Court extends time for respondents' notice despite late filing, deeming it good on 18 September 2025.

APPROVED

NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Appeal Number: 2025 218

Neutral Citation Number [2025] IECA 293

Allen J.

IN THE MATTER OF

THE CREDIT INSTITUTIONS (STABILISATION) ACT 2010

BETWEEN/

GERARD DOWLING, PADRAIG MCMANUS, PIOTR SKOCZYLAS,

SCOTCHSTONE CAPITAL FUND LIMITED

APPELLANTS

-AND-

IRELAND, THE ATTORNEY GENERAL AND THE MINISTER FOR FINANCE

REPONDENTS

EX TEMPORE JUDGMENT of Mr. Justice Allen delivered on the 12th day of December, 2025

1. This is an application on behalf of the respondents for an extension of time, if necessary, for the filing and service of a respondents’ notice. The notice of motion invokes

O. 86, r. 3, O. 122, r. 7(1) and the inherent jurisdiction of the Court, but it seems to me that the power is to be found in O. 86, r. 3(2)(b) which expressly provides that the Court of Appeal may extend any time limit set by the rules – including by virtue of sub-rule (3), on an application made after the time limit has expired – unless to do so would be contrary to the provision of any statute.

2. The motion is grounded on an affidavit of Ms. Ruth Lynch, a solicitor in the Chief State Solicitor’s office.

3. Ms. Lynch introduces the appellants as former shareholders in Irish Life & Permanent Holdings plc who have previously and unsuccessfully challenged directions orders made by the Minister for Finance under the Credit Institutions (Stabilisation) Act 2010 to recapitalise that company; and she gives a long list of High Court applications and actions and appeals to this Court and to the Supreme Court. She summarises the action the subject of the appeal as a challenge to the constitutionality and consistency with EU law of the 2010 Act. Ms. Lynch does not emphasise it but the action was commenced by plenary summons issued in 2013.

4. The orders under appeal were made by the High Court on 12 March 2025 and were perfected on 28 July 2025. The appellants filed their notice of appeal on 15 August 2025. The notice of appeal – as Ms. Lynch puts it – was “sent to” Ms. Lynch by e-mail on 15 August 2025. The e-mail was sent to Ms. Lynch’s personal e-mail address and not to any other CSSO e-mail address.

5. Recalling – I think – a question asked by the Court when the appeal was last in the list for directions, Ms. Lynch confirms that the respondents are not taking any point regarding the service of the notice of appeal by e-mail rather than by hard copy. Neither do the respondents make the point that the appellants failed to file an affidavit of service as required by O. 86A, rule 14(3).

6. Ms. Lynch has been the solicitor dealing with this file from mid-2022, since when Mr. Skoczylas has been sending the documents relating to the case to her e-mail account. For a while he sent the documents to a general CSSO address as well, but since early 2023 he has been sending them to Ms. Lynch’s address only.

7. From 21 July 2025 until 1 September 2025 Ms. Lynch was out of the office on leave. Before leaving, she set up an automatic “out of office” response to any e-mail that would arrive in her account advising the sender – immediately – that she would be out of office until

1 September 2025 and asking that the incoming e-mail be redirected to two named colleagues, whose e-mail addresses were given. She exhibited two samples of the response sent to and received by two of her colleagues, and a printout showing that – according to the CSSO records – it was sent to Mr. Skoczylas’s e-mail address on 15 August 2025 at 15:50:55.164 precisely. Mr. Skoczylas’s e-mail to Ms. Lynch to which the notice of appeal was attached was timed for 15:51, which is obviously rounded up. Mr. Skoczylas’s e-mail was not redirected to Ms. Lynch’s colleagues.

8. Ms. Lynch returned to the office on 1 September 2025. She then learned that the High Court order had been perfected on 28 July and the notice of appeal filed and sent to her email address on 15 August. She sent the notice of appeal to counsel and instructed counsel to prepare a respondents’ notice.

9. Mr. Skoczylas was watching the clock. On 8 September 2025 (which was a Monday) at 9:09 he e-mailed the Court of Appeal office – copying Ms. Lynch – asserting that the respondents were legally obliged – and had manifestly failed – to serve a respondents’ notice by 5 September (which was the previous Friday). Mr. Skoczylas was perfectly correct in saying that the respondents’ notice had not been filed within 21 days: it was nine minutes overdue. He (in bold type) respectfully firmly objected to the office accepting or issuing any belated filing of the respondents’ notice and asserted that the Court must not give preferential treatment to the State respondents. Any such preferential treatment – he said – would amount to objective bias exhibited by the Court to the State respondents. In a follow up e-mail at 10:11, Mr. Skoczylas – citing O. 86, r. 11(4) and r. 11(5) – asserted that no belated respondents’ notice could lawfully be accepted and that the respondents were obliged to apply to the Court, on notice to all parties to the appeal.

10. By the way, Mr. Skoczylas’s reference to sub-rules (4) and (5) of rule 11 was mistaken but it was an obvious mistake. Order 86, r. 11 has three sub-rules. The powers conferred on the Registrar by O. 86, r. 11(1) to deal with non-compliance are subject to sub-rules (4) and

(5) of r. 3: so it was obviously sub-rules (4) and (5) of rule 3 that he had in mind. Mr. Skoczylas quickly corrected his mistake in another e-mail at 10:28.

11. On 18 September 2025 Ms. Lynch filed a respondents’ notice – or purported respondents’ notice –in the office and sent a copy to the appellants by e-mail sent at 16:16. According to Ms. Lynch, the Registrar was entitled to accept the late respondents’ notice under O. 86, r. 3(5) “for lodgment without prejudice to the right of any party concerned to object to the late lodgment.” In the meantime Mr. Skoczylas had e-mailed the office again on

15 September and 18 September at 14:54 reasserting his argument that a formal Court application was required and seeking to forestall any suggestion that O. 122, r. 5 might have suspended the running of time in August.

12. Mr. Skoczylas responded to the service of the respondents’ notice – or purported respondents’ notice – by two e-mails sent in the evening of 18 September and one in the morning of 19 September. The second of the 18 September e-mails – which suggested that the Registrar was incompetent and biased – was purportedly withdrawn on 19 September but what was said ought never to have been said and besides withdrawing it, Mr. Skoczylas ought then to have apologised for it. Mr. Skoczylas’s allegation of “patent bias to date and/or lack of competence of the Office of the Court of Appeal” was disrespectful and it was not made otherwise by the fact that it was prefaced by the word “respectfully”. As I will come to, Mr. Skoczylas’s hope in withdrawing his second e-mail may have been that it would never come to the attention of the Court.

13. In any event – as Ms. Lynch puts it – the substance of Mr. Skoczylas’s reaction was that the respondent’s notice was “a nullity”.

14. Keeping open the argument that time might not have run during the month of August, Ms. Lynch regretted and apologised for “any” delay. She made three points: first, that any delay had not caused the appellants prejudice of any kind; second, that the respondents’ notice had been filed eight weeks before the first directions hearing; and third, that the appellants could never have been in any doubt that the respondents would be opposing the appeal.

15. In reply to the affidavit of Ms. Lynch, Mr. Skoczylas filed quite a long affidavit on 4 December 2025. He made a number of points and it is convenient that I should deal with them as I go. He did not expressly say that he swore the affidavit on behalf of the other appellants and with their authority as well as on his own behalf but I presume that he did. And in an event, that is immaterial to the substance of the issues which he raised. The replying affidavit comprises in the main legal argument but it is convenient to address the points made – and the respondents’ answer to them – as I go through the affidavit.

16. Mr. Skoczylas asserted that Ms. Lynch had misstated the factual position, omitted material facts, and advanced explanations which were incapable of excusing a clear breach of the rules.

17. He asserted firstly, that Ms. Lynch had created the misleading impression that what he described as this exceptional constitutional case resulted from interrelated proceedings; that there was no cogent basis for referring to the other cases; and that such reference served only to mislead the Court as to the provenance and scope of these proceedings. I reject each of those assertions. The fact is that this case is one of a number of cases taken by the appellants. Ms. Lynch did not suggest that it was any more or less important than any of the others. The appellants’ challenge to the constitutionality and consistency with EU law of 2000 Act was obviously serious. The fact that all of the previous cases had been opposed arguably went to any issue that might have been raised by the appellants as to whether they expected that the appeal in this case would be opposed; although to my mind it was clear beyond peradventure from Mr. Skoczylas’s attempt to forestall the filing of a respondents’ notice at nine minutes past the due time that he well knew that the appeal would be opposed.

18. Secondly, Mr. Skoczylas emphasised the requirement that the respondents’ notice should have been served within 21 days of service of the notice of appeal. This is not – as he asserted – a statutory requirement but a requirement of the rules, so that the exception to the power conferred on the Registrar by O. 86, r. 3(b) is not engaged. Mr. Skoczylas suggests that it is notable that Ms. Lynch did not engage with his e-mail of 8 September but I am not persuaded that it is. Mr. Skoczylas’s objection was based on a legal argument that was either right or wrong, and if it was not clear at the time that any attempt to argue the point in correspondence would have been an exercise in futility, it is now. In oral argument Mr. Skoczylas suggested that if the CSSO had engaged with his correspondence and apologised, he would have had less to say but he stopped short of saying that if the appellants had been asked for a letter of consent to the late filing of the respondents’ notice, it would have been forthcoming. The fact is that although copied to Ms. Lynch and the other appellants, Mr. Skoczylas’s e-mail was addressed to the Court of Appeal office and two registrars.

19. Mr. Skoczylas argues on the one hand that the respondents impermissibly extended the time for the filing and service of the respondents’ notice, and on the other than it was a nullity. At para. 14B he sets out his core legal argument. Order 86, r. 3(4) – he says – permits acceptance of a late document only with the written consent of all other parties. That is broadly but not precisely correct. Order 86, r. 3(4) provides that:- “Where a document is presented for lodgment late, the Registrar may accept the document for lodgment with the written consent of every other party concerned.”

20. The rule applies in a case in which there is written consent and not to any other case. It permits the acceptance of a late document if there is consent, but does not preclude the acceptance of a late document in any other case.

21. Order 86, r. 3(5) – he contends – permits acceptance of a late filing only absent prior objection. It does not. In practical terms, the argument is that the power conferred on the Registrar by O. 86, r. 3(5) can be displaced by a prior objection by a litigant. Order 86, r. 3(5)

provides that:-

“Where a document (other than a notice of appeal) is presented for lodgment late, the Registrar may accept the document for lodgment without prejudice to the right of any party concerned to object to the late lodgment.”

22. Sub-rule (4) applies in a case where there is consent. Sub-rule (5) applies in a case in which there is no consent. I see no warrant for construing the rule as limited to cases in which the absence of consent has not been articulated, which would preclude the application of the rule to any case in which consent had been sought and refused. This construction does not – as contended – render rule 3(4) redundant. The two sub-rules apply to different situations. I reject the argument that in a case where the appellant has filed a prior objection, the Court of Appeal office has no power to accept the late respondents’ notice.

23. In what is a legal submission at para. 14C of his replying affidavit, Mr. Skoczylas is perhaps on firmer ground. Order 122, r. 5 provides that:- “Save on consent of the parties or by direction of the Court, the month of August shall not be reckoned in the computation of the times appointed or allowed by these Rules for amending, or delivering a pleading.”

24. Order 125, r. 1 provides that “‘pleading’ includes an originating summons, statement of claim, defence, counterclaim, reply, petition or answer.” Mr. Skoczylas makes the point that those are all documents filed and served at first instance and he refers to para. 5-01 of Delaney & McGrath which says that it is important that a claim or defence be pleaded properly because if an allegation of fact is not pleaded, no evidence can be adduced, or finding made, in relation to it by the court of trial. Mr. Skoczylas emphasised the reference to court of trial. Ms. O’Neill S.C., for the respondents, points to the immediately preceding sentence in para. 5-01 which suggests that the term “pleading” can be applied to a variety of documents which sets out the contents of a claim or defence and thus identify the issues between the parties. The object of a respondent’s notice – she argues – is to identify the issues: and so it can properly be regarded as a pleading. Ms. O’Neill points to the fact that different rules apply to notices of appeal and respondent’s notices.

25. Mr. Skoczylas’s submission that there is no caselaw extending the definition of pleading to a respondent’s notice rather begs the question but counsel was unable to identify any authority to the effect that a respondent’s notice is a pleading, and conceded that there is some uncertainty in the law. It is, I think, of some significance that the suspension of time in

O. 122, r. 5 is directed to pleadings, while the order elsewhere – in rr. 1, 3, 7 – deals with the time limited by the rules for “doing any act or taking any proceedings”. I do not believe that para. 29 of Supreme Court Practice Direction SC 19 really advances matters. I do not think that it is necessarily to be inferred from the practice direction that time does not run in the month of August and for two weeks at Christmas either that time does, or does not, run during August for pleadings.

26. I do not believe that it is necessary or desirable to finally decide this question on this application. It is not necessary because, in the end, the appellants did not oppose an extension of time. It is not desirable because the issue is one on which it is accepted that there is some uncertainty in the law. That being so, it is undesirable that I should determine the issue as a judge sitting alone. Because there is – in the end – no opposition to an extension of time, the point is, in this case, largely academic. The object of the motion now before the Court is to ensure that the appeal can be moved on justly and expeditiously.

27. One of the options open to me is to refer the question of law to a panel. If Ms. O’Neill had nailed her colours to the mast, that is what I would have done. But she did not. In circumstances in which I have come to a clear view on the alternative application, such a reference would further delay the progress of the appeal.

28. For those reasons, I will deal with the motion on the premise that time did run in August and accordingly, that the respondent’s notice was late. Far from – as Mr. Skoczylas would argue – displacing the power of the Court of Appeal office to accept the respondents’ notice for filing, the fact that it was late engaged the power conferred by O. 86, rule 3(5).

29. I accept the appellants’ submission that the Court of Appeal office must treat State respondents without preference or bias. I unhesitatingly reject the submission – for which there is no basis whatsoever – that the respondents in this appeal were treated otherwise than the respondents in any other appeal. In his oral submission, Mr. Skoczylas suggested that it is the practice of the Court of Appeal office to strictly enforce the 21 day time limit for both notices of appeal and respondent’s notices. That is simply not true and Mr. Skoczylas had no basis for suggesting it. Order 86, r. 3(5) clearly provides that notices of appeal are to be treated differently to other documents. And they are. There is simply no basis for the suggestion that the respondents’ notice in this appeal was treated any differently to a respondent’s notice in any other appeal. Mr. Skoczylas was quite wrong to suggest that if the shoe was on the other foot the office would not have accepted a respondent’s notice from him; and he had no reason to believe that.

30. Under the rules, the acceptance of the late filing was without prejudice to the appellants’ right to object to it. Arguably, a late acceptance of a document puts the ball on the objector’s court but in this case the respondents took the initiative to get the question resolved. That was a practical and constructive approach to a particular appeal. Ms. O’Neill made clear that it was not to be inferred from the fact that the respondents made the application in this case that they accepted that it was necessary. For the avoidance of doubt, although I have dealt with this motion as an application for an extension of time, I have not decided that such an extension of time was necessary.

31. At para. 17 of his affidavit, Mr. Skoczylas suggests that Ms. Lynch has attempted “various manoeuvres” to excuse the respondents’ non-compliance with the time limit, which manoeuvres, he contends, are irrelevant and baseless. First of all, he complains that Ms. Lynch’s evidence that she was on parental leave is uncorroborated. That is nonsense. Next, he says that Ms. Lynch should have informed the appellants of her absence from the office. If what is behind this is that Ms. Lynch should have notified the appellants of her proposed absence before going on leave, I reject it. If what is behind this is that Ms. Lynch should have made arrangements to ensure that the appellants would be notified of her absence in the event that there were any developments during that time, that is precisely what she did. She set up an out of office message to re-direct any enquiries which came into her e-mail account to her colleagues. The suggestion that the respondents’ notice running to four and a half pages of “bog-standard text” might have been prepared and filed in the five days between Ms. Lynch’s return and the expiry of the 21 days is not only impudent but fails to take account of the fact that the grounds of appeal run to 40 pages of dense text.

32. Mr. Skoczylas, at para. 23, rather obliquely denies that he received the out of office message. He is critical of the corroboration of Ms. Lynch’s evidence that it was sent but is not so bold as to contest the fact that it was sent. He has a good deal to say about the redaction of the names of the recipients of the sample e-mails which he suggests renders them unreliable and complains that the log – which proves that the out of office message was sent

– is hearsay, and does not in any event prove that it was received. He exhibited a printout of a Microsoft trace report of messages received by him which does not show the e-mail of 15 August but he did not exhibit the request to Microsoft which would show the parameters of the search. He suggests that an e-mail sent to him by Ms. Lynch on 4 September shows that “she had both access to, and awareness of, the case file during the relevant period”, which, of course, it does not.

33. In circumstances in which there is no suggestion that in the two and a half years or so prior to 15 August 2025 during which Ms. Lynch was dealing with the case there was any difficulty in the delivery of e-mails, I find it hard to credit that Mr. Skoczylas did not receive Ms. Lynch’s out of office message, but it is sufficient if I find – as I do – that it was sent, and that the notice of appeal did not come to Ms. Lynch’s attention – or to the attention of anyone else in the CSSO – until 1 September. When the notice of appeal did eventually come to Ms. Lynch’s attention, she dealt with it promptly and efficiently.

34. Then Mr. Skoczylas complains that Ms. Lynch did not set out the entirety of his emails in the body of her affidavit. All of the e-mails were exhibited and his suggestion of a lack of candour is baseless and scandalous. He complains that Ms. Lynch exhibited his second e-mail of 18 September which he says was withdrawn on the following morning and that she did so to discredit him. The fact is that the e-mail of 19 September refers to both of his e-mails of 18 September. In answer to an invitation from the Court to elaborate on his complaint that his second e-mail of 18 September had been exhibited, Mr. Skoczylas said that he was unsettled to be asked about it. If he was, the cause of any discomfort was not the question. In fairness, after Ms. O’Neill had replied, Mr. Skoczylas said that if – contrary to his belief – he had treated anyone disrespectfully, he apologised.

35. Finally, in his affidavit, Mr. Skoczylas says something about alleged prejudice. It is hard to follow but the substance of it appears to be a repetition that the respondents, because they are State respondents, were given preferential treatment. For the reasons already given, I have rejected this baseless assertion. Furthermore, he says, the late filing of the respondents’ notice has necessitated procedural correspondence and this motion, thereby – he says – diverting time and resources. Viewed objectively, however, it is not the late filing which has given rise to all this fuss and bother but the appellants’ attempted obstruction of the filing.

36. It is settled law that the object of the rules is not to punish litigants for oversight or default but to advance the administration of justice. The respondents’ delay in filing and serving their respondents’ notice has been clearly explained.

37. Mr. Skoczylas has not attempted to contest the proposition that the appellants were perfectly well aware of the fact that their appeal would be opposed. Mr. Skoczylas has not attempted to engage with Ms. Lynch’s evidence – which is undoubtedly correct – that the appellants had the respondents’ notice eight weeks before the first return date so that the late filing has not delayed or prejudiced the appeal in the slightest.

38. There will be an order pursuant to O. 86, r. 3(2)(b) formally extending the time for the filing and service of the respondents’ notice and an order deeming good the filing and service of the respondents’ notice on 18 September 2025.

39. If the extension of time is not – as Mr. Skoczylas would argue – a win or success for the respondents, they have achieved their objective in regularising the respondents’ notice and Mr. Skoczylas, by opposing the motion, has achieved nothing and has put back the appellants’ appeal by four weeks.