Clarifying Appeals from Interlocutory Orders: Leave and Timeliness under the Judicature (NI) Act 1978

1. Introduction

This commentary examines the Court of Appeal’s decision in Patterson & Anor v Rathfriland Farmers Co-Operative Society Ltd and Markethill Livestock and Farm Sales Ltd ([2025] NICA 20). The appellants, John Isaac Patterson (“first appellant”) and his brother James Barclay Patterson (“second appellant”), are sheep dealers who faced default judgments in two separate High Court actions brought by Rathfriland and Markethill for sums exceeding £79,000 and £144,000 respectively. Both appellants unsuccessfully applied to set aside those judgments under Order 13, rule 8 of the Rules of the Court of Judicature (“RCJ”) and then appealed to the High Court, only to have those appeals dismissed by Colton J on 7 November 2024. This judgment (No. 2) addresses three preliminary issues: (a) whether leave to appeal is required, (b) whether the appeals are in time, and (c) whether the correct parties are before the court.

2. Summary of the Judgment

The Court of Appeal, McCloskey LJ (delivering the judgment) and McAlinden J, held:

Both High Court orders dismissing the appellants’ applications to set aside default judgments are “interlocutory” under section 35(2)(g) of the Judicature (NI) Act 1978.
As interlocutory orders, appeals to the Court of Appeal require leave, which the appellants neither sought nor obtained, rendering the appeals invalid.
Even if leave were assumed, the notices of appeal were served outside the 21-day limit in Order 59, rule 4(1)(a) RCJ and no extension was sought, so the appeals are also invalid for being out of time.
No coherent issue was raised about the identity of the parties before the court.
Accordingly, the purported appeals are struck out, and the appellants must pay the respondents’ costs.

3. Analysis

3.1 Precedents Cited

Deman v Sunday News Papers [2019] NIQB 91 – Established the test for interlocutory versus final orders in default‐judgment applications under Order 13. Horner J applied section 35(2)(g) to require leave for interlocutory orders upheld by the High Court.
R (Curry) v National Insurance Commissioners (1974) NI 102 CA, Re Darley (1997) NI 384 CA, White v Brunton (1984) QB 570, Re McNamee & McDonnell (2011) NICA 40 – Valentine’s commentary on section 35(2)(g) cites these cases to define “final” orders as those that finally dispose of rights, and “interlocutory” orders as those leaving the action extant.
Salter R & Co v Ghosh [1971] 2 QB 597 – Lord Denning’s discussion of tests for finality: (a) the nature of the application (Lord Esher MR) and (b) the nature of the order as made (Lord Alverstone CJ). The Court of Appeal favors Lord Esher’s test in practice.
Standard Discount Co v Lagrange; Salaman v Warner [1891] 1 QB 734–735 and Bozson v Altrincham Urban District Council [1903] 1 KB 547 – Early authority on the final/interlocutory dichotomy, endorsing the “dispositive” nature of the order as the test for finality.

3.2 Legal Reasoning

The court’s reasoning unfolds in several steps:

Statutory Framework (Section 35 Judicature Act): Section 35(2)(g) bars appeals from interlocutory High Court orders without leave.
Nature of the Orders: The orders of Master Bell and Colton J dismissing applications to set aside default judgments were interlocutory because:
- If granted, they would have revived the High Court proceedings rather than finally disposing of the action.
- Applying Valentine’s test and precedents, they leave the litigation “live” and are therefore interlocutory.
Leave Requirement: Neither the High Court nor the Court of Appeal granted leave, making the appeals statutorily invalid.
Timeliness: Interlocutory appeals must be served within 21 days of filing (Order 59, rule 4(1)(a)). The Markethill appeal was 3 days late; Rathfriland, 15 days late. No extension was sought below or in the Court of Appeal (Order 59, rule 15; Order 3, rule 5).
Parties’ Identity: Although Colton J noted discrepancies in names and signatures, no coherent challenge to party identity was advanced, no fresh evidence was sought, and no respondents’ notice or transcript was filed. The issue falls away.

3.3 Impact

This decision clarifies crucial procedural points in Northern Ireland civil appeals:

It confirms that default‐judgment applications under Order 13 remain interlocutory if they do not finally dispose of the action, triggering the leave requirement in section 35(2)(g).
It underscores the strict application of RCJ time limits for interlocutory appeals and the need to apply for extensions promptly.
Future litigants must be vigilant about classifying orders properly and securing leave when required, or risk summary dismissal of appeals.
It illustrates the courts’ reluctance to entertain obfuscatory, voluminous papers that mask the fundamental issues.

4. Complex Concepts Simplified

Interlocutory Order: An order that does not finally determine the parties’ rights but leaves the underlying proceeding open. Examples include case-management rulings, applications to set aside judgments, and orders without a final adjudication on the merits.
Final Order: An order that conclusively decides the substantive rights of the parties in the action, leaving nothing further to be adjudicated (e.g., a final judgment on liability and damages).
Leave to Appeal: Permission required by statute or rule before an appeal can be pursued. Under section 35(2)(g) Judicature Act, interlocutory orders need leave from either the High Court or the Court of Appeal.
Default Judgment: A judgment entered against a party who fails to respond to a claim—often by not filing an appearance—entitling the claimant to a liquidated sum without a trial on the merits.

5. Conclusion

The Court of Appeal in Patterson & Anor v Rathfriland Farmers Co-Op and Markethill elucidated vital procedural rules for appeals in Northern Ireland:

Orders dismissing applications under Order 13, rule 8 are interlocutory if they do not finally decide the action. Such appeals require leave under section 35(2)(g).
Interlocutory appeals must be served within 21 days of the order’s filing date unless an extension is granted in advance.
No leave was obtained and the appellants were out of time; therefore, their appeals were invalid on both grounds.
Parties must clearly identify themselves and follow RCJ requirements for evidence and notices; failure to do so forfeits appellate rights.

This ruling reinforces procedural rigor in civil appellate practice, ensuring that interlocutory appeals are properly authorized and timely filed before the Court of Appeal will entertain them.