Judicial Guidance on Discretionary Relief: Extending Appeal Time and Striking Out Proceedings under O.38 and O.31 r.21

Introduction

Deegan v Campbell [2025] IEHC 240 is a High Court decision delivered by Ms Justice Marguerite Bolger on 22 April 2025. The plaintiff, Chloe Deegan, sought an extension of the ten-day time limit for appealing an order of the Deputy Master (dated 10 October 2023) which struck out her claim for failure to make full and proper discovery as ordered on 19 July 2021. The defendant, Darren Campbell, opposed the extension of time and defended the strike-out. The case raises two principal issues:

The circumstances in which the Court will exercise its discretion under Order 38 of the Rules of the Superior Courts to extend time for appealing procedural orders; and
The limited and exceptional circumstances in which proceedings may be struck out under Order 31, rule 21 for non-compliance with discovery obligations.

Summary of the Judgment

The High Court granted the plaintiff’s application to extend the time for appeal and, on the substantive appeal, set aside the Deputy Master’s strike-out order. On extension, the Court confirmed that Order 38 confers a broad judicial discretion, guided (but not fettered) by the three factors identified in Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170: (i) a bona fide intention to appeal within time, (ii) existence of a procedural “mistake,” and (iii) an arguable appeal. Despite the absence of an explicit averment as to when the intention to appeal was formed, the Court accepted evidence of an ex parte lodging attempt two days after the order as sufficient proof of timely intention.

On the substantive appeal under Order 31, rule 21, the Court reiterated that striking out for discovery failures is a “drastic remedy” reserved for wilful, malicious or culpable evasion. Guided by cases such as Mercantile Credit Co v Heelan [1998] 1 IR 81 and Green Pastures (Donegal) v Aurivo [2014] IEHC 209, the Court balanced the degree of default against the plaintiff’s right of access to justice, concluded that the discovery omissions were remediable, and refused to dismiss the action.

Analysis

Precedents Cited

Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170 – Established three guiding criteria for extensions of time under Order 38.
Seniors Money Mortgages (Ireland) DAC v Gately & McGovern (CoA, 2018) & Seniors Money Mortgages v Gately [2020] IESC 3 – Confirmed the non-mandatory nature of the Eire Continental factors and the residual discretion of the court.
Mercantile Credit Co v Heelan [1998] 1 IR 81 – Held that strike-out for failure of discovery requires “wilful default or negligence.”
Green Pastures (Donegal) v Aurivo Co-operative Society Ltd [2014] IEHC 209 – Identified the standard of “malicious determination to evade” discovery.
Go2CapeVerde Ltd v Paradise Beach [2014] IEHC 531 – Articulated the three-stage test for strike-out: (a) deliberate and malicious failure; (b) irremediable prejudice; (c) contrition/remediation.
McNulty v Governor and Co of Bank of Ireland [2021] IECA 182 – Emphasized that Rule 21 is remedial, not punitive, and default can be remedied for a fair trial.
Hurley v Valero Energy (Ireland) Ltd [2022] IEHC 651 – Balanced constitutional access and trial fairness in strike-out applications.
Phonographic Performance (Ireland) Ltd v Cody [1998] 4 IR 504 – Described striking-out as a “drastic remedy.”

Legal Reasoning

Extension of Time (Order 38)
The Court applied the three Eire Continental criteria flexibly. Although no direct averment established when the plaintiff first decided to appeal, the fact that senior counsel applied ex parte for leave to lodge an appeal two days after the order was taken as compelling proof of timely intention. The late filing itself evidenced a “mistake” in procedure, and the Court found a strong arguable appeal on the merits of the discovery strike-out. Balancing the defendant’s speculative prejudice against the plaintiff’s loss of access to justice, the discretion favored extension.

Substantive Appeal – Strike-Out for Discovery Failures (Order 31 r.21)
Order 31, rule 21 is discretionary, not mandatory. A party must demonstrate wilful or malicious default. Even where such default exists, the court must ask:

Is the failure deliberate or malicious?
Is there irremediable prejudice which cannot be cured by further discovery or costs orders?
Has the defaulting party shown contrition and a willingness to remedy?

The Court found that the plaintiff’s discovery omissions, though frustrating, were not of the gravity seen in cases where documents were destroyed. The solicitor had since secured the missing records, no cross-examination was sought, and the plaintiff’s constitutional right of access to courts weighed heavily against dismissal. The balance favored remediation over punishment.

Impact

This decision reinforces the broad discretionary scope of Order 38 and Order 31 r.21. Practitioners should:

Document clearly the formation of any intention to appeal within the ten-day window.
Ensure that procedural defaults—even mistakes by counsel—are promptly addressed by ex parte or other interim steps where feasible.
Recognize that striking out for discovery is reserved for the most egregious cases of wilful or malicious non-compliance and that courts will seek to preserve claims where fairness permits remedy.

Future litigants will cite Deegan v Campbell for the proposition that courts will examine the substantive justice of proceeding over technical procedural defaults, provided there is genuine intent and capacity to comply.

Complex Concepts Simplified

Order 38 RSC: Allows courts to extend time limits for appeals; guided by intention to appeal, mistake, and arguability—but ultimately a free discretion.
Order 31, rule 21: Permits strike-out of pleadings for failure to comply with discovery orders—but only for wilful, malicious, or culpable default that cannot be remedied and which causes irremediable prejudice.
Ex parte lodgment: A one-sided (without notice) application to preserve an appeal right, viewed as evidence of timely intent.
Remedial vs. punitive jurisdiction: Courts favor remedies (e.g., further discovery, costs sanctions) over punitive dismissal whenever justice can be done.

Conclusion

Deegan v Campbell constitutes a landmark clarification of judicial discretion under the Superior Courts Rules. It affirms that:

Procedural time limits are flexible where genuine intent and arguable grounds exist;
Counsel’s prompt, albeit imperfect, steps to preserve rights may satisfy strict time-limit rules;
Striking out for discovery failures remains an extreme remedy, reserved for deliberate refusal or concealment of documents;
The overarching principle is to secure a fair trial and uphold the constitutional right of access to justice.

This decision will serve as authoritative guidance for both litigants and courts when balancing procedural compliance against substantive fairness.