Out-of-time Service of a Notice of Appeal: No Waiver by Alternative Relief, and No Extension Where the Appeal Depends on New, Fact-sensitive, Contradictory Grounds
1. Introduction
In Kirkpatrick & Anor v O'Boyle & Anor [2026] NICA 28 (Court of Appeal in Northern Ireland, Treacy LJ, McBride J and Humphreys J; judgment delivered by McBride J),
the court determined applications concerning the procedural validity of an appeal from an order of Huddleston J (24 November 2025) in property litigation arising from an order-for-sale process and a disputed “buy-back” arrangement.
The appellants sought to appeal findings that the respondents were the true and lawful owners of the property and to resist possession and damages for trespass. The respondents applied to strike out/dismiss the appeal as out of time (and, alternatively, as frivolous/vexatious/no reasonable cause of action, and for security for costs). The appellants cross-applied for an extension of time for service of the notice of appeal.
The central issues were: (i) whether the notice of appeal had been served within time; (ii) if not, whether time should be extended; and (iii) whether any out-of-time objection had been waived by the respondents taking “fresh steps” in the appeal.
2. Summary of the Judgment
- The notice of appeal was served out of time (served 27 January 2026; deadline 6 January 2026).
- The respondents had not waived the time point: bringing a notice of motion seeking strike-out for lateness (with sequential/alternative relief) and filing a skeleton argument addressing merits only insofar as required did not constitute “fresh steps” inconsistent with the objection.
- The court refused to extend time under Order 3 rule 5 applying the Davis criteria: no good explanation for the default; prejudice to respondents not adequately compensable; proposed appeal grounds largely new, contradictory to the case below, fact-sensitive, requiring new evidence and likely joinder; and no substantive point meriting indulgence.
- Result: the court granted the respondents’ application (strike out/dismissal on timeliness) and dismissed the appellants’ cross-application, with costs.
3. Analysis
3.1 Precedents Cited
The court relied on Magill to identify the operative procedural act: a notice of appeal does not require “issue” by the court prior to service, and service (not lodgment) effectively commences the appeal. Applying this, service on 27 January 2026 was decisive and late notwithstanding earlier lodgment.
Rein v Stein (1892) 66 LT 469
The court adopted Cave J’s test for waiver by “fresh steps”: a waiver requires a step “only necessary or only useful” if the objection has been waived or never entertained. This framed whether the respondents’ conduct was inconsistent with maintaining the timeliness objection.
the Assunta [1902] P 150
The court noted that, in principle, steps aimed at gaining an advantage (including an application for security for costs) can be “fresh steps”. However, it distinguished the present case because the respondents’ motion primarily sought strike-out for lateness and sought additional relief only sequentially and in the alternative.
Davis v Northern Ireland Carriers [1979] NI 19
Davis provided the core framework for extensions of time (Order 3 rule 5): seven non-exhaustive factors including the extent of default, explanation, prejudice/compensation by costs, whether merits have been heard or would be denied, substance and general significance of the point, and the importance of compliance with rules.
The court used Benson to emphasise that the Davis criteria are not rigid “hurdles”; the overarching inquiry is whether extending time best achieves justice in all the circumstances. Even so, the court’s “in the round” assessment confirmed no indulgence was justified here.
Singh v Dass guided the court’s evaluation of whether new points could properly be raised on appeal. It highlighted appellate caution, the bar where a new point requires fresh evidence or would have materially changed the trial, and the safeguards even for “pure points of law” (adequate time to respond, no detrimental reliance, and costs protection).
The court treated the proposed appeal grounds as mixed law-and-fact requiring new evidence and likely new parties (notably the Presbyterian Mutual Society), and as contradicting the case advanced at trial—making it highly unlikely the Court of Appeal would entertain them.
The court cited McDonald as authoritative on the limits of invoking Convention rights in private possession disputes: Article 8 cannot be used to re-write private contractual/property rights as between private citizens, and doing so could unpredictably interfere with the other party’s A1P1 rights.
3.2 Legal Reasoning
(a) Service out of time under Order 59 rule 4
Time ran from filing of the order (25 November 2025) and expired on 6 January 2026. Service occurred on 27 January 2026. The court treated the mode of service as uncontroversial; the defect was purely timeliness.
(b) No waiver of the time objection
The appellants argued the respondents waived the time point by (i) seeking security for costs and (ii) filing a detailed skeleton addressing merits. The court rejected this:
- The respondents’ first and only substantive procedural step was a notice of motion whose primary relief was strike-out/dismissal for lateness.
- Including other relief in the same motion did not waive the objection because it was sought sequentially/in the alternative, not on an assumption of a valid, properly constituted appeal.
- The skeleton argument did not accept timely service and engaged with merits only to the extent necessary to address the extension application, not as a free-standing submission on the appeal as properly before the court.
The practical takeaway is that a respondent can prudently plead alternative procedural remedies without losing a timeliness objection, provided their conduct is consistent with maintaining the objection.
(c) Refusal to extend time under Order 3 rule 5
Applying Davis (in a Benson “justice in the round” manner), the court found:
- Default: about three weeks—material though not extreme.
- No good explanation: the notice served was identical to that lodged; the cited vacation/instructions issues did not explain why service could not be effected within the rules. The default lay wholly with the appellants’ side.
- Prejudice not readily compensable: the respondents were deprived of use and enjoyment of their property while the appellants remained in occupation without rent; the court doubted the practicality of compensating this by mesne profits given concerns about compliance/means.
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No real “merits” injustice from refusing an extension because the intended appeal grounds were unlikely to be entertained:
- They were largely new and contradictory to the appellants’ pleaded and argued first-instance case (which had accepted respondents’ legal title and sought specific performance/beneficial relief).
- They were not pure points of law: the Financial Services and Markets Act 2000 arguments required factual inquiry into regulatory status, whether activities were regulated, and remedies; other grounds required evidence from the alleged signatory/solicitor and from adult children asserting overriding interests.
- They would likely require joinder of the Presbyterian Mutual Society and would have changed how the trial was run—squarely engaging Singh v Dass.
- Even if framed as legal points, the court considered the respondents could not be adequately protected in costs in light of concerns about the appellants’ ability to satisfy monetary orders.
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No point of substance: the court stressed that the relevant orders (including those made by Master Hardstaff in 2016 and 2019) were valid and binding until set aside; the appellants had not appealed them and would face acute difficulty doing so later, particularly given consent to the 2019 order.
The court also recorded the respondents’ position that they were bona fide purchasers for value, defeating prior equitable interests, and treated the ECHR-based point as foreclosed by McDonald.
- Rules must be observed: the extension was only sought after a strike-out application, reinforcing the lack of procedural diligence.
3.3 Impact
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Waiver discipline in appellate procedure: the decision provides practical guidance that seeking strike-out for lateness while also requesting alternative relief (including security for costs) is not, without more, a “fresh step” waiving the time objection—especially where the alternative relief is framed sequentially and does not assume a properly constituted appeal.
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Extensions of time and “new points” are tightly linked: where an appellant’s proposed appeal depends on new, evidence-heavy grounds that contradict the case below and would have required different evidence/parties, the court may treat an extension as futile and unjust, strengthening case management against procedural abuse.
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Finality of unappealed orders: the court’s insistence that prior court orders remain binding unless set aside underscores the barrier to collateral attacks on historic orders through later appellate reframing.
4. Complex Concepts Simplified
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Service vs lodgment (filing): filing a notice of appeal at court is not enough; the appeal is effectively commenced by formally giving it to (serving it on) the other side within the required time.
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Waiver by “fresh steps”: a party can lose a procedural objection (like “you served late”) if it behaves as if the case is properly in train—for example, taking steps useful only if the case is treated as valid. Here, a motion primarily seeking strike-out for lateness (even with alternative requests) was not inconsistent with maintaining the objection.
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Extension of time: courts can forgive lateness, but only if justice requires it. A weak excuse, real prejudice to the other side, and an appeal that is unlikely to be allowed to proceed (because it raises new fact-heavy issues) all weigh heavily against an extension.
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Raising new points on appeal: appellate courts generally do not allow parties to run a new case that would have changed the evidence at trial or requires new evidence/parties—especially where it contradicts what was argued below.
5. Conclusion
[2026] NICA 28 reinforces strict compliance with appellate time limits in Northern Ireland and clarifies that respondents do not necessarily waive an out-of-time objection by combining a strike-out request with alternative relief. It also illustrates that an extension of time is unlikely where the proposed appeal is built on new, contradictory, evidence-dependent grounds that would not be entertained under established principles governing new points on appeal. The judgment promotes procedural discipline, fairness to successful litigants awaiting finality, and the integrity of first-instance trials.