Court refuses late appeal extension due to lack of arguable grounds and availability of alternative legal remedies.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Court of Appeal Record No. 2026/48

High Court Record No.: 2022 No.16 CAB

Neutral Citation: [2026] IECA 130

Butler J. Meenan J. Burns J.

BETWEEN/

CRIMINAL ASSETS BUREAU

APPLICANT/RESPONDENT

– AND –

DERMOT CALVERT, MARTINA HARTY AND STACEY CALVERT

RESPONDENTS/APPLICANT

JUDGMENT of Ms. Justice Butler delivered ex tempore on 6th July 2026

1. This judgment deals with an application under Order 86, rule 3 of the Rules of the Superior Courts for an extension of time for the service of a notice of appeal against the judgment and order of the High Court made on 15th January 2025 and perfected on 30th January 2025. The application is made by the third named respondent to the original proceedings in the High Court (“the applicant”). The applicant’s application was filed on 4th March 2026.

2. As is evident from the brief timeline outlined above, the application for an extension of time was first filed over a year after the time ordinarily limited for the bringing of an appeal had expired. Further, the application is unusual in that an appeal against the same judgment was brought by the first and second respondents to the original proceedings, which appeal was heard in July 2025 and a judgment dismissing the appeal was delivered on 15th September 2025.

3. It is undisputed that the Court of Appeal has jurisdiction to extend the time within which an appeal may be brought to it. It is also undisputed that this jurisdiction is discretionary and, although there is a significant volume of jurisprudence dealing with circumstances in which it is appropriate to extend the time for bringing an appeal, ultimately the

decision falls to be made in light of what is in the interests of justice in the particular case.

4. Traditionally the court looked to three criteria set out in the judgment of Lavery J. in Éire Continental Trading Co. Ltd. v. Clonmel Foods Ltd. [1955] I.R. 170. These criteria are (1) that the intending appellant must have formed a bona fide intention to appeal within the permitted time limit; (2) the explanation for the delay (initially it was required that something akin to mistake be shown) and (3) that there are arguable grounds of appeal. More recent case law such as the judgment of the Supreme Court (O’Malley J.) in Seniors Money Mortgages (Ireland) DAC v. Gately [2020] 2 IR 441 emphasises that these criteria are not rigid rules or conditions compliance with which would entitle a litigant to an extension of time within which to appeal and noncompliance with which would automatically exclude the possibility of such extension being granted. In all cases the court must consider the surrounding circumstances and whether it would be in the interests of justice to permit the extension. Nonetheless, the Éire Continental criteria remain relevant because, as noted by O’Malley J., “the rationale that underpins them will apply in the great majority of cases”.

5. Consequently, it is necessary to look at the circumstances in which the applicant is seeking to bring this appeal before considering whether the Éire Continental criteria have been met and whether, in any event, it would be appropriate to grant the requested extension of time.

6. The proceedings in the High Court involved an application by the respondent (the Bureau) under section 3 of the Proceeds of Crime Act 1996, as amended (“the 1996 Act”). This section allows the Bureau to apply for and the High Court to make orders prohibiting a respondent from disposing of or dealing with specified property of which the respondent is in possession or in control, once it is shown that the property constitutes or was acquired in connection with the proceeds of crime. The Bureau’s application in this case related to a number of items of property including a property at

26 Singland Crescent, Limerick consisting of a dwelling house at the side of which a granny flat/apartment had been constructed. The application also related to a second property, cash which had been found in searches of the property and a VW Passat motor vehicle registered in the name of the applicant.

7. The property at Singland Crescent was purchased in 2014 for a declared purchase price of €17,250 and the applicant was registered as the owner in January 2015. The applicant resides in the house with her three children, two of whom have extensive medical needs. She does not work and is dependent on social welfare. The house was extensively refurbished subsequent to its purchase, the High Court placing a value of €100,000 on the works comprising this refurbishment and the construction of the associated granny flat. The applicant’s father, the first respondent, resides in the granny flat together with his partner, the second respondent. The value placed on the premises as a whole at the time of the High Court hearing was €170,000.

8. In the High Court, Owens J. ([2025] IEHC 73) delivered a detailed written judgment on the Bureau’s section 3 application on 15th January 2025. Based on the evidence adduced by the Bureau, the High Court was satisfied that €14,000 of the initial purchase price of Singland Crescent came from damages received for a personal injury claim by the applicant. However, the current value of the premises reflects the significant amount of work involved in its refurbishment, all of which was paid for by the proceeds of the first respondent’s criminal activity, namely drug dealing. Consequently, the High Court made an order under section 3 in respect of Singland Crescent. However, in light of the special circumstances of the case and on the basis of a concession made by the Bureau, the High Court allowed the applicant and her children to continue to reside in the premises for a period of 7 years. The High Court also declared that the applicant had an equitable interest in the property for 20% net proceeds of the eventual sale value.

9. The first and second respondent appealed against the High Court judgment within the appropriate time limit. That appeal was heard by the Court of Appeal in July 2025 and judgment was delivered on 15th September 2025 (Allen J. [2025] IECA 188). The appeal was dismissed and the court expressly upheld the findings of the High Court regarding the absence of any legitimate source of income on the part of the first respondent (or either of the other respondents) and that the property subject of the application was the proceeds of crime. The applicant relies on the fact that although the notice of appeal initially related to all of the property that had been subject of the High Court application, the first and second respondents ultimately dropped the challenge to the trial judge’s findings and conclusions insofar as they related to the Singland Crescent property. Therefore, the applicant’s contention is that the appeal she now wishes to bring is materially different to and relates to different property than that the subject of the previous appeal.

10. The applicant has sworn two affidavits in connection with her application for an extension of time. Her general position is that she expressed an intention to bring an appeal, even before judgment was delivered in the High Court, should the outcome be unfavourable to her. She claims the solicitor originally instructed on her behalf did not inform her of the time-limit for bringing an appeal. This appears to be on the basis that the Bureau was awaiting perfection of the order. However, this occurred relatively promptly and the order was perfected on 30th January 2025. This meant that the time for bringing an appeal expired on 26th February 2025. As noted, the first and second named respondents brought an appeal within that time.

11. The applicant also claims to have been unable to contact her former solicitor, a claim which sits uncomfortably with the fact that the solicitor obtained the opinion of senior counsel as to the merits of an appeal and advised the applicant that grounds of appeal could not the identified. We are not told when this occurred. The applicant instructed a new solicitor by 6th June 2026, a few weeks prior to the date on which the appeal brought by her father and his partner was due to be heard in this court and some 4½ months after the time for bringing an appeal had expired. She maintains that there was some – unexplained – difficulty in obtaining the full file from her former solicitor. There is no clarity as to how much of the file was missing. Neither is there any explanation as to why such difficulty arose in circumstances where her former solicitor was acting on the ad hoc legal aid scheme such that no legal fees could have been outstanding to her from the applicant.

12. The applicant had her first consultation with her new solicitor on 19th November 2026. This is over 5 months after that solicitor had initially been instructed and 10 months after the time for bringing an appeal had expired. There is no evidence of any urgency on the part of the applicant or her solicitor during this period. The applicant says she did not receive the full solicitor’s file until 17th December 2025 and the opinion obtained by the first solicitor from a senior counsel was not received until 6th February 2026. In circumstances where there was an apparent delay in obtaining all the necessary papers, it does not appear that any effort was made to obtain those papers from the Bureau.

13. In neither of the affidavits sworn by the applicant does she provide any detail nor any supporting evidence, such as correspondence or evidence of emails or phone calls, to support her assertion that she was repeatedly in contact with her first solicitor in an attempt to obtain relevant papers that were otherwise unavailable to her. It is not clear why, having consulted with her new solicitor in November 2025 and obtained the first solicitor’s file in December 2025, it was nonetheless regarded as necessary to obtain the opinion of senior counsel which advised against any appeal before proceeding to make this application.

14. Turning to the Éire Continental criteria, it is difficult to see how the applicant can contend that she had formed a bona fide intention to appeal within the time permitted for doing so. Firstly, an intention to appeal if a case is decided against you, regardless of what the judgment might say and without knowing whether there are any valid grounds of appeal against it, can hardly be characterised as a bona fide intention. Further, the applicant was advised by her first solicitor that there were no grounds of appeal and so any intention to appeal after that and before receiving the advices of her current legal team could only be regarded as an abuse of process rather than as something bona fide.

15. Secondly, the applicant has not provided any credible or coherent explanation for her delay of over a year in seeking to bring this appeal. As noted, she provided no detail of any of her exchanges with her previous solicitor and very little of her interactions with her current solicitor. When asked directly by the court, counsel was unable to assist notwithstanding that his client was present in court throughout the appeal hearing. In particular, the applicant provided no explanation as to how she did not appreciate the need to bring her appeal promptly in circumstances where an appeal against the same judgment was being actively prosecuted by her father and his partner in July 2025. She does not address her knowledge of, nor the implications for her appeal of the judgment of this court upholding High Court judgment in her father’s appeal. Indeed, her own appeal was not launched for a further 6 months.

16. Thirdly, the applicant has not advanced any arguable grounds of appeal. In looking at whether the grounds of appeal are arguable it is significant that this court has already upheld the judgment of the High Court in her father’s appeal. The applicant does not address this issue at all, save to note that her father and his partner dropped their appeal insofar as it related to Singland Crescent. Further, the draft notice of appeal advances thirteen grounds. In the course of the hearing of this application, counsel conceded that grounds 5 to 10 inclusive were not arguable. After the submissions made on behalf of the Bureau, he also accepted that ground 2 was based on an outdated version of section

63 of the Criminal Justice Act 1994 and that the extant version of section 63(3) does in fact provide a proper legal basis for the gathering and admission of financial documents obtained pursuant to that section.

17. I do not propose to go through each of the other grounds of appeal at length and instead will deal with them cumulatively as they share many common characteristics. Firstly, the grounds of appeal by and large do not take account of the scheme of the Proceeds of Crime Act. Under section 8 of that Act the belief held by a member of the Bureau that a respondent is in possession or control of specified property that constitutes the proceeds of crime may be admissible as evidence if the High Court is satisfied that there are reasonable grounds for that belief. This allows for the admission of hearsay evidence, both the belief evidence of the member concerned and evidence relied on to establish reasonableness of that belief. It is not necessary that all of the evidence upon which the belief evidence is founded be formally placed on affidavit by the person providing the evidence to the Bureau. It is of course open to a respondent to challenge the belief evidence and the reasonableness of it in light of the material on which it is based.

18. Further, as the Bureau has pointed out, the material which the applicant complains is not on affidavit is generally either material which was not challenged in the course of the High Court hearing or material which is of limited relevance to the overall findings made by the High Court.

19. Insofar as the applicant and her partner wish to make a case that was not made before the High Court, it must be borne in mind that this is an application for an extension of time to bring an appeal against the decision of the High Court and, if such an extension were granted, it would not permit a rehearing of the original application before the High Court. The applicant was granted legal aid and was represented in the High Court hearing. Her partner was served with notice of the making of the section 2 order and, insofar as it was of relevance or concern to him, was entitled to apply to be made party to the proceedings. He could also have sworn an affidavit in support of the applicant’s position. He did not choose to do either of these things. The court has been led to understand that the applicant’s partner now wishes to make the case that he owned the motor vehicle which was registered in her name. This case was not made in the High Court. It is not open to the applicant or her partner to seek to re-run the High Court case on a different basis by the introduction of new evidence on the appeal which was available at the time of the High Court hearing but which they chose not to adduce.

20. In all of the circumstances there is simply no basis for contending that the applicant has arguable grounds of appeal.

21. Even though the applicant does not satisfy the Éire Continental criteria it is nonetheless necessary to consider whether, in the interests of justice, she should be allowed pursue a late appeal against this High Court decision. For a number of reasons, I am satisfied that she should not be so permitted. Firstly, under section 3(4) of the Proceeds of Crime Act it is open to the applicant at any time to seek an order discharging the section 3 order made by the High Court. Therefore, if there is a bona fide reason why the applicant contends that the section 3 order made in respect of the property which she is in possession or control should not continue in force, there is a legal mechanism readily available to her to bring the matter before the High Court.

22. Further, under section 4 of the 1996 Act a final order providing for the disposal of the property cannot be made for a period of 7 years from the date of the section 3 order and will require a further application to the court by the Bureau. That application will be made on notice to the applicant, inter alia, and it will be open to her to advance any argument or evidence she wishes as to why a disposal order should not be made. Notably, in the circumstances of this case the applicant has been permitted to reside in the property with her children for the duration of 7 years (i.e. the statutory period between the making of the section 3 order and the application for the section 4 order) and therefore she will not suffer any immediate detriment if the section 3 order remains in place.

23. Further, there is a general interest in the finality of litigation. Although such an interest would not preclude the granting of an extension of time in an appropriate case, this is a case in which the substantive issues have already been determined on appeal against, broadly speaking, the side of the case in which the applicant finds herself. Therefore, the issue of finality has an added weight in this case.

24. In all the circumstances, I am satisfied that this is not an appropriate case which to exercise the court’s jurisdiction in favour of the grant of an extension of time. It follows that the application for an extension of time will be refused.

25. Having heard this judgment delivered in open court, Meenan and Burns JJ. indicated their agreement with it and the order proposed.