Neutral Citation No: [2012] NICA 49	Ref:     	MOR8647	
			
Judgment: approved by the Court for handing down	Delivered:	19/11/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN:
ROBERT SHAW AND DEIDRE SHAW
Applicants
-and-
JAMES J MACAULAY SOLICITORS
Respondents
________
Before: Morgan LCJ, Higgins LJ and Coghlin LJ
________
MORGAN LCJ
[1]	This is an application for leave to appeal from a decision of Deeny J on 1 March 2012 when he dismissed the applicants’ appeal against the order of Master Kelly made on 16 December 2011 dismissing an application to set aside a statutory demand and giving the respondents leave to proceed to petition for bankruptcy. Deeny J refused leave to appeal on the same date.  By virtue of Order 59 Rule 14 the applicants were required to renew their application for leave to appeal within seven days of the refusal by the lower court. Order 59 Rule 4(1)(b) requires that a notice of appeal in relation to a decision made under the Insolvency Order must be lodged within 28 days.  The applicants purported to lodge a notice of appeal on 12 April 2012 which on any view is outside both time limits.  The applicants, therefore, require an extension of time in relation to both applications before they can proceed.

Background

[2] 	On 14 May 2007 Lawrence Patterson who is a neighbour of the applicants obtained an ex parte injunction preventing the applicants from placing any obstacles, constructing any walls or otherwise interfering with Mr Patterson's enjoyment over a portion of land over which he claimed a right-of-way leading from his dwelling to the County road.  The Order recorded that the judge had read the affidavit of Peter Hill and the report of Wayne Story Associates dated May 2007.  The Order also recorded that the right-of-way was coloured red on the map annexed to the order.

[3]	This right-of-way had been the subject of previous litigation.  Mr Patterson's predecessor in title Elizabeth Meadows had taken proceedings against Mr McConnell who was the then owner of the site on which the applicants have now built their home.  By a consent Order made in the County Court division for South Down on 10 October 1998 Ms Meadows established a right of way both with vehicle and on foot at all times for all purposes over that portion of land leading from her dwelling to the County road and which was coloured red on the map attached to the Civil Bill.  It is common case that the map attached to the civil Bill was a copy ordnance survey map on which was marked in a red line diagrammatically the route from the County road to the property then occupied by Ms Meadows.

[4] 	The litigation leading to the ex parte injunction on 14 May 2007 was apparently prompted by work carried out by or on behalf of the applicants preparatory to the construction of a wall. It was contended on behalf of Mr Patterson that this encroached onto the right-of-way and two maps were attached to the Wayne Story Associates report purporting to demonstrate the encroachment.  In the course of this application it was asserted by the applicants that the judge could not have concluded that there was any encroachment if the 1988 map had been available to her.  In fact that map being diagrammatic does not purport to establish the precise dimensions or extent of the right-of-way.

[5] 	In 1997 the right-of-way had again been the subject of litigation.  This arose from a claim by Mr Patterson that Mr McConnell had placed flowerpots at the corner of the laneway as a result of which Mr Patterson's vehicles could not negotiate it.  The matter was resolved by agreement and the agreement and the map attached were made an order of the court.  The applicants claim that this map was at some stage, early in the proceedings, substituted for the 1988 map and then formed the basis of a report by engineers instructed on behalf of the applicants and Mr Patterson in about June 2007.  The applicants claim that the use of the wrong map prejudiced their position.

[6] 	The 2007 proceedings came on initially before District Judge Brownlie.  She decided to recuse herself in the course of the hearing.  The applicants were still represented by the respondents at this stage but their services were dispensed with shortly thereafter.  The case came on for a full hearing before Judge Mc Reynolds in May 2008.  She heard the matter over four days and subsequently carried out a site inspection.  She delivered a corrected judgment in January 2009.  She found that the placement of the foundations by the applicants was in excess of the action which they were at liberty to take.  She found as a fact that the applicants’ original intention was to build something considerably more substantial than that for which detailed plans were ultimately produced at the hearing.  She considered that it was appropriate and proportionate to grant the interim injunction and then granted a full injunction restraining the defendants from constructing a wall which interfered with reasonable vehicular use of the laneway which she then defined.  She awarded the applicants £150 damages on their counterclaim.

[7] 	The applicants appealed this decision and their appeal was struck out on 15 March 2010.  The principal issue which the applicants wished to pursue was the fact that the wrong map had been used for the purpose of the interlocutory proceedings. Deeny J, who struck out the proceedings, noted that the learned County Court judge had correctly recognised that the starting point was the 1988 Order and had proceeded to make a determination of the extent of the right-of-way flowing from that Order.  The 1988 map was diagrammatic and showed the general positioning of the right of way but this case was concerned with the detail of whether there had been interference.  The applicant subsequently sought to reopen the May 2008 hearing but this attempt was dismissed on 4 May 2011.

[8] 	On 11 March 2010 the respondents issued proceedings in respect of the costs to which they were entitled for representing the applicants in 2007 together with the expenses that they had incurred.  Before that case came on for hearing the applicants issued a writ of summons on 29 June 2010 claiming damages for vexation, inconvenience, distress, upset, loss, slandering our name, failing in the duty of care to us, false representation, aiding and abetting in perverting the course of justice against the respondents.  On 13 August 2010 the applicants issued a further writ against Mr Patterson essentially on the grounds of defamation, fraud and collusion.  Both of these claims were dismissed by McCloskey J on 7 June 2011 because they failed to disclose any reasonable cause of action, were vexatious and constituted a misuse of the process of the High Court.  Neither of those decisions was appealed. On 28 September 2011 the County Court made an Order against the applicants in the sum of £3428.33 for costs, £598.66 for VAT and interest of £646.95 on the claim for costs and expenses.  There was no appeal of that Order.  At the hearing before us the applicants complained that they had not been allowed to raise the issue of the respondent’s lack of service but that issue had already been determined in the proceedings in which judgment had been given by McCloskey J.  The decree on 28 September 2011 then became the basis for the statutory demand.

Consideration

[9] 	The burden of proving that the statutory demand should be set aside is on the applicants (see Moore v  The Commissioners of Inland Revenue [2002] NI 26).  There must be some substantial or genuine grounds of dispute (see Allen v Burke Construction Ltd [2011] NIJB 62).  The applicant seeks to establish that the respondents are not entitled to their costs because of the defective service which they provided.  The applicant has also maintained that the respondents fraudulently altered the maps attached to the original interlocutory order as a result of which they were prejudiced in the proceedings.  All of these matters were contained in the proceedings struck out by McCloskey J on 7 June 2011 and it follows, therefore, that the applicants were seeking to go behind the dismissal of these claims.  Although the applicants had a right to appeal that dismissal they did not do so.

[10] 	There is considerable debate about the circumstances in which it is permissible to go behind a judgement in order to resist a statutory demand but it is not necessary for us to resolve that issue in these proceedings.  Having given careful consideration to both the written and oral submissions made by the applicants it seems to us clear that the core of the case which they seek to make is that if the respondents had not removed the 1988 map at the interlocutory stage there would have been no proceedings for them to answer.  The action alleging misbehaviour on the part of the respondents has already been dismissed but in any event we are entirely satisfied that the 1988 map, being diagrammatic, did not determine the extent of the right-of-way in the manner in which the applicants contend.  We do not accept, therefore, that the presence or otherwise of the 1988 map could have given rise to any defence in relation to the issues in the right-of-way litigation in 2008 nor any claim for damages in favour of the applicants nor do we accept that its presence or omission was material to the entitlement of the respondents to the costs which they incurred in the defence of the claim on behalf of the applicants.

[11] 	The first question for us is whether the time to apply for leave to appeal should be extended.  The principles are set out in Davis v Northern Ireland Carriers [1979] NI 19.

“Where a time limit is imposed by statue it cannot be extended unless that or another statute contains a dispensing power. Where the time is imposed by rules of court which embody a dispensing power such as is that found in Order 64 rule 7 the court must exercise its discretion in each case and for that purpose the relevant principles are –

(1) 	whether the time is sped: a court will, where the reason is a good one, look more favourably on an application made before the time is up;

(2) 	when the time-limit has expired, the extent to which the party applying is in default;

(3) 	the effect on the opposite party of granting the application and, in particular, whether he can be compensated by costs;

(4) 	whether a hearing of the merits has taken place or would be denied by refusing an extension;

(5) 	whether there is a point of substance (which in effect means a legal point of substance when dealing with cases stated) which could not otherwise be put forward; and

(6) 	whether the point is of general and not merely particular, significance.

To these I add the important principle;

(7) 	that the rules of court are there to be observed.” 

[12] 	In this case the application to apply for leave is made out of time.  The extensive history of this litigation shows that the applicants have pursued every possible avenue but failed.  Although we recognise that the applicants have found it difficult to accept those outcomes we are satisfied having reviewed the history that there is no merit in the contentions advanced on their behalf.

[13]	In those circumstances we must refuse leave to appeal.