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2026 IECA 83

Approved No redaction required THE COURT OF APPEAL Record Number: 2022/4542P 2025/256 Neutral Citation Number [2026] IECA 83 Faherty J. Binchy J. Allen J. BETWEEN/ JOHN KILLEEN PLAINTIFF/ APPLICANT - AND – PETER HIGGINS TRADING AS REGAN MCENTEE AND PARTNERS SOLICITORS DEFENDANT/ RESPONDENT JUDGMENT (ex tempore) of Ms. Justice Faherty delivered on the 14th day of April 2026

  1. The applicant, Mr. Killeen, (who is the plaintiff in the within proceedings) seeks an extension of time within which to appeal an Order of the High Court (Barr J. hereafter “the Judge”) dated 13 November 2023, as perfected on 17 November
  3. By the terms of the said Order, the High Court ordered that an appearance to the within proceeding lodged by the defendant on 8 November 2023 be deemed valid, and that a copy of the appearance be sent to Mr. Killeen within 7 days of the Order. Mr. Killeen -2was awarded any costs or outlays he incurred in proceeding with the motion. This is the Order Mr. Killeen wishes to appeal, as evinced by the motion he now has before this Court, which issued almost two years after the Judge’s 13 November Order. Background
  4. The background to the present application is as follows: the proceedings were commenced by Plenary Summons dated 8 September
  5. By the General Indorsement of Claim, Mr. Killeen seeks damages for loss and damage said by him to have been sustained as a result of the alleged non-professional work and negligence of the defendant. In essence, as he says in his written submissions to this Court, Mr. Killeen claims that the defendant did not conduct High Court proceedings bearing record number 2006/777P (“the principal proceedings”) that he issued in 2006 with “due dedication and care” such that, he claims, the case was made statute barred by the defendant. It is common case that the 2006 proceedings were the subject of a notice of motion to dismiss brought by the opposing party by reason of inexcusable and inordinate delay. They were ultimately dismissed by order of the High Court (Simons J.) on 22 November 2022 (Killeen v. O’Sullivan) [2022] IEHC 625).
  6. On 7 September 2023, Mr. Killeen issued a notice of motion in the within proceedings seeking: “

(1)An Order for Judgment in default of Default of defence”
  1. An Order for Directions or such further Order as this Honourable Court Shall deem necessary”, together with an order for the plaintiff’s costs or outlay and expenses.
  2. Mr. Killeen’s motion was grounded on his affidavit sworn 7 September
  3. wherein he averred, inter alia, that the defendant had made “a quick escape” from the 2006/777P proceedings after advising Mr. Killeen that he should seek legal assistance. -
  4. The motion came on for hearing before Barr J. on 13 November
  5. As the High Court transcript shows, Mr. Killeen proceeded to move his application by seeking judgment against the defendant “in default for nonappearance for over 14 months”.
  6. The High Court was then advised by counsel for the defendant that the defendant had in fact filed an appearance in the Central Office the week previously (8 September 2023) and that it had also been sent to Mr. Killeen with a letter requesting that he file a statement of claim, following which the defendant would defend the claim.
  7. Counsel submitted to the Judge that the approach taken by the defendant was permissible under the Rules of the Superior Courts (“RSC”) even if the Judge were minded to amend Mr. Killeen’s motion to one seeking judgment in default of appearance, which, it was said, was all Mr. Killeen was entitled to seek when the motion issued. It was also said that the rules required Mr. Killeen to deliver a statement of claim prior to being granted judgment in default of appearance. In any event, the principal submission of counsel was that consequent on an appearance now having been filed, Mr. Killeen should deliver his statement of claim following which the defendant would enter a defence or bring whatever application he deemed fit.
  8. One of the arguments advanced on behalf of the defendant in the High Court was that the rules provided that if a defendant did not enter an appearance within the time set on the plenary summons, they could enter an appearance at any time until judgment is entered albeit, it was acknowledged, the rules provided that that did not reset the time limits for the delivery of any pleadings after that time.
  9. This argument did not find favour with the Judge who observed that a party could not wander into court having ignored the rules and then contend that they were entitled to put in an appearance at any time. -
  10. The explanation tendered by the defendant for not having filed an appearance was that the matter had been mis-filed in the office. It was accepted that two warning letters had been received from Mr. Killeen.
  11. At the end of the day, having discounted the defendant’s interpretation of the rules, and notwithstanding Mr. Killeen’s urgings that he should get judgment, the Judge deemed the appearance filed on 8 September 2023 valid, and directed that a copy be sent to Mr. Killeen within 7 days. He awarded Mr. Killeen any costs or outlays he may had incurred. As the High Court transcript shows, whilst not impressed with the tardiness of the defendant, in the Judge’s view, there was no reality in giving Mr. Killeen judgment having regard to the fundamental right of the parties to put their case before the trial judge which included, inter alia, the defendant’s right to have his defence heard.
  12. Thereafter, the Mr. Killeen delivered his statement of claim on 20 December
  14. No defence having been delivered by the defendant within the time provided for in RSC, Mr. Killeen issued a final warning letter on 16 February
  15. On 22 May 2024 he issued a notice of motion seeking judgment in default of defence.
  16. It appears, however, that by the time Mr. Killeen’s motion issued, a defence had been delivered by the defendant on 17 May
  18. Mr. Killeen’s motion for judgment in default of defence, and indeed a number of other motions came on for hearing before the High Court (Simons J.) on 6 October
  19. The other motions included a motion filed by the defendant on 29 October 2024 seeking the dismissal of Mr. Killeen’s proceedings on the basis that they were frivolous or vexatious, disclosed no reasonable cause of action and were bound to fail, and Mr. Killeen’s counter motion issued on 5 February 2025 seeking to strike out the defendant’s motion on the ground that the signature on the notice of motion was illegible and the return date incorrect. -
  20. All motions were the subject of a written judgment of Simons J. dated 4 November 2025 ([2025] IEHC 583) in which he refused the relief sought by the defendant, and likewise the reliefs sought by Mr. Killeen in his motions.
  21. By the time Simons J. delivered his judgment, Mr. Killeen had issued the within motion on 9 October 2025 in this Court whereby he seeks an extension of time in which to appeal Barr J.’s Order of 13 November
  23. In the course of his oral submissions in this Court, Mr. Killeen placed a lot of emphasis on what he said was advice he had received from Simons J. to appeal the 13 November 2023 Order. However, it is clear from para. 28 his judgment that, in fact, Simons J. expressly noted that Mr. Killeen had not filed an appeal against the 13 November 2023 Order.
  24. Returning now to Mr. Killeen’s application for an extension of time in which to appeal, in his affidavit sworn on 9 October 2025 grounding his application for an extension of time, Mr. Killeen avers at para. 6 that after a year of inactivity on the part of the defendant following service on him of the plenary summons via his partner, he (Mr. Killeen) served the defendant with “[a] formal 28-day notice to act” and notices of Mr. Killeen’s motions for default judgment. This, Mr. Killeen avers, was met with a letter from the defendant dated 28 September 2023 wherein he claimed to have “no recollection of ever being served with the Plenary Summons in this matter” and demanded that Mr. Killeen serve the summons again. At para. 7, Mr. Killeen describes the content of the letter as “malicious and mendacious” whose purpose he says was “to create a last-minute procedural dispute, deliberately mislead the Court, and frustrate the entry of a default judgment which [Mr. Killeen] had diligently sought”. He avers that the defendant ignored the court and Mr. Killeen and then sought to use his legal knowledge and position “at the eleventh hour to create confusion and further delays”. -
  25. Mr. Killeen goes on to aver that on 13 November 2023 when the Judge granted the defendant leave to defend, he (Mr. Killeen) was “too confused and overwhelmed” to effectively oppose what the defendant was seeking.
  26. At para. 10-12, he sets out his reasons for the delay in appealing the Order of Barr J. He says that he did not realise that it was necessary to file a formal appeal immediately believing that he could present evidence of the defendant’s alleged dishonesty at the trial of the action and that the trial judge would take it into account. On that basis, he says that he did not know that Barr J.’s procedural decision required an immediate separate appeal. He emphasises his lay litigant status and says that the only help he relies on comes from a McKenzie friend.
  27. As previously adverted to, at para. 11, he asserts that it was only during the main hearing on 6 October 2025 that Simons J., upon reviewing the circumstances of the case and the particular situation, “explicitly suggested” to him that he should file an appeal against Barr J.’s decision. Again, having regard to what was stated by Simons J. at para. 28 of his judgment, it is difficult to give credence to Mr. Killeen’s assertion.
  28. Mr. Killeen’s grounds of appeal, if he is granted an extension of time, are set out at para. 13 of his affidavit and are addressed further below. These intended grounds are largely replicated in his Draft Notice of Appeal.
  29. Before addressing the legal principles which pertain to an application to extend time in which to appeal, and the matters upon which Mr. Killeen relies for the purposes of his application, I consider it necessary to refer briefly to Mr. Killeen’s written submissions in aid of his application to extend the time to appeal the Judge’s Order. For the most part, the written submissions take issue with judgment delivered by Simons J. on 4 November
  30. However, neither that judgment nor the order made by Simons J. on foot of it is before this Court, either by way of any application, appeal or otherwise. The written submissions also -7take issue with the contents of the defendant’s defence in the within proceedings which is a matter more properly for the trial of the action and not for this Court, concerned as this Court is only with the question of whether Mr. Killeen meets the criteria set out in the case law for time to be extended for him to appeal the Order of Barr J. of 13 November
  32. Paras. 5 and 7 of his written submissions, however, in part at least, reference Mr. Killeen’s grounds of intended appeal.
  33. Before addressing the points made by Mr. Killeen (in his affidavit and in his written and oral submissions) in support of his application, it is apposite at this juncture to refer to the relevant case law governing applications for an extension of time in which to appeal.
  34. The 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] I.R. 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)
  1. He must establish that an arguable ground of appeal exists.” 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 the overriding consideration.
  2. The jurisprudence relating to an extension of time was more recently considered in Seniors Money Mortgages (Ireland) DAC v. Gately [2020] IESC
  3. O’Malley J. stated at paras 60 - 65 of her judgment: - -8“
  4. 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.’
  5. 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 Eire Continental criteria will meet those requirements in the vast majority of cases.’
  6. 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 -9attention 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.
  7. While bearing in mind, therefore, that the Eire 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.
  8. 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.
  9. 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.” Discussion and Decision - 10
  10. Applying the relevant case law to the application in hand, the first observation I would make is that Mr. Killeen evinced no intention to appeal Barr J.’s Order within the permitted time (the first limb of the Eire Continental test). Rather, as he himself says at para. 10 of his affidavit, he believed that he could present evidence of the defendant’s alleged dishonesty at the trial of the action. Furthermore, and more fundamentally, his actions in the aftermath of the Order belie any such intention as he delivered his statement of claim on 20 December 2023 (much in line with the exchange he had with the Judge at the conclusion of the hearing on 13 November 2023). I also note that Mr. Killeen went on to issue a final warning letter on 16 February 2024 and on 22 May 2024, he issued a notice of motion seeking judgment in default of defence, all of which indicate that his displeasure was not with the content of Barr J.’s Order but rather the tardiness of the defendant in delivering his defence.
  11. Mr. Killeen also does not meet the second Eire Continental criterion. He has not adverted to a mistake on his part such that the Court should exercise its discretion in his favour. Whilst he has adverted to his lack of access to professional legal assistance, as the defendant points out that does not withstand scrutiny in circumstances where Mr. Killeen has previously brought an appeal of an interlocutory order in related litigation before this Court, which, in my view, demonstrates that he was more than familiar with what was required if he wished to challenge a court order.
  12. I turn now to the question of whether Mr. Killeen has established any arguable grounds of appeal. At para. 13 of his affidavit he contends that he has “a strong and meritorious case” for an appeal for the following reasons: • Under the rubric “Abuse of Process and Bad Faith,” he asserts that the defendant engaged in a deliberate strategy of delay, remaining silent for - 11 almost a year despite the summons being received by the defendant’s partner which, it is said, “constitutes a clear abuse of process”. • Under the rubric “Error in the Exercise of Discretion”, he asserts that granting the defendant leave to defend after such “blatant and tactical delay, based on a deceptive last-minute claim that is directly contradicted by the proof of service”, constituted a fundamental error on the part of the Judge and “undermines the integrity of the judicial process” as it rewards bad faith. • He further asserts that the decision penalises a diligent party and rewards a party who has shown contempt for the court’s procedures, resulting in a denial to him of procedural justice and a right to a timely hearing. • He asserts that he has a genuine intention to appeal and that his motion is proof of his commitment to seeking justice. • He believes that a refusal to extend time would cause him significant and irreparable prejudice, preventing him from challenging a flawed decision. He asserts, that, on the other hand, the defendant, who was responsible for the initial delay, will suffer no real prejudice.
  13. In my view, none of the above constitute an arguable ground of appeal.
  14. First and foremost, albeit there was delay on the part of the defendant in filing his appearance, by the time of the hearing of the motion, the appearance had been filed. This was something the Judge was obliged to take account of given the provisions of Order 12, r. 13 RSC: “
  15. A defendant, save in actions for the recovery of land, may appear at any time before judgment. If he appears at any time after the time limited for appearance, he shall not, unless the Court shall otherwise order, be entitled to any further time for - 12 delivering his defence or for any other purpose than if he had appeared within the time limited for appearance.”
  16. Secondly, insofar as it is said that the defendant engaged in “blatant and tactical delay”, I note that Mr. Killeen waited almost two years before asserting the frailties that he now alleges attach to the 13 November Order and the claimed prejudice he says has been caused to him (and I will come back to the issue of prejudice). In my view, it is not open to Mr. Killeen, who, as I have already said, engaged fully in the proceedings in the aftermath of the 13 November 2023 Order by delivering his statement of claim and motioning the defendant to deliver a defence, to purport to raise, some two years or so after the event, an objection to the manner in which the Judge dealt with his 7 September 2023 motion.
  17. Thirdly, in asserting that what the Judge did was tantamount to rewarding a party who has not abided the court’s procedures, Mr. Killeen fails to appreciate that the Order made by the Judge was one entirely within the parameters of Order 12, r.
  19. In any event, the Judge was obliged to do justice between the parties. As he said, essentially, the order he proposed to make would achieve the fundamental right of both parties to put their case before the trial judge.
  20. In my view, nothing Mr. Killeen has advanced constitutes an arguable challenge to the 13 November 2023 Order.
  21. Even if it could be said the Judge erred in some technical regard, or indeed otherwise (which I find not to be the case), the words of O’Malley J. in Seniors Money Mortgages (Ireland) DAC v. Gately resonate here: “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 - 13 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.”
  22. In my view, Mr. Killeen’s intended grounds fall well short of counterbalancing the delay that has occurred here.
  23. Returning now to the issue of prejudice, Mr. Killeen asserts that he would be caused significant and irreparable prejudice if the time is not extended for him to appeal against the Judge’s 13 November 2023 Order. I do not find that to be the case and I fail to see how Mr. Killeen can reasonably believe that to be the case. Here, the proceedings are at a relatively advanced stage and so, the defendant’s motion to dismiss the proceedings having been refused by Simons J., Mr. Killeen will have his day in court.
  24. For all of the foregoing reasons, I would refuse the application to extend the time for an appeal. Binchy J.: I have listened carefully to the judgment just delivered by Ms. Justice Faherty and I am in full agreement with the judgment and the order she proposes to make. Allen J.: I too have listened carefully to the judgment of Ms. Justice Faherty, and I agree with my colleague’s reasoning and conclusion and the form of order proposed.

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