affidavit that that was the cause of him failing to comply with the time limit to appeal in these proceedings, it must be assumed that this is the reason which he profers for the failure to lodge a notice of appeal or to issue a motion to extend the time at an earlier stage.

Test in Extension of Time Application

14. Criteria to be considered in an application to extend time to appeal were identified in Éire Continental Trading Company Ltd v Clonmel Foods Ltd [1955] IR 170 as:-

(1) “The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

(2) He must show the existence of something like mistake and that mistake as to procedure in particular the mistake of counsel or solicitor as to the meaning of the relevant rule was not sufficient.

(3) He must establish that an arguable ground of appeal exists.”

15. However, as Eire Continental also sets out, a court when determining an application to extend time is not limited by these criteria and retains a discretion with respect to whether an extension will be granted, having regard to the totality of the circumstances of the particular case before it, with the interests of justice being an overriding consideration.

16. The jurisprudence relating to an extension of time was considered by the Supreme Court in Seniors Money Mortgages (Ireland) DAC v. Gately [2020]

2 IR 411. O’Malley J stated at paras 60 - 65 of her judgment:-

“60. The analysis in Goode Concrete v. CRH [2013] IESC 39 sets out the purpose behind the obligation to consider all of the circumstances. Firstly, Clarke J. identified the objective of the court when considering an application to extend time (at paragraph3.3): ‘The underlying obligation of the Court (as identified in many of the relevant judgments) is to balance justice on all sides.’

61. He then went on to identify certain considerations that are likely to arise in all cases.

‘Failing to bring finality to proceedings in a timely way is, in itself, a potential and significant injustice. Excluding parties from potentially meritorious appeals also runs the risk of injustice. Prejudice to successful parties who have operated on the basis that, once the time for appeal has expired, the proceedings (or any relevant aspect of the proceedings) are at an end, must also be a significant factor. The proper administration of justice in an orderly fashion is also a factor of high weight. Precisely how all those matters will interact on the facts of an individual case may well require careful analysis. However, the specific Éire Continental criteria will meet those requirements in the vast majority of cases.’

62. The rationale for holding parties to the stipulated time limits for appeals is, as Clarke J. observed, that in most cases a party to litigation will be aware of those limits and should not be allowed an extension unless the decision to appeal was made within the time, and there is some good reason for not filing within the time. Further, in most cases, the parties will be aware of all the evidence called, the submissions made and the reasoning of the judge – they have, therefore, all the information necessary for the purposes of making a

decision. Goode Concrete was an exception because the appeal was based on information that had come to the attention of the appellants only after the conclusion of the High Court process. It is notable that in granting an extension of time the Court did not permit the appellants to appeal in respect of any aspect that was known to them in the ordinary course. 63.While bearing in mind, therefore, that the Éire Continental guidelines do not purport to constitute a check-list according to which a litigant will pass or fail, it is necessary to emphasise that the rationale that underpins them will apply in the great majority of cases.

64. It should also be borne in mind that, depending on the circumstances, the three criteria referred to are not necessarily of equal importance inter se. As Clarke J. pointed out in Goode Concrete it is difficult to envisage circumstances where it could be in the interests of justice to allow an appeal to be brought outside the time if the Court is not satisfied that there are arguable grounds, even if the intention was formed and there was a very good reason for the delay. To extend time in the absence of an arguable ground would simply waste the time of the litigants and the court.

65. By the same token it seems to me that, given the importance of bringing an appeal in good time – the desirability of finality in litigation, the avoidance of unfair prejudice to the party in whose favour the original ruling was made, and the orderly administration of justice – that the threshold of arguability may rise in accordance with the length of the delay. It would not seem just to allow a litigant to proceed with an appeal, after an inordinate delay, purely on the basis of an arguable or stateable technical ground. Since the objective is to do justice between the parties, long delays should, in my view, require to be counterbalanced by grounds that go to the justice of the decision sought to be appealed. Not every error causes injustice.”

Parties Submissions

17. The applicant submitted that he had formed an intention to appeal within the prescribed time limit which is evidenced by his contact with the Registrar of the High Court in relation to the perfection of the relevant order. He submitted that he was preoccupied with other legal proceedings which caused the delay in filing a notice of appeal and the notice of motion seeking this extension. He asserted that an arguable ground of appeal existed in the case in that he had to have knowledge as to whether an anonymisation order would be made in the case before he ran his defence.

In those circumstances, he submitted that the extension of time should be granted.

18. The respondent accepted that it was probable that the applicant had formed an intention to appeal within the permitted period. However, the failure to do so was not caused by a mistake on his part, nor indeed did the applicant, who was well conversant with time limits applicable in legal proceedings, assert that this was the case. More importantly, it was submitted, an arguable ground of appeal did not exist and thus the High Court was correct to determine that the District Court judge was acting within jurisdiction in making the order he did. In circumstances where the applicant did not meet the test in Eire Continental, it was in the public interest that the criminal proceedings before the District Court be progressed and an extension of time not be granted for an appeal which was doomed to fail.

Discussion and Determination

19. With respect to the first limb of the Éire Continental test, the respondent accepted that it was probable that the applicant had formed an intention to appeal the decision of the High Court in light of his query to the High Court Registrar who was dealing with the matter as to whether, and if not, when, the order of the Court was or would be perfected.

20. I am not of the view that simply because the applicant made the query which he did of the Registrar that this evidences a definite intention to appeal the decision on his part. However, I am prepared to accept that the question of appealing the decision was certainly being considered by the applicant and was a live issue for him on the date of his query; as it must have been from the time the High Court judgment was delivered.

21. With respect to the second limb of the Éire Continental test, there is no evidence before the Court as to why the time limit applicable was not complied with by the Applicant. In particular, there is no evidence relating to a mistake having been made by the applicant which resulted in the notice of appeal not being filed.

22. The applicant suggests in his affidavit that he was under pressure to comply with time limits set in another case and also was attempting to appeal the order setting these time limits. However, he does not explain what effect this pressure had on his ability to appeal in the instant matter. For instance, did he forget about the time limit in these proceedings or did he simply not have the time to attend to filing a Notice of Appeal. Furthermore, the pressure he alludes to arising from his desire to appeal the order causing him concern in the other proceedings, did not arise until after the time limit to appeal the instant decision had passed, as the order setting the time limits whilst made on 22 November 2024, was not perfected until 2 January 2025.

23. The order on which the applicant relies as explaining or excusing his failure to appeal in time was made on 22 November 2024 by the President of the Court of Appeal. The President then extended the time for the filing of the appellant’s submissions in another appeal and ordered that his appeal would be dismissed unless he did so. The applicant met that deadline and filed his submissions. Thus the unless order only accounts for one week, at the most. He had eight weeks before that – from the date of delivery of the High Court judgment – and two weeks thereafter within which he could have filed his appeal.

24. Neither does the applicant aver as to precisely when he became aware of the fact that the order in the instant matter was perfected. He does not in fact exhibit any response from the Registrar he corresponded with. Time in fact expired on 10th December 2024. It is clear that the applicant was aware that he was out of time to file a notice of appeal by the 16 December in light of his request to the respondent on that date to consent to an extension of time. In addition, no explanation is provided with respect to why the applicant did nothing to seek to extend the time within which to appeal until the 24 March 2025, over three months after the time limit expired which he was aware of as of 16 December 2024.

25. Accordingly, whilst the appellant refers to the time limit order in separate proceedings causing him difficulties, there is no explanation of how this impacted on the filing of a notice of appeal in the instant matter. Nothing by way of an explanation of a mistake occurring has been referred to by the applicant. In fact, no reason has been proffered as to why the notice of appeal was not filed on time.

26. That brings me to the final criterion to be considered in an application of this nature, namely whether the applicant has an arguable ground of appeal. This is a hurdle which the applicant cannot meet. As these are judicial review proceedings, the High Court, exercising its judicial review jurisdiction, could only ever have been concerned with the question of whether the District Court acted within jurisdiction rather than whether the District Court had made the correct decision. This is referred to by Barr J.

in the course of his judgment.

27. The decision made by the District Court judge at the point in time when he made that decision was within his jurisdiction to make. Any question as to whether anonymity should be applied to the applicant did not arise at that stage of the proceedings as the proceedings did not relate to his children or their welfare. Public order offences were charged against the applicant in respect of which he was not entitled to anonymity. The stage had not been reached where the applicant’s children were called to give evidence.

Accordingly, there was no evidential basis upon which the District Court judge could have granted an anonymisation order in respect of applicant and an error amenable to relief by way of judicial review has not been identified.

28. It may transpire when the criminal proceedings are ultimately heard before the District Court that a situation arises where it is appropriate for an application to be made for anonymity or reporting restrictions in relation to the identity of the applicant. However, the application made in the instant matter was premature and the District Court judge’s refusal of the application was within his jurisdiction to make.

29. The fact that the anonymisation application was refused does not mean that the applicant cannot prepare for and run his defence. The applicant is free to run whatever defence he so wishes. In addition, he has the added benefit that he can seek the separate issue of anonymity or reporting restrictions to be put in place when there is an evidential basis for so doing which was not the position when the original application was made.

30. Accordingly, while the applicant may have intended to appeal the decision of the High Court, he has failed to explain why he did not do so within time and why it took him over three months after the date of expiry of the time limit to take any step in that regard. In addition, and most importantly, an arguable ground of appeal does not exist in light of the fact that the decision of the District Court judge was made within his jurisdiction.

31. Having regard to the particular circumstances of this case, the interests of justice are against the grant of an extension of time.

Conclusion

32. Accordingly, I would refuse the applicant an extension of time to lodge an appeal against the Order of the High Court.

33. As this judgment is being delivered electronically, Faherty and Allen JJ.

have authorised me to say that they agree with it. Approved No Redaction Needed