Execution of Orders II

 

Cases

National Land Bank, Ltd. v Francis O’Dea

High Court of Justice.

11 March 1926

[1926] 60 I.L.T.R 55
O’Byrne J.

March 11, 1926

 

The plaintiffs had obtained judgment for £1,052 13s. 8d., money lent and interest thereon, against the defendant, who, in consideration of that loan, had deposited certain stock and share certificates as security with plaintiffs. Plaintiffs, after judgment, obtained a charging order under O. 46, r. 1, upon those securities; but when the Order came to be drawn up, the Registrar pointed out that the established practice of the Court had for many years been to decline to charge the stock or shares of a company registered in England, and plaintiffs, conceiving that they had sufficient security in the shares of companies registered in Saorstát Eireann, consented to the order being drawn up without any reference to £100 stock of Arthur Guinness, Son & Co., Ltd., a company registered in England, though a certificate of that stock was included in the securities deposited with them as aforesaid.

Gavan Duffy now moved ex parte for leave to have the said stock included in the charging order, plaintiffs having ascertained that they were not adequately secured by the shares already charged. He referred to the terms of O. 46, r. 1; the Companies (Consolidation) Act, 1908, s. 274, and the External Companies Adaptation Order, 1923 ( Iris Oifigiúil, 1923, p. 526). Counsel submitted that this Order was designed to render companies registered outside the jurisdiction, but doing business here, fully amenable to the jurisdiction of the Courts under the new régime; it was unnecessary for the purpose of obtaining a charging order that plaintiffs should adduce evidence to show that the particular company concerned had complied with the formalities prescribed under penalty by s. 274 of the Act of 1908, a fact which the Court would assume.

O’Byrne, J., granted the application

James Hogg, Sons & Co., Ltd. v McClughin

High Court of Justice.

King’s Bench Division.

18 November 1920

[1920] 54 I.L.T.R 192
Pim J.

Nov. 18, 1920

 

Application for charging order against fund in Court. The plaintiffs obtained a judgment against defendant for £30 13s 7d., including costs. They subsequently obtained a garnishee order on foot of this judgment against a sum of £200 alleged to be due to the defendant by one Barrett for the sale to Barrett of certain premises the property of the defendant. The garnishee order directed Barrett to show cause why he should not pay to the plaintiffs so much of the £200 as should be sufficient to satisfy the amount of the plaintiffs’ judgment. Barrett filed an affidavit to show cause in which he alleged that the defendant had instituted proceedings against him to recover the £200, but that he (Barrett) had a defence to the action on the ground that he had been induced to agree to the purchase of the defendant’s premises by the fraud of the defendant. The garnishee motion was then allowed to stand out of the list generally, pending the determination of the matters in dispute between the defendant and Barrett. Subsequently Barrett filed a defence to the defendant’s action against him, and brought the sum of £50 into Court while denying liability. The plaintiffs now sought to obtain a charging order against this sum.

Megaw, for the plaintiffs, referred to Order XLVI., Rule 1; Fahey v. Tobin, [1901] 1 I. R. 511.

Pim, J.

The case to which I have been referred was different to the present one, because there the party against whom the order was made had undoubtedly an interest in the fund in Court. It is true that in this case the defendant has the option of accepting the money which Barrett has paid into Court, but the question of his “interest” in the money is not so clear, and I do not think the point has arisen before. I will make an order charging the interest of the defendant “if any” in the money in Court.

Foley v. Bowden & Anor

[2003] IESC 38 (23 June 2003 Keane CJ

 

Order 42, Rule 36, of the Rules of the Superior Courts provides that

 

“When a judgment or order is for the recovery or payment of money, the party entitled to enforce it may apply to the court for an order that the debtor liable under such judgment or order, or in a case of a corporation that any officer thereof, or that any other person be orally examined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order, before a judge or an officer of the court as the court shall appoint; and the court may make an order for the attendance and the examination of such debtor, or of any other person, and for the production of any books or documents.”

The finding by the learned High Court judge that the granting of an order under this rule to the plaintiff would not necessarily have the result of disclosing the location or new identity of the defendant in contravention of the provisions of S.40 of the 1999 Act was not challenged on behalf of the Commissioner in the appeal to this court. The plaintiff’s application does, however, give rise to an initial difficulty, having regard to his understandable inability to adduce any evidence in the High Court as to whether there are indeed any sums owing by the State to the defendant under the witness protection scheme.

 

It is true that Rule 36 provides that the debtor or “any other person” may be orally examined as to “whether any and what debts are owing to the debtor” and that in Patterson –v- Doyle [1878] 4LR Ir 33, the court made such an order, although the judgment creditor did not depose to his belief that any such debts were owing.

 

That, however, was not a case where, as here, the order was sought against a person other than the judgment debtor.

 

The fact remains that there is no indication in the rule that there is any obligation on the judgment creditor to satisfy the court that the judgment debtor is in fact owed any sum by the person against whom it is hoped to obtain an order of garnishee. Moreover, in this case, the Commissioner, for understandable reasons, has declined to file any affidavit in response to the grounding affidavit of the plaintiff’s solicitor and one has to proceed on the assumption that there is at least a possibility that there may be sums which could be the subject of an order of garnishee.

 

The plaintiff, accordingly, in my view, reaches the relatively low threshold which appears to be fixed for the making of an order under the rule. The issue then arises as to whether, for the reasons set out by the learned High Court judge, the order should be refused because it might imperil the effective operation of the witness protection scheme. That scheme has certainly been afforded a form of implied statutory recognition under the provisions to which I have already referred. Moreover, while it can hardly be said that there is a defined and recognised public policy of maintaining in existence schemes of this nature, it was undoubtedly within the competence of the executive and the legislature to adopt such a scheme, provided the constitutional rights of any persons affected were observed. Moreover, it must be assumed in favour of the legislature and the executive that the scheme was adopted in order to assist in the prosecution of serious crime and it is, of course, beyond argument that the achievement of that objective is in the public interest.

 

If it were the case that requiring the Commissioner, or whoever the appropriate officer may be, to attend before the High Court for the purpose of being orally examined as to any sums which may be owing to the judgment debtor under that scheme and producing any documents relevant thereto of itself would imperil the successful implementation of the scheme in the future, I would agree with the conclusion of the learned High Court judge that the order should not be granted. It is not clear, however, that that would necessarily be the case. It does not follow that, because the relevant documents will be available at the hearing in the High Court, they must, in every instance, be produced for the inspection of the plaintiff or his legal advisors. On the contrary, if the officer objects to the production of any document on the grounds that its disclosure would not be in the public interest, the judge before whom the examination is being held can rule on the validity of that objection and, if necessary, can inspect the document himself or herself without its being furnished for inspection to anyone else. It may be that such an inspection may not be necessary and the very nature of the document may be such that the judge will be able to rule that its production would not be in the public interest and that the public interest in question is not outweighed by any legitimate interest of the plaintiff. Similarly, there should be no essential difficulty in the examination being conducted in a manner which does not disclose either the new identity or the new location of the defendant.

 

Given the constitutional right of the plaintiff to have access to the courts and to be in a position, so far as the law can enable him so to do, to execute any judgment he has obtained, I am satisfied that he should at least be given the opportunity of having such an oral examination of the relevant officer. Indeed, Mr. George Bermingham SC, on behalf of the Commissioner, fairly conceded that it was the wide ranging nature of the relief apparently being sought which was the substantial ground of objection so far as his client was concerned.

We were referred during the course of the argument to cases which have been decided in the United States courts as to the possible conflict between the operation of a witness protection scheme and the constitutional rights of other persons (Melo – Tone Pending Inc., -v- United States of America [1981] US App. Lexis 15472; Franz –v- USA (229 US App. DC. 396). In that jurisdiction, legislation has provided in detail for the establishment of witness protection schemes and the decisions in question consider the extent to which such schemes when, established by legislation, may legitimately interfere with constitutional rights of other citizens such as rights of access to children and rights of property. The issues, accordingly, with which they were concerned, are more far reaching than those under consideration in the present case and, accordingly, I do not find it necessary to consider them in any detail.

 

I would allow the appeal and substitute for the order of the High Court an order directing the Commissioner or such person as he may nominate to be orally examined in order to ascertain what debts (if any) are owed by the State to the defendant.

 

 

 

Goodman v. Minister for Finance

[1999] IEHC 197; [1999] 3 IR 356 (8th October, 1999) Laffoy J

27. In my view, the proposition that an order for costs made by a Tribunal of Inquiry can have the same effect, to the extent of carrying interest at the Court rate, as an order of this Court cannot be correct. The nature of a Tribunal of Inquiry established under the Acts of 1921 and 1979 and the nature of its functions were considered by the Supreme Court in judicial review proceedings initiated by the Plaintiffs in 1991 challenging the validity of the resolutions of Dail and Seanad Eireann setting up the Beef Tribunal having regard to the provisions of the Constitution. What emerges from the judgments of the Supreme Court in Goodman International -v- Mr. Justice Hamilton [1992] 2 I.R. 542 is that a Tribunal of Inquiry is not a court and its functions do not involve the administration of justice. The following passage from the judgment of Hederman J. at page 601 encapsulates the reasoning of the Supreme Court:-

 

 

“All this Tribunal can do is to investigate, make findings and report these findings to the Minister.

 

Reference was made to certain sections of the Act of 1979 as indicating that this Tribunal was administering justice. In particular, reference was made to section 4…

1

Reference was also made to s.6 which gives the Tribunal power to order that the costs of a person appearing before the Tribunal should be paid by someone else appearing before the Tribunal. It is clear that these amendments to the Act of 1921 are to give tribunals set up under the relevant legislation further efficacy. For example, in the past it was regarded as anomalous that the most a tribunal of inquiry could do was to “recommend” to the Attorney General that certain costs should be paid out of public funds. Section 4 does no more than to increase the efficiency of tribunals. Many administrative tribunals, as well as an inquiry such as this Tribunal, are clothed with what history has shown are efficacious powers when exercised in the courts. The fact that powers similar to those exercised by the High Court are conferred on a particular administrative tribunal or tribunal of inquiry does not constitute such bodies courts.”

 

28. The position of a Tribunal in relation to awarding costs before the enactment of section 6 of the 1979 Act, which was alluded to in the foregoing passage from the judgment of Hederman J., was considered in this Court in an unreported judgment delivered by Gannon J. on 15th July, 1977 in K Security & Another -v- Ireland and the Attorney General. The claim in those proceedings arose out of the so called “Seven Days” Tribunal. The plaintiffs, who had been authorised by the Tribunal to be represented by a solicitor and counsel, claimed a declaration that their costs in respect of their representation should be paid out of public funds. In his judgment Gannon J. at page 8 stated as follows:-

 

 

“There is nothing in the 1921 Act which states or implies that a Tribunal to which the Act may be applied has or should have any power or authority over any costs by whomsoever incurred in its proceedings. The fact that a Tribunal to which the Act may be applied is empowered by the Act to authorise interested parties to be represented before it is no basis for implying that the Act confers authority on such a Tribunal to award the costs of such representation to those parties at the expense of or as a charge upon public funds.”

 

29. Later in his judgment Gannon J. dealt with the manner in which an enactment may provide for payment of money out of public funds and stated at page 9:-

 

 

“The very nature of the functions of the legislature in relation to the control and disposition of public funds is such that any statutory authority for payment out of or a charge upon public funds must be clearly expressed and cannot be a matter merely of implication as contended for on behalf of the second named plaintiff.”

 

30. It may be that the enactment of section 6 of the Act of 1979 was a reaction to that decision. In any event, the significance of the decision is that, save and in so far as the Act of 1979 empowers it to make an order for costs, a Tribunal established under the Acts of 1921 and 1979 has no power to award costs or other monies to a party represented before it. Moreover, such a Tribunal is only empowered to direct payment by the Minister for Finance, pursuant to an order made under Section 6, out of monies provided by the Oireachtas to the extent that is clearly so expressed in the Act of 1979.

 

31. In essence, the Plaintiffs’ case is that by the combined operation of sections 4 and 6 of the Act of 1979 the Tribunal was empowered not only to order that the costs of the Plaintiffs be paid out of monies provided by the Oireachtas, but also to extend the provisions of sections 26 and 27 of the Act of 1840, which allow for interest on an award of costs, and also the mechanisms provided in the Rules, which allow for execution for costs and interest without further order, to the Plaintiffs. It is also the Plaintiffs’ case that the Tribunal exercised those powers. I did not understand the Plaintiffs to contend that section 6 on its own empowered the Tribunal to make an order for costs, which would carry an entitlement to interest. The issue is whether the powers conferred on the Tribunal by section 4 amplified the Tribunal’s power in relation to the award of costs in the manner contended for. In my view, it did not do so on any construction of section 4.

 

32. First, on a literal interpretation of section 4, a Tribunal is limited to making orders which it considers ” necessary for the purposes of its functions “. The type of order which might be ” necessary for the purposes of its functions ” and which a Tribunal is authorised to make under section 4 was considered by McCarthy J. in his judgment in Goodman International -v- Mr. Justice Hamilton where he stated at page 605:-

 

 

“Section 4 authorises a tribunal to make such orders as it considers necessary ‘for the purposes of its functions’. The purposes of its functions are to carry out the remit of Parliament. This may involve the issuing of witness summonses in accordance with s.1, [sub-s.1] of the Act of 1921, inspection of particular places, the taking of a shorthand note, arrangements for sittings, the printing of its report and so on.”

 

33. Making provision for interest on costs ordered to be paid to a party represented before the Tribunal or for rendering the order for costs self executing are not matters which are necessary for the purposes of the investigative, fact finding and reporting remit of a Tribunal. Moreover, in my view, such acts cannot be regarded as coming within the expression in section 4 ‘ such powers, rights and privileges as are vested in the High Court or a judge of that Court ‘. That an order for costs made in the High Court carries interest from the date of the order is a matter of substantive law: sections 26 and 27 of the Act of 1840. That an order for costs and interest is self-executing is attributable to Order 42, rule 15, of the Rules. Neither consequence is attributable to any power, right or privilege enjoyed by a Judge of the High Court in respect of the making of an order.

 

34. Secondly, the construction of section 4 contended for by the Plaintiffs would render Section 6, sub-section (1) superfluous. Similarly, the provisions of Section 3 of the Act of 1979, which address and provide a sanction for disobeying summonses and orders of a Tribunal and acts and omissions which would amount to a contempt of court, would be superfluous. Such a construction can hardly have been intended by the legislature.

 

35. Thirdly, a construction of section 4 which would allow for a Tribunal making an order for costs which was self-executing would be at variance with section 6(2), which expressly provides that the manner of recovery of costs payable pursuant to an order made under section 6 is as a simple contract debt in a court of competent jurisdiction. Moreover, and more fundamentally, a construction of section 4 which allowed a Tribunal established under the Acts of 1921 and 1979 to make an order for costs which was self-executing would be open to the challenge of invalidity having regard to the provisions of the Constitution. One of the indicia of the administration of justice is that a court order for costs is self-executing. A power analogous to the power of a Tribunal under section 6(1) of the Act of 1979 to order that the costs of a person appearing before it be paid by another person, is the power of the Registrar of Friendly Societies, under section 13(3) of the Industrial and Provident Societies (Amendment) Act, 1978, to direct that all expenses of and incidental to an investigation under that section shall be defrayed out of the funds of the Society under investigation or by the members or former members or officers of the Society in such proportions as he shall direct. That power was considered by the Supreme Court in The State (Plunkett) -v- The Registrar of Friendly Societies [1998] 4 I.R. 1. Having set out the five characteristic features of the administration of justice identified by Kenny J. in McDonald -v- Bord na gCon [1965]) I.R. 217, O’Flaherty J., delivering the judgment of the Court, stated as follows at page 5-6:-

 

 

“The court is of the opinion that none of the five tests have been satisfied in this case; certainly, as regards the first, there is no dispute or controversy as to the existence of legal rights or violation of the law. The Registrar has pointed to a possible dereliction of duties and responsibilities and has given the applicants an opportunity to respond. Further, and this encompasses the fourth test in McDonald, as pointed out by the learned High Court Judge, the decision of the Registrar – if he comes to reach a decision – does not amount to the imposition of a penalty or the final determination of legal rights and liabilities. That matter is reserved to the court. The applicants have argued that the order is analogous to an order for costs made at the conclusion of legal proceedings. But this is not so. A court order for costs is self-executing. Any order of the Registrar is not.”

 

36. On the same reasoning, an order under section 6 (1) or any other provision of the Act of 1979 is not and cannot be self-executing. The person who is entitled to the benefit of such an order must institute proceedings in a court of competent jurisdiction to enforce it, as provided for in section 6 (2). A Tribunal is not a court and it is not involved in the administration of justice. That being the case, it cannot have been the intention of the legislature that, by virtue of section 4, it should have power to render an order made under section 6 (1) self-executing.

 

37. On the proper construction of the Act of 1979, in my view, the only power which the Tribunal has to award costs to a party appearing before it, is the power contained in section 6. A Tribunal has no power or authority by virtue of section 4 to make an order for costs which is more ample or more easy of execution than is provided for in section 6. On its proper construction section 6 empowers a Tribunal to order that the costs of a party appearing before it, as taxed by the Taxing Master, shall be paid by another person. The Tribunal has no power to order that the costs so ordered to be paid should carry interest for any period. The only manner in which such an order can be enforced is by initiating proceedings for recovery of the sum in question as a simple contract debt in a court of competent jurisdiction. If the order is made against the Minister for Finance, the sum payable, which is limited to costs and not interest on the costs, is payable out of the Exchequer. If the legislature had intended that an order for costs made against the Minister for Finance would carry interest, it would have had to expressly provide for the payment of costs together with interest in section 6. It did not do so.

 

38. Turning to the construction of the Orders of the Tribunal; in my view, on their proper construction, the Tribunal did not purport to incorporate in them, or apply to the Orders thereby made, the provisions of sections 26 and 27 of the Act of 1840 or the provisions of the Rules in relation to the execution of Orders for costs. The Tribunal did no more than it was permitted to do by section 6(1). It directed the taxed costs of the Plaintiffs to be paid by the Defendant. It directed the basis on which the costs were to be taxed, for example in the case of the first named Plaintiff, limited to the costs employing of a solicitor and two Counsel taxed on a party and party basis and subject to the other limitations specified. It applied the statutory provisions and the Rules of the Superior Courts relating to the taxation of costs in an action in the High Court (including provisions relating to review and appeal) ” in so far as is practicable” to the taxation. In doing so, the Tribunal did no more than state the obvious. The power which the Tribunal had by virtue of section 6(1) was to order the payment of costs ” as taxed by a Taxing Master of the High Court “. The Taxing Master of the High Court taxes costs in accordance with the relevant statutory provisions and the Rules, which at the time the Orders in question here were made were the relevant provisions of the Courts (Supplemental Provisions) Act, 1961 and Order 99 of the Rules. Order 99 was incorporated in so far as was practicable. As a matter of construction, it was clearly not intended that Order 99, rule 37 (34) would be incorporated because that provision is at variance with section 6(2,) which provides the only manner of enforcement of the Orders for costs made by the Tribunal. It was suggested that, if the Tribunal had not expressly referred to the provisions in Order 99 in relation to review and appeal, these provisions would not have been incorporated in the Order. That suggestion is not correct. The Orders, the benefit of which the Plaintiffs obtained by virtue of the exercise by the Tribunal of its power under section 6(1), were orders for payment of costs as taxed by the Taxing Master; in other words, for payment of the sums appearing in the final certificates of the Taxing Master. If a party to a taxation seeks a review under Order 99, rule 38(1), a final certificate does not issue until after the Taxing Master decides on the objections. Where the taxation is reviewed by this Court under Order 99, rule 38(3), after the determination by the court the matter is remitted to the Taxing Master to complete the taxation in accordance with the decision of the court and to issue the final certificate of taxation as provided in rule 38(6). The Orders made by the Tribunal in the instant case conform with Section 6(1) in that they allow for taxation up to the issue of the final certificate of taxation, which will evidence the quantum of costs to which the Plaintiffs are entitled.

 

39. In applying the statutory provisions and the rules ” relating to taxation of costs ” to the costs ordered to be paid to the Plaintiffs, the Tribunal did not purport to apply the provisions of the Act of 1840 or of Order 42 to the award of costs. If the Tribunal had purported so to do, it would have been acting ultra vires. However, as a matter of construction of the Orders it did not do so. As I have already stated, the provisions of the Act of 1840, as amended by the Act of 1981, are provisions of substantive law which determine when, for how long and at what rate a court judgment for money carries interest. They are not provisions relating to taxation of costs. They apply to an order for costs, whether the costs are measured by the Court or quantified by agreement or on taxation. The provisions of Order 42 in relation to execution relate to the manner of execution of all money judgments. They are not provisions relating to the taxation of costs. In the case of an order for costs which is the subject of taxation, the taxation is completed by the issue of a final certificate of taxation.

 

40. The effect of the Orders made by the Tribunal is to entitle the Plaintiffs to recover the sums which appear on interim and final certificates of taxation issued by the Taxing Master from the Minister for Finance, if necessary by suing in debt in this Court. They do not entitle the Plaintiffs to any interest on the sums in question prior to the date of the issue of interim or final certificates of taxation as the case may be. They do not entitle the Plaintiffs to recover the sums due in any manner other than by suing in debt.

 

41. The Orders do not have the effect contended for by the Plaintiffs and this basis of claim fails.

 

 

SECTION 53 OF THE ACT OF 1840

Section 53 of the Act of 1840 provides as follows:-

 

“…upon all Debts or Sums certain, payable at a certain Time or otherwise, the Jury on the Trial of any Issue…may…allow Interest to the Creditor at a Rate not exceeding the current Rate of Interest, from the Time when such Debts or Sums certain were payable, if such Debts or Sums be payable by virtue of some written Instrument at a certain Time, or if payable otherwise then from the Time when Demand of Payment shall have been made in Writing, so as such Demand shall give Notice to the Debtor that Interest will be claimed from the Date of such Demand until the Term of Payment;…”

 

42. The essential difference between section 26 and section 27, on the one hand, and section 53, on the other hand, is that the former come into play once judgment has been given, whereas the latter comes into play before judgment is given. Section 26 and section 27 provide that a judgment debt automatically carries interest. However, the effect of section 53 is to allow in the assessment of the amount for which judgment should be given that interest be added to a substantive claim, subject however to compliance with the formalities prescribed in section 53.

 

43. It is the Plaintiffs’ case that the letter dated 11th January, 1996, which gave the Defendant notice that the Plaintiff was claiming interest, triggered an entitlement, from the date of that letter, to interest on the amount of the costs when eventually taxed, subject, of course, to giving credit for the amounts paid on foot of interim certificates which have issued. Counsel for the Defendant identified a number of impediments to the recovery of interest by the Plaintiffs under section 53.

 

44. It was submitted on behalf of the Defendant that there is no debt or sum certain payable within the meaning of section 53. A debt only arises under section 6(2) and a sum certain only becomes payable when a final certificate of taxation issues, although it was conceded, rightly in my view, that a debt or a sum certain would be payable on the issue of an interim certificate. The claim under section 53, it was submitted, is premature. Section 53 could only be invoked after taxation if the Defendant did not pay on foot of the certificate of taxation.

 

In London, Chatham and Dover Railway Company -v- South Eastern Railway Company [1893] A.C. 429, Lord Herschell, L.C. considered the meaning of the expression, ” debts, or sums certain, payable ” in section 28 of the Civil Procedure Act, 1833, the English equivalent of section 53. He stated that the certain sum payable must be a certain sum which is due absolutely and in all events from one party to the other, though it may not come, strictly speaking, within the term ” debt”. In my view, to entitle a creditor to claim interest under section 53, the debtor’s liability to pay a specific sum must have arisen when the claim is triggered by a demand and notice. Whether the Defendant’s liability for payment of a specific sum had arisen on 11th January, 1996 is a question of the construction of the relevant Order of the Tribunal construed in the context of the enabling provision, section 6(2) of the Act of 1979. In my view, the liability of the Defendant under the relevant Order to pay the costs arises only when an interim certificate of taxation or a final certificate of taxation issues, because his liability is to pay the costs “as taxed”. The Plaintiffs were not entitled to invoke Section 53 on 11th January, 1996, and will not be entitled to invoke that section and to claim interest until a final certificate issues and then only if the Defendant fails to pay on foot of the final certificate. As I understand the position from the pleadings, interim certificates issued and payment was made on foot of them in August 1996.

45. It was also submitted on behalf of the Defendant that the Plaintiffs had not established compliance with the formalities required in section 53, in that there must be a demand for payment of the debt or sum certain, coupled with notice that interest is being claimed. They pointed to the decision of the Supreme Court in East Cork Foods Limited -v- O’Dwyer Steel Company Limited [1978] I.R. 103 as authority for the proposition that the requirements of section 53 must be strictly adhered to. The letter of 11th January, 1996 did not comply with the requirements of section 53 and it could not have so complied because the costs were not quantified at that date and, more fundamentally, as I have held, the Defendant’s liability to pay had not accrued because taxation was not completed.

 

46. However, the Plaintiffs also made the case that, even if the formalities stipulated in section 53 have not been complied with, they have an equitable claim for interest. They rely on a passage from the judgment of Lord Herschell in London Chatham and Dover Railway Company -v- South Eastern Railway Company at page 436 in which the Lord Chancellor was considering the position of a creditor whose debtor refused to exchange accounts as agreed, thus preventing the creditor from quantifying the debt. In relation to this type of situation, Lord Herschell stated as follows:-

 

 

“In certain cases that might in equity entitle the party who was in the right in the contest to treat the matter as if he had given such notice; if, for example, he had written, ‘It is impossible to ascertain the exact amount because you will not give me a proper account; but I give you notice that I claim whatever is the amount, with interest from this date’. I think if he had taken such a step as that, although it would not have been at law a compliance with the terms of the statute, in equity he would have been regarded and ought to have been regarded as being in the same position as if he had complied with the statute”.

 

47. The assumption underlying the foregoing passage is that the debtor was liable to pay the unquantified amount at the time notice was given. That is a different situation to the situation which pertains in the instant case. As I have said, on the proper construction of the relevant Order in the context of the enabling provision, the Defendant only becomes liable to pay the costs on the issue of a certificate of taxation. It is not merely a question in the instant case of non-compliance with formalities; rather section 53 does not come into play at all at this juncture because there is no debt or sum certain payable. In the circumstances, the Plaintiffs have no entitlement in equity to section 53 interest.

 

 

Mehigan v. Duignan (No.2)

 

[1999] IEHC 135; [1999] 2 IR 593; [1999] 2 ILRM 216 (22nd March, 1999) Laffoy J

 

9. The issuing of execution orders, including orders of fieri facias , is one of the methods by which courts enforce their decisions. The issuing of such orders on foot of judgments and orders of this Court is governed by the Rules of the Superior Courts, 1986. Order 42, Rule 16 of the Rules of the Superior Courts provides as follows:-

 

 

“The address and description of the party against whom any execution order shall issue or such other description of him as the solicitor for the party issuing same may be able to give shall be endorsed on such order, but the party against whom such order shall issue shall not be allowed to take advantage of the want of such endorsement, it shall not be necessary to state the place of abode of either party in the body of such order.”

 

10. That rule is, in substance, in the same terms as the 106th General Order of 1854 which was in force when The Law Relating to Sheriffs in Ireland , by Dixon & Gilliland was published in 1888. Apropos of the 106th General Order, the authors stated at page 224:-

 

 

“It is quite clear that…. the plaintiff or his attorney is not bound to specify or point out the defendant’s goods or property liable to the execution: all he is bound to do is to endorse on the writ of execution the address and residence of the defendant, or such other description of him as he may be able to give the sheriff. If he does this the law then casts on the sheriff the obligation of using due and reasonable diligence for the purpose of ascertaining what property the defendant is possessed of liable to the execution. Thus it would appear that the endorsement….. amounts to no more than a statement by the solicitor for the purposes of affording assistance to the sheriff, leaving it to his discretion whether he will act on it or not.”

 

11. As I have already indicated, I find that in September 1998 the premises at 3 St. Patrick’s Terrace were for a substantial part of the time the Respondent’s abode. Therefore, I hold that the wrong address was not endorsed on the orders of fieri facias and that wrong information was not furnished to the sheriff. In any event, even if the Respondent’s averment that he “ordinarily resided and had a dwellinghouse at Kilglass” and his testimony that he only used the premises at St. Patrick’s Terrace as an occasional residence, an office and an accommodation address were true, the orders of fieri facias would not have been rendered invalid by the statement of the Respondent’s description and place of abode endorsed thereon.

 

12. The basis of the Respondent’s contention that the returns to the orders of fieri facias were wrongful and irregular and should be disregarded is the assertion that the County Registrar did not act with due diligence in the performance of the duty imposed by the orders and, in particular, did not enter the premises at St. Patrick’s Terrace, did not try to identify the goods of the Respondent therein and did not give an intimation to the Respondent of intention to levy execution. In relation to this ground, the Respondent relies on the decision of the Northern Ireland Court of Appeal In Re. Alexander, Bankrupt , (1966) N.I. 128.

 

13. The decision of the Northern Ireland Court of Appeal in In Re. Alexander is succinctly summarised in the head-note in the following terms:-

 

 

“A return of no goods made by a sheriff who has done nothing to ascertain whether the debtor has any goods to seize is not a return within the meaning of Section 21(5) of the Bankruptcy (Ireland) Amendment Act, 1872, and an adjudication grounded upon such a return may be annulled under Section 29 of the Irish Bankrupt and Insolvent Act, 1857.”

 

14. Section 21(5) of the 1872 Act was amended in Northern Ireland in 1929 by the Bankruptcy Amendment Act (Northern Ireland), 1929 and the provision, as amended, which was under consideration by the Northern Ireland Court of Appeal, was as follows:-

 

 

“5. That execution against the debtor has been levied by seizure of his goods under process in an action in any court or in any civil proceedings in the High Court, and the goods have been either sold or held by the sheriff for twenty-one days; or a return of no goods has been made by the sheriff in the case of any such execution .”

 

15. The words to which I have added emphasis were introduced by the 1929 amendment. In relation to those words, Lord McDermott, L.C.J., stated as follows at page 139:-

 

 

“When paragraph 5 of Section 21 speaks of a return of no goods having been made ‘in the case of any such execution’ it is, I think, quite impossible to say that these words are capable of being read as reference to some initial phase of execution in the sort of suit that has been mentioned earlier in the paragraph. The kind of execution with which both limbs of the paragraph are concerned is that which has proceeded beyond the issue and delivery of the writ and which includes some positive act in the performance of his duty by the sheriff. The words ‘any such execution’ can mean nothing less in this context. They must be related to execution which, as it were, has got the length of action against the judgment debtor, and it therefore follows that a return of no goods that has been made by a sheriff who has done nothing to ascertain if the debtor has any goods to seize is not a return within the meaning of paragraph 5. Take the case (not this case by any means) of a sheriff who lets the writ lie on his desk for a week and then endorses a return of no goods without doing anything. The writ is good. The return is good on its face. But on such facts it is not a return made in the case ‘of any such execution’. Not only has there been no seizure followed by sale or retention, but there has been no effort at all to subject the debtor and his premises to any kind of search or enquiry. And if the actual defaulter is not the sheriff but a bailiff in his service who makes no effort to discharge his duty and fraudulently sends in a report that there is nothing to seize, the result must surely be the same. This is quite a different ground from that of mere falsity. In essence it means that there has been no ‘such execution’, and I see no reason why that should not be alleged and proved under Section 129. If it is, then on the true construction of paragraph 5 of Section 21, there would appear to be no act of bankruptcy.”

 

16. Later Lord McDermot, having stated that the findings of fact made by the trial Judge could not be regarded as a bona fide attempt at execution, went on to say at page 142:-

 

 

“The court is here dealing with its own process and should not be astute to accept something colourable, a mere ‘going through the motions’ of execution as a genuine attempt at enforcement.”

 

17. The provision of the Act of 1988 which corresponds to Section 21(5) of the Act of 1872, and the provision relied upon by the Applicant here, is Section 7(1)(f) which provides:-

 

 

“An individual…. commits an act of bankruptcy in each of the following cases –

1 ….. (f) if execution against him has been levied by the seizure of his goods under an order of any court or if a return of no goods has been made by the sheriff or county registrar whether by endorsement of the order or otherwise;”

 

18. In my view, the absence of the words “in the case of any such execution”, which are to be found in the second limb of Section 21(5) of the Act of 1872, as amended in 1929 in Northern Ireland, from the second limb of Section 7(1)(f) is of no materiality and the decision In Re. Alexander is not distinguishable on that account only. It is clearly implicit in Section 7(1)(f) that the return of no goods made by the sheriff or county registrar referred to therein is a return on foot of execution under an order of any court. In principle, a return nulla bona which has been made without a bona fide attempt at execution must be open to challenge by a debtor as not constituting a “return of no goods” within the meaning of Section 7(1)(f) so as to amount to an act of bankruptcy. However, in this jurisdiction the sheriff or county registrar would have to be before the Court and would have to have an opportunity to be heard on such a challenge, given that such a challenge would impugn the conduct of a public officer in the performance of a duty reposed in him by a court. It is not necessary on this application to consider how that could be achieved in a proper procedural fashion.

 

19. In this case, all the evidence before the Court establishes is that Ms. Connaire, with the connivance of the Respondent, deflected the County Registrar away from No. 3 St. Patrick’s Terrace by furnishing information which was untrue. It would absurd if a debtor could rely on specific inactivity of a sheriff or county registrar which was induced by false information furnished to him by, or with the connivance of, the debtor. That is all there is in this case and, in the circumstances, the Respondent, on whom the onus lies has not established that the returns dated 30th September, 1998 were made other than on foot of a bona fide attempt at execution so as not to amount to an act of bankruptcy within the meaning of Section 7(1)(f).

 

20. Accordingly, being satisfied that the Applicant has satisfied the requirements of Section 11(1) of the Act of 1998, I propose to sign an Order adjudicating the Respondent bankrupt.

 

 

Paper Properties v power order 42a

 

Smyth & Anor v. Tunney & Ors

[2004] IESC 24 (21 April 2004)JUDGMENT of Mr. Justice Geoghegan delivered the 21st day of April 2004 [Nem Diss]

 

This appeal arises from two applications made to the High Court under O. 42, r. 24 of the Rules of the Superior Courts for leave to issue execution on foot of judgments for costs which said judgments were more than six years old. In respect of a costs order made on the 24th November, 1989 the first, second and fourth-named respondents applied and in respect of two subsequent costs orders made on the 26th June, 1992 and the 1st March, 1995 respectively the application was brought by the first and second-named respondents only. The High Court (McCracken J.) granted the order sought on the 23rd November, 2001 and the plaintiffs/appellants have appealed on a number of grounds. It is appropriate at this point to cite in full O. 42, r. 23 of the Rules of the Superior Courts and the relevant part of r. 24.

 

“23. As between the original parties to a judgment or order, execution may issue at any time within six years from the recovery of the judgment, or the date of the order.

24. In the following cases, viz.:-

 

(a) where six years have elapsed since the judgment or

order, …

(b) …

(c) …;

the party alleging himself to be entitled to execution may apply to the Court for leave to issue execution accordingly. The Court may, if satisfied that the party so applying is entitled to issue execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried: …”

This rule has a long ancestry going back to the Common Law Procedure Amendment Act, (Ireland) 1853 and I will return to it in due course. In his judgment the learned High Court judge commented inter alia as follows.

 

“The respondents opposed this application on the basis that there is an onus on the applicants to show reasons for the delay. I accept this is so.”

In the High Court that principle was not originally conceded by Mr. Noonan, counsel for the first and second-named defendants (respondents on the appeal). He argued that the order under r. 24 was not really a discretionary order at all but that the court had to decide whether to make the order or to direct first that an issue or question be determined as to the rights of the party which might be relevant to the order. That argument however cannot be correct having regard to the decision of this court in Fitzgerald v. Gowrie Park Utilities Society Limited [1966] I.R. 662 which made it perfectly clear as did some old Irish cases that the order is discretionary. Once the order is discretionary there must be something on which the judge can attach himself to in exercising the discretion. I think that it can be fairly said that that much was accepted by all sides at the hearing of this appeal. The real issue is whether there have to be some quite exceptional or special reasons or whether it is sufficient that in a general way the applicant was reasonable in making the application at the stage he did. When I come to deal with the law I will analyse this more fully. First it is necessary to look at the facts.

 

The application of the first and second-named respondents was grounded on the affidavit of their solicitor, Mr. Adrian O’Doherty. He referred to the relevant orders and that the sums remained unpaid despite unsuccessful attempts to levy execution against the first-named appellant. In the affidavit, Mr. Doherty explains why his clients up to that date had sought to issue execution against the first-named appellant only. He said it was primarily because the only asset of substance which to the knowledge of their clients was owned by the second-named appellant was his leasehold interest in Sachs Hotel, Dublin of which the second-named respondent was the landlord. There had been a long history of landlord and tenant proceedings culminating in proceedings seeking forfeiture on the grounds of non-payment of rent to the tune of £588,605.41 and interest and a counterclaim for damages for defamation which proceedings were not concluded. There is then a key paragraph in the affidavit, paragraph 5 which reads as follows:

 

“5. I say and believe that the first and second-named defendants had determined originally to await the outcome of those proceedings before attempting further execution on foot of the said judgments in the within proceedings on the assumption that those proceedings would have long since concluded. However because of the lengthy delays that have occurred in finalising the current proceedings, the first and second-named defendants are now extremely concerned having regard to the fact that twelve years will have elapsed from the date of the said judgment on the 24th November, 2001.”

The alleged determination to await the outcome of the other proceedings must be read in the context of three different letters to similar effect written by the solicitors for the appellants, Messrs PCL Halpenny & Son and exhibited earlier in the affidavit. The learned High Court judge was obviously of the view and was clearly entitled to be of the view that the existence of those letters lent credibility to what is contained in paragraph 5 above. The letters were written in response to formal demands for the respective sums which were a prelude to proposed bankruptcy proceedings. The letters alleged abuse of the legal process and formally called upon the first-named respondent to desist from proceeding any further with threatened bankruptcy proceedings until a petition to wind up Genport Limited brought by the fourth-named respondent and an appeal from High Court proceedings were disposed of. As McCracken J. points out, the demand in each of the letters is much the same, that is to say, that the first-named respondent should hold back until all proceedings between the parties were disposed of.

 

Mr. Adrian O’Doherty also states in his affidavit that in the course of a recent hearing in the petition to wind-up the second-named plaintiff one of the grounds of objection was that no attempt had been made by the petitioner to send in the sheriff “to seize the furniture and effects in Sachs Hotel”. Mr. O’Doherty points to the logic of that statement namely, that there must be goods and chattels in the hotel amenable to execution.

 

With regard to the similar application by the fourth-named respondent, that is grounded on an affidavit of Mr. Peter B. Brady, solicitor in the firm of John Murray solicitors, solicitors for the fourth-named defendant. That affidavit refers to the petition to wind-up the second-named plaintiff which was presented by the fourth-named respondent but was adjourned by the High Court judge also McCracken J. with liberty to re-enter. As no efforts were made by either of the appellants to pay the costs due to the fourth-named defendant, the petition was re-entered but was again adjourned by McCracken J. with liberty to re-enter as the learned High Court judge considered that the proceedings between the two companies should first be determined. In paragraph 7 of the affidavit however Mr. Brady states the following:

 

“7. The fourth-named defendant is conscious that her right to renew the action under O. 42, r. 24 may be extinguished pursuant to the provisions of the Statute of Limitations, 1957, section 11(6) as the original judgment on which it is based is dated the 24th of November, 1989.”

I should mention in passing that this is an argument that was heavily relied on also by the first and second-named respondents in submissions before both courts. As it happens and for reasons which I will be explaining when I am treating of the law, the key word in the said paragraph 7 cited above is “may”. Mr. Brady then goes on to refer to the same point as was made by Mr. O’Doherty that is to say that one of the grounds of objection in the petition was that no attempt had been made to seize the furniture and effects in Sachs Hotel. In paragraph 9 of the affidavit he avers to the fact that the first-named appellant had been the controlling shareholder of the second-named appellant but had disposed of his shares in or about 10th of December, 1999.

 

In response to these affidavits the first-named appellant, Mr. Smyth, swore an affidavit on the 21st of November, 2001. The nub of his opposition to the order giving liberty to execute is contained in paragraph 4 of this affidavit which reads as follows:

 

“4. I say and believe that if the defendants were given liberty to issue execution at this very late stage, it would work a serious injustice on both me and Genport by virtue of the significant change in circumstances which has taken place in relation to the affairs of Genport since the original judgment was given in 1989. This change in affairs is particularly significant over the past six years since 1995 as Genport’s financial position has seriously deteriorated over this period, and more especially, in recent years. Furthermore, I disposed of my shareholding in Genport in December, 1999 and can exercise no control over the management or affairs of Genport (save in relation to the conduct of the counterclaim in current proceedings (Crofter Properties Limited v. Genport Record No. 1996 No. 25P). My personal position in relation to the judgments in question has been seriously prejudiced by the lapse of time because I always assumed and was reasonably entitled to expect as a matter of commercial reality that the liability for these judgments rested with Genport which was for many years in a financial position to discharge those judgments. My personal position was therefore protected because the defendants could obviously not recover twice on foot of the judgments, once against Genport and once against me.”

The matters raised by Mr. Smyth only come into play if the respondents can be regarded as having prima facie given acceptable reasons for granting the order. The order is a discretionary one and this court would be slow to interfere with the High Court judge’s exercise of that discretion. Clearly, McCracken J. was of the view that sufficient reasons had been shown because he expressly accepted that that was a requirement. He then effectively went on to outline the reasons. Not only was it entirely open to the learned High Court judge to take the view which he did in relation to this aspect of the matter but I do not think that he could have taken any other view. For reasons which I will explain in greater detail when treating of the law, I am satisfied that it is not necessary to give some unusual, exceptional or very special reasons for obtaining permission to execute out of time provided that there is some explanation at least for the lapse of time. It is, of course, accepted by all sides that even if a good reason is given the court must consider counterbalancing allegations of prejudice. It is in that context that the first-named appellant’s affidavit comes into play. I cannot see that the first-named appellant was prejudiced in any legal sense. When he was in control of the company and it was thriving he could have procured that the judgments were paid off. As was pointed out by Mr. Noonan in the High Court the downturn in the company’s fortunes first occurred at a stage when the six year period had not run out. No relevance can be attached in my view to the disposal of the shares in Genport by the first-named appellant. He did that with his eyes open knowing that the debt was outstanding, knowing that he would no longer have any control over Genport and, therefore, over the efficiency of its business and he cannot now use any of these factors as grounds of prejudice to prevent leave to execute being granted. The learned trial judge puts it more strongly than I have done and it is worth quoting him.

 

“The respondents further complain that they are prejudiced by the delay because Genport Limited is now in a much worse financial position than it would have been had the parties moved earlier. I find this an astonishing proposition in the present circumstances. The respondents can hardly be heard to say that they are prejudiced because they failed to pay their own debts due by them on foot of judgment. It is also true that Mr. Smyth has sold his interest in Genport Limited. But of course this sale must have been with the full knowledge of the debt of both parties.”

I heartily endorse the sentiments of the learned trial judge. For this reason, I do not propose to analyse those parts of the affidavit of the first-named appellant which deal in detail with the finances and profitability of the company. It is also suggested by the first-named appellant that the application was not brought for a bona fide purpose of recovering money but rather for ulterior purposes. Quite apart from the fact that this court would not be entitled to speculate on these matters, it is absurd to suggest that in circumstances where there was quite genuinely a fear at least on the part of the legal advisers that once the statutory period for bringing an action on foot of the judgment had elapsed leave to execute could not be granted, that they would allow the judgments go by default and not make sure to obtain the leave before the period ran out. It is not necessary to consider whether that alone is a good reason because in this case there were clearly circumstances which had rendered it reasonable to delay execution, as the learned trial judge accepted.

 

I am satisfied that there were good reasons for making the application when it was made and that the delay in executing up to that time was explained. I am also satisfied that there was no relevant prejudice to the appellants. I must now consider what in those circumstances are the correct legal principles to be applied.

 

1. 42, r. 24 does not set out any express criteria on foot of which the leave to execute after the six years may be granted or refused. That seems to be still the position in the equivalent modern English rule though in the “white book” extract which has been furnished to the court there are footnotes which set out the practice in the Queen’s Bench Division. Apparently, in England the application may be made ex parte grounded on an affidavit of facts giving the obvious formal particulars relating to the judgment and “showing causes of delay”. This ex parte application may apparently be made to the Master but the footnote goes on to say that the Master “may” direct a summons to issue. As it happens, as I write this judgment I have in front of me “Annual Practice” (“The White Book”) as far back as 1936 and the footnote including the requirement of showing cause for delay is virtually identical with one exception. The 1936 edition says that the Master “will, however, generally direct a summons to issue”. Be that as it may, the fact that the application in England has traditionally been made at least in the first instance ex parte would suggest to me that no very strong or exceptional reasons that would have to be adjudicated upon were required. Some reason for delay had to be shown but no more. Interestingly, in the 1936 edition at p. 782 after setting out the requirements which I have already outlined the following passage appears:

 

“The Court of Appeal in Ireland decided that, after a lapse of six years, leave to issue execution ought not to be granted ex parte, unless special circumstances were shown, and that an affidavit of belief that if notice were given to the defendant he would remove his goods was not such a special circumstance (National Bank v. Cullen [1894] 2 I.R. 683).”

I will return to that case but it should be noted that the reference to “special circumstances” is confined to the situation where it is desired to obtain an ex parte order where an element of surprise is perceived to be necessary. As I will endeavour to show, the old Irish cases did not seem to indicate that strong reasons had to be given in the case of applications on notice.

 

Before I consider the earlier Irish cases, I think it appropriate to return to the modern authority on the subject to which I have already referred i.e. Fitzgerald v. Gowrie Park Utility Society Limited (cited above). That is clear authority for the proposition that the order is a discretionary one. By a decision of three judges to two it was decided that the High Court judge had erred in principle in exercising his discretion. The lead judgment was delivered by Lavery J. and what was concerning the court was the issue of cross-claim. The order suggested by Lavery J. was a refusal of leave to execute but with liberty to renew the application when a pending appeal relating to the cross-claim had been determined. But that suggested order was made in the context of the particular facts of that case. A solicitor had taken an assignment of a costs order in favour of his own client. The High Court judge had taken the view that when the solicitor took the assignment the judgment was in full force and effect and that, if it was not then available as an asset, he might have obtained some other security. The potential availability of another security was considered wholly unrealistic by Lavery J. and, accordingly, he was of the view that the High Court judge had erred in the exercise of the discretion. But there is an important sentence in the judgment of Lavery J. at p. 672:

 

“It was not contended in this court that a judge was bound to set off one judgment against another and I hope that nothing I have said suggests that I think so.”

I am satisfied that the facts of this case are quite different, given that there was at least a perceived danger that if the application was not made at the time when it was made the benefit of the judgment debt would be lost. It was entirely reasonable that the learned High Court judge should exercise his discretion in favour of the respondents no matter what other claims may have been extant.

 

If the perception that the benefit of the judgment debts might be lost after the twelve year period elapsed was a reasonable one it is entirely irrelevant whether it was correct in law. I do not propose to express any definitive view as to whether it was correct or not or whether in this connection there is a difference between the English and Irish law. Such consideration should await a case where it is necessary for the decision and where preferably there is a five judge court sitting. But I do have to refer to the case law to some extent with a view to demonstrating that the perception of danger on the part of the legal advisers of the respondents was at least a reasonable one which I believe it was.

 

I will refer first to Evans v. O’Donnell (1886) 18 LR Ir. 170. It was decided in that case by the Irish Court of Appeal affirming a Divisional Court decision of the Queen’s Bench Division in which separate concurring judgments of O’Brien J. and Johnston J. had been delivered that leave could not be granted to issue execution on a judgment which was more than twelve years old having regard to the provisions of s. 8 of the Real Property Limitation Act, 1874 where there had been neither payment nor acknowledgment in the meantime. However, it is only fair to say that on one reading of the Queen’s Bench judgments it was in a sense taken for granted that a statute barred judgment debt could not be executed and the real issue was whether the relevant statutory period was the twelve year period prescribed by the 1874 Act or a twenty year period prescribed by the Common Law Procedure Act, (Ireland) 1853. The Queen’s Bench Division judgments are reported in (1885) 19 ILTR 53. The issue which arose in this case however was partly and, indeed, summarily disposed of by Lord Ashbourne in his judgment in the Court of Appeal at p. 171 of the report. The following passage from his judgment makes it clear.

 

“Two questions have been argued before us – one of form, and the other of substance. The question of form may be shortly disposed of. It was urged that it was not open to the plaintiff to rely on section 20 of the Common Law Procedure Act because the present was not an action upon a judgment. I think that this objection is well-founded, because a motion for liberty to issue execution is similar to a motion for liberty to revive a judgment under the old practice. Such motions were expressly held not to be actions on judgments in the cases of Wall v. Walsh and Johnson v. Bell. But this would be an unsatisfactory ground on which to rest a decision.”

Effectively, he then goes on to deal with the substantive issue holding that the 1874 Act limitation period of twelve years applied and that there could, therefore, be no execution. There were concurring judgments from FitgGibbon LJ and Barry LJ. What is noteworthy about that case is that the court was accepting the proposition put forward by Mr. Michael Collins, S.C., counsel for the appellants in this case that a motion for liberty to execute a judgment is not an action to recover a judgment within the meaning of the Statute of Limitations but was nevertheless holding contrary to Mr. Collins’s submissions that it was a complete answer to such an application that the debt was statute barred and, therefore, extinguished. Interestingly, in the latest English case Lowsley v. Forbes [1999] 1 AC 329 at 339 Lord Lloyd of Berwick seems to take a different theoretical view as to what the English law was. The relevant passage reads:

 

“I agree, of course, that Ord. 42, r. 23(a) was not ultra vires. Mr. Terrell’s argument was indeed a bold one, as Scott LJ observed. (A reference to the judgment of Scott LJ in WT Lamb and Sons v. Rider [1948] 2 KB 331). But I would not with respect, agree with the steps in Scott LJ’s reasoning. In particular I cannot agree that the words ‘action, suit or other proceeding’ in section 40 of the Act of 1833 and section 8 of the Act of 1874 were given the narrow meaning to which Scott LJ referred.”

Lord Lloyd then goes on to comment on what he regards as selective citation by Scott LJ omitting to mention two relevant cases as he saw it. This distinction, of course, makes no difference because whether one applies the old Irish Court of Appeal law or the modern House of Lords law the end result is the same though the jurisprudential basis for it is different. In either case, leave to execute a statute barred judgment debt could not be granted.

 

Long before that recent House of Lords case however the waters had become muddied by an important decision of the English Court of Appeal in National Westminster Bank Plc v. Powney [1991] Ch. 339. The Court of Appeal in that case was called upon to decide between two conflicting decisions of its own namely, WT Lambe and Sons v. Rider cited above and Lougher v. Donovan [1948] 2 All E.R. 11. It had been held in Lougher’s case that an application to extend the process of execution on a judgment was an “action” within the meaning of the English Limitation Act, 1939 where the relevant provision and definition were similar to those contained in our Statute of Limitations, 1957. In the Lambe case however heard by a different division of the Court of Appeal though in each case including Scott LJ, the opposite was held though the court was not prepared to admit it at the time. The following passage from the judgment cited at p. 354 in the National Westminster Bank report reads as follows:

 

“It follows from the above brief survey that the right to sue on a judgment has always been regarded as a matter quite different from the right to issue execution under it and that the two conceptions have been the subject of different treatment. Execution is essentially a matter of procedure – machinery which the court can, subject to the rules from time to time in force operate for the purpose of enforcing its judgments or orders. It is only fair to say that in that case what seems to have been argued was somewhat different than what is argued in this case. It seems to have been argued that the rule was ultra vires given that you could sue out on the judgment at any time within twelve years. This submission was rejected.

What complicates the matter still further as Mr. Michael Collins rightly pointed out is that although Lord Lloyd of Berwick in Lowsley v. Forbes cited above disagreed with the reasoning of the Court of Appeal in National Westminster Bank v. Powney cited above which had endorsed Lambe rather than Lougher, he nevertheless went on to point out that a more modern Limitation Act in England had been clearly drafted on the assumption that the National Westminster Bank case was correct which assumption had also been made by a law reform committee of distinguished judges on foot of whose recommendations the new Limitation Act had been drafted. As a consequence, the House of Lords held that the National Westminster Bank case, although originally wrongly decided, must now be regarded as the law in England and Wales.

 

Having regard to all these uncertainties emerging from the Irish and English cases it was entirely reasonable for the respondents to be concerned lest they might never be able to obtain leave to execute their judgment or might not be able to execute it once the statutory period for actions for the recovery of a judgment debt had elapsed.

 

I would add in another factor to support that view. Even if it was the case that leave under the rules could be granted to execute a statute barred judgment debt on the basis that the application for leave was not an action to recover a judgment within the meaning of the Statute of Limitations and also on the basis that the statute barred debt could not be said to be extinguished altogether, the respondents would still have encountered very considerable problems in persuading a court to exercise discretion in their favour. Even on the best possible view of the law from the point of view of the respondents, the fact that the statutory period has run must surely be a major factor to be considered by a court in considering whether to grant or refuse leave as a matter of discretion. As I indicated, I do not intend to give a definitive view of what I believe to be the correct legal position as I do not find it necessary to do so. No matter what view is taken it was entirely reasonable for the respondents to have had the apprehension which they did have at the time they made the application.

 

Finally, I want to refer to another Irish case which I have already cited in a different connection – The National Bank v. Cullen [1894] 2 I.R. 683. That was a case before the Irish Court of Appeal consisting of Walker C., Palles CB, FitzGibbon LJ and Barry LJ. The point at issue was whether an application under the rules for leave to execute on a judgment had to be made on notice or could be made ex parte, as was even then, the admitted practice in England. The court affirmed an order of Gibson J. refusing the ex parte application. The practice ever since in Ireland and indeed before that has been that the application is brought on notice and, therefore, that issue does not arise in this case. But I think that passages in the judgment particularly of Palles CB are relevant. He pointed out that the relevant rules at that time Rules 24 and 25 of O. 42 of the Rules under the Judicature Act were substantially similar to sections 148 and 149 of the Common Law Procedure Act (Ireland) 1853. He then pointed out that section 148 of the 1853 Act had modified the common law rule as to the time within which execution should issue and that section 149 substituted in cases within that modified rule a summary application in lieu of the old writ of scire facias. At common law, execution could not issue save in certain exceptional cases later than a year and a day after the rendition of the judgment. Section 148 extended that period to six years. After the period of six years there was to be an application to the court under section 149, which he said was something similar to the pre-1853 Act procedure under the Statute of Westminster II whereby after a year and a day there would be an application to the court for a scire facias. The Chief Baron said that the reason in each case was the same and had been explained by Lord Denman in Hiscocks v. Kemp 3 Ad. & Ell. 676. Lord Denman had said the following as quoted by Palles CB:

 

“The scire facias in personal actions was given by that statute rather in aid of plaintiffs than in restraint of them. At the common law, a presumption arose, from the plaintiff’s delay beyond a year that his judgment had either been satisfied, or, from some supervening cause, ought not be allowed to have its effect in execution. After such a delay, therefore, he was not allowed to issue execution as a matter of course, but was driven to bring a new action on the judgment. The scire facias, which had been in use of the common law for the purpose of executing judgments in real actions after a year and a day’s delay, was therefore adopted by the statute as a less expensive and dilatory course for the plaintiff, and as equally affording protection to the defendant, if he had any reason to show why the execution should not issue.”

I would pause here to note that none of this suggests that historically, a plaintiff had to have strong reasons for extension of time. Rather the purpose of the application to the court was to give both a benefit to the plaintiff and a protection to the defendant if he was prejudiced. The Chief Baron goes on to put it more clearly at p. 687:

 

“Thus, the restriction upon the period for issuing execution was for the protection of the defendant, and in consequence of a presumption against the right to issue execution, arising from lapse of time; and if a period so short as a year and a day was, at common law, sufficient to raise such a presumption, so a fortiori must have been the extended period of six years during which, since 1853, execution can issue without leave.”

The general thrust of the four judgments is that in special circumstances which would have to be proved on affidavit, the order could be made ex parte but otherwise as a matter of natural justice, the application must be made on notice contrary to the English procedure. The emphasis is then essentially on prejudice to the defendant though obviously some reason must be given by the applicant. Although in this case it has not been fully proved that the relevant respondents could not have executed the judgment debt by some means within the six year period, they have nevertheless shown sufficient reasons why they allowed a lapse of time and should still be allowed to execute if they can. Essentially, the conduct of the appellants heavily contributed to the delay in execution. For the reasons given by the learned High Court judge and the reasons given in this judgment which for all intents and purposes overlap, I would dismiss the appeal.

 

 

 

 

Hampshire County Council v C.E. & Ors

 

[2018] IECA 365 (28 November 2018)

 

Whelan J

 

Application of domestic principles to present case

93. If one considers the material provided to the appellants on 22nd September 2017, its deficiencies are very clear. The bare recitals in the court order served on the appellants were indeed an “entirely perfunctory statement” and fell far short of meeting the requirement to state “…full particulars of the judgment…” (O. 42A, rule 12(a)). The said rule required that an adequate and complete statement of reasons be provided to the affected parties. In the case of the mother three minor children were being removed from her care permanently. As events transpired the appellants’ relationship with their new-born child then aged 18 days old was being severed in perpetuity. The potential implications of the orders for the future lives of the appellants and the lives of their children could hardly have been more profound.
94. As Baker J. correctly observed in Haier Europe Trading SRL v. Mares Associates Limited [2017] IEHC 159:

 

“49. In Verdoliva v. J.M. Van der Hoeven BV & Ors . Case C-3/05, the CJEU, on a preliminary ruling concerning the interpretation of Article 36 of the Brussels Convention as amended, answered the question of whether in cases of failure of, or defects in, service of a decision authorising enforcement, the mere fact that the party against whom enforcement is sought had notice of the decision by whatever means was sufficient to cause time to run for the purposes of the Convention.

50. The Court answered the question in the negative and noted that service performed a dual function: it fixes the time for appeal, and in that regard noted the strict and mandatory time limits for appeal provided in Article 36 of the Regulation, and serves to protect the rights of the party against whom enforcement is sought. In that context the Court considered that the procedural requirements for service “are more stringent than those applicable to transmission of that same decision to the applicant”. Therefore failure of, or defect in, service had to be construed strictly and no subjective knowledge of the person against whom enforcement was sought could come to be considered as a factor in considering whether service was complete.

 

51. In Barnaby (London) Ltd v. Mullen [1997] 2 I.L.R.M. 341 the Supreme Court adopted the analysis of another judgment of the European Court in Isabelle Lancray S.A. v. Peters und Sickert KG Case C-305/88, [1990] ECR 1-2725, which was followed by the CJEU in Verdoliva v. J. M. Van der Hoeven BV , regarding the dual purpose of service, and that service fixed the “terminus a quo” for the purposes of any appeal by the party affected. The Court refused to deem service good.

 

52. The relevant factors which must be seen as the guiding principles in the scheme of the Brussels Regulation are as follows:

(a) Time limits for appeal are strict and mandatory.

(b) The purpose of service is to start time running for an appeal, and to ensure fairness of process to the person against whom a judgment is enforced. Therefore the requirement of service is to be construed strictly.

 

(c) The test of whether the material elements of a judgment were contained in the documents served is objective. Imputed or actual knowledge of the person against whom enforcement is sought is not a relevant factor.

 

(d) Any rule or practice in a domestic court which impairs the effectiveness of the scheme is to be precluded.”

 

95. The order served on 22nd September 2017 was not sufficiently clear and lacked “full particulars” to enable the parents as affected parties to consider whether they may have grounds to challenge the decision on any basis.
96. I am satisfied that the threshold with regard to adequacy of service as required was not met by domestic law by HCC on 22nd September 2017. At the earliest the material served on the appellants first met the national minimum requirements for provision of information to enable the appellants as affected persons identify and obtain full knowledge of the reasons for the decision in question on Monday 25th September 2017 and not before that date.

EU jurisprudence on reasons being intrinsic to notice of a decision

97. Of relevance is the decision of the European Court in Case 236/86 Dillinger Hüttenwerke AG v. Commission of the European Communities [1988] E.C.R. 3761. In that case it was contended on behalf of the applicant that it had only acquired full knowledge of the precise wording of and reasons for the decision by way of the Commission’s defence. It was asserted that in the absence of publication or notification the period of limitation could begin to run only from the moment when the person concerned obtains precise knowledge of the act in question:

 

“14. It is clear from the Court’s case-law relating to the third paragraph of Article 173 of the EEC treaty (judgments of 5 March 1980 in Case 76/79 Koenecke ((1980)) ECR 665, and of 5 March 1986 in Case 59/84 Tezi Textiel ((1986)) ECR 887) that, failing publication or notification, it is for a party who has knowledge of a decision concerning it to request the whole text thereof within a reasonable period but, subject thereto, the period for bringing an action can begin to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right of action.”

98. As was stated by the CJEU in its judgment of 6th December 1990 in Case C-180/88 Wirtschaftsvereinigung Eisen-und Stahlindustrie v. Commission of the European Communities [1990] E.C.R. I-04413 at para. 22:

“It is clear from the Court’s case-law that, failing publication or notification, it is for the party which has knowledge of a decision concerning it to request the whole text thereof within a reasonable period and that the period for bringing an action can begin to run only from the moment when the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right of action (judgment in Case 236/86 Dillinger Huettenwerke [1988] ECR 3761, paragraph 14).”

99. That decision was followed in Case C-309/95 Commission of the European Communities v Council of the European Union [1998] E.C.R. I-00655 where at paras. 18-19 it is stated:

“18. According to the case-law of the Court, in the absence of publication or notification, it is for the party which has knowledge of a decision concerning it to request the whole text thereof within a reasonable period and the period for bringing an action can begin to run only from the moment at which the third party concerned acquires precise knowledge of the content of the decision in question and of the reasons on which it is based in such a way as to enable it to exercise its right of action (Case C-180/88 Wirtschaftsvereiningung Eisen- und Stahlindustrie v Commission , cited above, paragraph 22).

19. It must therefore be ascertained what was the date on which the Commission had precise knowledge of the content of the decision and the reasons on which it was based.”

 

100. These principles accord entirely with our domestic regime. I am satisfied that Order 42A, r. 10(2) of the Rules of the Superior Courts must be construed in light of and in concordance with CJEU jurisprudence. There is complete harmony between the national and Union approach and both subscribe to the principle that time for the purpose of lodging an appeal can begin to run only from the point at which the person concerned had precise knowledge of the content and the grounds of the act at issue in such a way as to be able to take full advantage of his right to institute proceedings.
101. In circumstances where an order is made pertaining to minors, unless the order as served affords adequate information to enable a holder of parental rights to acquire precise knowledge and information of the contents of the decision together with all material reasons on foot of which it was made with sufficient particularity to enable them to make an informed decision as to the exercise of their rights including a right to appeal, service is not validly effected and time does not begin to run for the purposes of an appeal.

Conclusions

102. There is complete harmony between the national and Union law on valid service. Procedural fairness requires that time for the purpose of lodging an appeal can begin to run only from the point at which the person concerned had precise knowledge of the content and the grounds of the act at issue in such a way as to be able to take full advantage of their right to appeal. The requirement of service is to be strictly construed.

 

103. The order obtained by HCC before the High Court on Thursday 21st September 2017 as a condition precedent to enforcement was required to be validly served on the appellants.

 

104. Having regard to Article 33(5) of the Brussels II bis Regulation the time for appealing against the declaration of enforceability made in the High Court on 21st September 2017 was two months from the date of valid service of the said ex parte order.

 

105. It is a matter for the national courts to reach a determination as to whether and when orders, including an enforcement order, have been validly served.

 

106. The rules governing service are primarily found in Order 42A of the Rules of the Superior Courts.

 

107. In enforcement proceedings brought pursuant to the Brussels II bis Regulation which involved recognition and enforcement of parental responsibility the party against whom the enforcement order has been obtained is entitled to appeal the decision pursuant to Article 33(1).

 

108. The order of 21st September 2017 incorporates by reference, on its face, significant material and data. Any meaningful understanding of the order, the reasons underlying it and its import presupposes service of and effective access to the said materials on the part of the recipient of the order.

 

109. No explanation has been forthcoming as to why HCC withheld service of relevant material from the appellants on 22nd September 2017 at a point when the minors had already been removed from the jurisdiction.

 

110. The withholding of the documentation incorporated by reference into – and intrinsic to an understanding of – the ex parte order of 21st September 2017 which articulated the reasons underpinning its granting drained the purported service of any validity for the purposes of Order 42A, r. 10(2). It precluded the appellants from any possibility of being aware of the content of the decision and more particularly of the reasons for the decision. The order was not validly served on 22nd September 2017 for the purposes of the commencement of time running pursuant to Order 42A or Article 33(5).

 

111. No valid service has been shown to have been effected upon the appellants prior to, at the earliest, Monday the 25th September 2017.

 

112. It follows that the notice of appeal of 24th November 2017 was served within time.

 

113. I would allow the appeal.

 

114. I would remit the matter to the High Court for urgent determination of the substantive appeal with priority.

 

115. The question of any interlocutory relief is a matter for the High Court.

 

 

 

 

Barnaby (London) Ltd v. Desmond Mullen

[1997] 2 I.L.R.M. 341

;  Murphy J

 

The regulations requiring an enforcement order to be served on the judgment debtor obviously have the purpose of affording the debtor the opportunity of knowing that an order which was made affecting him had been granted on the ex parte application of the judgment creditor. But the fact of service has another purpose within the scheme of the 1968 Convention and the legislation and regulations giving effect thereto. It is the fact of service which fixes the terminus a quo for the purposes of any appeal by the party affected. Furthermore the provisions relating to execution are material. The relevant rule of the Superior Courts, O.42A, r.13 (inserted by SI No. 14 of 1989 ), so far as material, provides as follows:

Any party wishing to issue execution on a judgment declared to be enforceable under s. 5 of the 1988 Act must produce to the appropriate officer an affidavit of service of the order granting leave to enforce a judgment under s. 5 of the 1988 Act and of any order made by the Master of the High Court, the High Court or the Supreme Court (as the case may be) in relation to the judgment.

It is clear that some such procedure would be required. It would be pointless to set up a procedure for ensuring that notice was given to the defendant of the foreign proceedings without creating machinery to ensure that such notice was given before the order became operative. Logically, therefore, the party obtaining the order from the Master must be in a position to provide evidence establishing not only that this purpose has been effected but has been effected as of a particular date. Accordingly I am satisfied that it would not suffice in the circumstances of the present case to show, if such were the case, that the defendant became aware at some stage of the contents of the order made by the Master of the High Court. The procedure envisages and requires the service of the order personally or in any other manner prescribed by the Master so as to fix the defendant with knowledge of the order and also the date on which he is deemed to have that knowledge. This purpose could not be effected by an inference, however strong, that the party concerned did become aware even after a short but undefined interval of the documents inadequately or improperly served.

Furthermore it seems to me — and I reach the conclusion with considerable regret — that it would not be feasible for the court to ‘deem good’ at a subsequent date a form of service which did not comply with that prescribed by the Master originally or in any subsequent order made by him. If the service was not in compliance with the Master’s order in the first place time for an appeal would not have started to run and if deemed good after the expiration of one month the time for appealing would have expired. Whilst the appellant in the present case may be deficient in merits the court would not be justified in penalising him in that way.

In the circumstances I would allow the appeal.

 

 

 

In the Matter of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 and

 

Paper Properties Ltd v. Power Corporation plc and Justlot Ltd

1996] 1 I.L.R.M. 475

 

CARROLL J delivered her judgment on 26 October 1995 saying: This is an application to enforce a foreign judgment of the Court of Appeal of England and Wales dated 15 December 1994. A petition to appeal to the House of Lords was lodged on 13 January 1995 and was refused on 24 May 1995. An application was made to the Master ex parte on 23 February 1995 and the Master made his order dated 1 March 1995 under the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988 enforcing the judgment against the first named defendant and also putting interim protective measures in place in the nature of a Mareva injunction.

On the same day a letter was sent by fax in the following terms to the solicitor for the first named defendant and to the first named defendant at its corporate address:

We act on behalf of Paper Properties Ltd having their registered office at Canberra House, 315, Regent Street, London WIR 7YB, England.

Please note that on 1 March 1995 the Master of the High Court in Dublin made an order for the enforcement of a judgment dated 15 December 1994 which was obtained against Power Corporation plc (‘the company’ ) in the Court of Appeal in England in the following terms:

1. Judgment in the sum of sterling £656,166.14 together with interest at the rate of 8% per annum calculated on the judgment debt and costs from 15 December 1994 until date of payment;
2. An injunction restraining the company from reducing its assets below the amount of the said judgment;
3. Liberty to notify the enforcement of the judgment by ordinary post and registered post at the registered office of the company being 58, South Mall, Cork and by facsimile;
4. Liberty to appeal this order within one month;
5. Costs of this application were granted to the applicant, Paper Properties Ltd.

The letter was signed McMahon & Tweedy. The first named defendant’s solicitor understood the letter to be a notice of enforcement within the meaning of the Rules of the Superior Courts (SI No. 14 of 1989) , O. 42(A), rr. 9 and 10 . A notice of motion was issued on 30 March 1995 appealing the order of the Master and relying on the following grounds:

(a) That the judgment the subject matter of the said order of the Master is under appeal;

(b) In the alternative that the application for leave is pending before the House of Lords;

(c) That the applicant failed to comply with the provisions contained in the 1968 Convention;

(d) That the applicant failed to comply with the requirements of the Rules of the Superior Courts in and about the application for enforcement;

(e) Any such further or other matter as may be thought fit.

On 13 April 1995, the plaintiff’s solicitor sent a letter stating that it was an enforcement notice of the order granting leave to enforce the judgment.

The first named defendant relies on O.42(A), rr. 9 and 10 and on defects in the letter of 1 March 1995 and says the plaintiff is not entitled to mend its hand by serving the letter of 13 April when it got the affidavit grounding the notice of motion.

The first named defendant makes the following points:

1. The application to the Master ex parte did not disclose that there was an appeal pending to the House of Lords which was not refused until May 1995.

However, I am informed by counsel for the plaintiff who moved the application before the Master, that he did indeed tell the Master about the appeal and having considered the matter, the Master made the order as he was entitled to do.

That disposes of that point.

2. The letter of 1 March 1995 stated there was liberty to appeal within one month and the solicitor for the first named defendant understood this to be the notice required under the rules. As a notice, the letter was seriously defective as it omitted many of the requirements of rr. 9 and 10 .

If the letter of 1 March 1995 was the notice, the first named defendant would indeed succeed but the plaintiff’s counsel says this was merely a letter which the Master required them to send to notify the first named defendant of the terms of the order as the injunction had immediate effect. The first day the order was available was 13 April. It was taken up on that day and sent to the first named defendant with the formal notice.

I accept that the letter of 1 March was not intended to be the enforcement notice and was notification of the making of the protective measures. But I do have sympathy with the first named defendant’s solicitors who were faced with the bald statement that there was liberty to appeal within one month. However, that is a matter that can be remedied in costs if necessary when we come to discuss those.

The next point concerns the actual notice of 13 April. As an alternative argument, the first named defendant argues that if the enforcement notice of 13 April is to be treated as the notice required by the Act, it too is defective.

Firstly, it does not contain full particulars of the order of the Court of Appeal. There is no mention of the order that £7,500 security for costs was to be paid out to the plaintiff’s solicitors or that leave to present a petition of appeal to the House of Lords was refused.

Secondly, the first named defendant claims that service was not in accordance with the Master’s order which provided:

A copy of this order together with an enforcement notice to be served on the defendants by prepaid registered post and prepaid ordinary post addressed to the defendant at its registered office at 58, South Mall, Cork and by facsimile. The defendant to have one month from the date of such service to appeal against the making of this order. The plaintiff’s address for service is 10 Ely Place, Dublin 2.

The notice was served by fax, not at the registered office but at the office of the first named defendant in Dublin and the notice was not served on Justlot Ltd, the second named defendant.

In answer, the plaintiff says the parts of the judgment relevant for enforcement were cited. No enforcement was sought for ss. 4 and 5 of the judgment, that is concerning the security for costs and the refusal of leave to appeal.

1. 42(A), r.10 states:

The notice of enforcement shall state (a) full particulars of the judgment declared to be enforceable and the order for enforcement….

However, if you look at s. 6 of the 1988 Act, it says:

Subject to s. 8(4) of this Act and to restriction on enforcement contained in article 39(a) , a judgment other than a maintenance order in respect of which an enforcement order has been made, shall, to the extent to which the enforcement of the judgment is authorised by the enforcement order, be of the same force and effect.

And the rest is not relevant.

It seems to me that full particulars of the part of the judgment sought to be enforced is what is required, not a lot of detail which has no relevance.

Lastly, there is the service question. It is probable that a typing error was made in the Master’s order but it is not for me to change it. So I am going to adjourn the issue based on the question of reference to two defendants. The plaintiff should apply to the Master under the slip rule to see if this indeed is the case. If it is a typographical error, that is the end of that issue. If it is not and the Master intended service on two defendants, then the matter can be re-entered before me.

As to service by fax, the first named defendant was served at its Dublin office. I am informed that in the fax directory, this is the only fax number shown. The registered office is the address of the solicitor.

There is no substance in this argument. The purpose of service is to make sure that the party to be served gets the notice. This was achieved threefold by ordinary post, registered post and fax. There was no fax address given. The order does not say fax at the registered office. So this argument does not succeed.

(The hearing was adjourned pending application to the Master).

 

 

 

Rylands v. Murphy

 

[1997] IEHC 151 (29th August, 1997)Judgment of Miss Justice Laffoy delivered on the 29th August, 1997

 

There are two motions before the Court in this matter.

1. The first is the Plaintiff’s motion on foot of a notice of motion dated 7th July, 1997 seeking the following reliefs:-

 

 

(1) an order for the attachment and committal of the Defendant for failure ” to comply with Orders for Sale made by this Honourable Court on the 15th July, 1994 and the 29th July, 1996 “; and

 

(2) further, or in the alternative, an order directing the Registrar of the High Court to take such steps and to sign such documentation as may be necessary to complete the sale of the premises known as the Rear of No. 32, 34 and 35 Dominick Street, Dublin, The Phoenix Bar and the immediate floors not to be included.

 

2. The second motion is the Defendant’s motion on foot of a notice of motion dated 6th August, 1997 claiming –

 

 

“… an Order setting aside the Order of Specific Performance obtained by the Plaintiff herein on the 15th day of July 1994 on the grounds that the Plaintiff herein has failed, neglected or refused to comply with the terms of the said Order by failing to complete the transaction thereby directed to be completed from the date of said Order to date of issue hereof …”.

 

3. There is also a claim for such further or other order as may be necessary in all the circumstances of the case.

 

4. The substantive action was an action by the Plaintiff, as purchaser, against the Defendant, as vendor, for specific performance. The order dated 15th July, 1994, which was made by Lynch J., was a consent order. It contained first a declaration in the following terms:-

 

 

“The Court doth declare that the agreement made on the 21st day of May 1992 between the Plaintiff and the Defendant, the Defendant agreed to sell and the Plaintiff agreed to buy the freehold property known as the Rear of Number 32, 34 and 35 Dominick Street, Dublin, The Phoenix Bar, and all the immediate floors above it not to be included at the price of £87,000 ought to be specifically performed and carried into execution and doth order and adjudge the same accordingly”.

 

5. There was then a further order by consent that the sum of £95,000 be substituted in lieu of £87,000 in the said agreement for the purchase price.

 

6. The agreement for sale at the substituted purchase price was not completed and on 9th July, 1996 the Plaintiff issued a notice of motion claiming relief in terms similar to the relief sought on the Plaintiff’s motion which is now before the Court. The parties settled their differences at the end of July 1996 on the terms following:-

 

 

(1) that the sale would close on Friday 9th August, 1996,

 

(2) that the Defendant would execute a conveyance in favour of a sub-purchaser to whom the Plaintiff had agreed to sell on the property,

 

(3) that the map to be annexed to the conveyance was agreed,

 

(4) that the terms of a statutory declaration in relation to user were agreed, and

 

(5) that the Plaintiff’s motion would be struck out with no order as to costs.

 

7. The sale did not close on 9th August, 1996, as agreed. The Defendant issued a notice of motion dated 16th October, 1996 claiming an order setting aside the order for specific performance dated 15th July, 1994 in similar terms to the Defendant’s motion which is now before the Court. The Plaintiff retaliated with a notice of motion dated 7th November, 1996 claiming relief similar to the relief which had been claimed in the motion of July, 1996 and the relief which is claimed on the Plaintiff’s motion which is now before the Court. On the hearing of the present motions, the Court was told that no action was taken on the Defendant’s motion of October 1996 and that the Plaintiff’s motion of November 1996 was not proceeded with.

 

8. There is a factual dispute as to the reasons why the sale was not completed on 9th August, 1996 or subsequently. In broad terms, the Plaintiff’s contention is that the Defendant was not in a position to give vacant possession of the property and there were incumbrances affecting the Defendant’s title which the Defendant was not in a position to prove had been discharged. The Defendant denies the Plaintiff’s assertions and, in broad terms, contends that the sale was not completed because the Plaintiff was not in funds to complete it and that a further complicating factor was a dispute which arose between the Plaintiff and solicitors who had been previously on record for him around November/December 1996. The Plaintiff in turn denies the Defendant’s assertions.

 

9. I consider that the logical approach to this matter is to consider the Defendant’s motion first because, if the Defendant is entitled to the relief he seeks, no question can arise of granting to the Plaintiff the relief he seeks. The position is that the order of 15th July, 1994 ordered specific performance of the agreement at the substituted purchase price against the Defendant at the suit of the Plaintiff and the entitlement of the Plaintiff to have the agreement, so varied, specifically performed was affirmed by the settlement reached at the end of July 1996. Accordingly, the question which arises is whether the Defendant has made out a case that something has occurred since the end of July 1996 which entitles the Defendant to be discharged from performance of the agreement on foot of the order of 15th July, 1994. The case made out on the Affidavit evidence filed on behalf of the Defendant is that the delay in completing since the end of July 1996 was all of the Plaintiff’s making, that the Plaintiff is trying to hold the property at the agreed price while property values are appreciating and without paying any deposit and without being prepared to pay interest on the purchase money. While, as I have pointed out, the Plaintiff contends that the delay in completion since the end of July 1996 is attributable to default on the part of the Defendant, in my view, the correct approach to adopt in determining whether the Defendant is entitled to the relief claimed on his motion is to consider whether such relief could be granted if the case made out by the Defendant was uncontroverted.

 

10. The agreement, which was ordered to be specifically performed, in the order dated 15th July, 1994 remained in effect and was not merged in that order: see judgment of MacWilliam J. in Vandeleur -v- Dargan [1981] I.L.R.M. 75. The agreement in question, the agreement of 21st May, 1992, was a document signed by the Defendant and the Plaintiff which consisted of ten lines and in which there was no express provision stipulating a date for completion or making time of the essence for completion or dealing with delay. Therefore, the respective rights and liabilities of the parties in relation to the time for completion were governed by the common law. At common law, the Plaintiff purchaser could only lose the remedy of specific performance and have the contract terminated against him if, after being guilty of unreasonable delay, the Defendant vendor had by notice limited a reasonable time for completion and the Plaintiff purchaser had not completed within that time: see judgment of Kenny J. in Healy Ballsbridge Limited -v- Alliance Property Corporation Limited [1974] I.R. 441. On the case made out by the Defendant, no such notice has been served by the Defendant on the Plaintiff since 9th August, 1996, the closing date agreed at the end of July 1996. Accordingly, in my view, even if the case made out by the Defendant that the delay in completion is entirely attributable to default on the part of the Plaintiff was uncontroverted, the Defendant has not made out a case that the Plaintiff has lost the remedy of specific performance and that the Defendant is entitled to terminate the contract against the Plaintiff now. Accordingly, I hold that the Defendant is not entitled to have the order of 15th July, 1994 set aside.

 

11. I turn now to the Plaintiff’s motion. No order was made by the Court on 29th July, 1996. The order of 15th July, 1994 merely declared that the agreement ought to be specifically performed; it did not require the Defendant to complete the agreement and it did not state any time for completion of the agreement. Accordingly, Order 41, Rule 8 of the Rules of the Superior Courts, 1986 was not and could not have been complied with. I refuse the Plaintiff’s application for an order of attachment and committal.

 

12. As regards the alternative relief sought by the Plaintiff, as judgment was given for specific performance in the order of 15th July, 1994, the case comes within Sections 31 and 33 of the Trustee Act, 1893 (“the 1893 Act”). As the form of deed by way of sub-sale and the map to be annexed to the deed were agreed between the parties at the end of July 1996, if recourse has to be had to the provisions of the Trustee Act, 1893 I consider that the appropriate course would be to appoint a person to convey the property under Section 33 of the 1893 Act. I consider this course should be adopted even though the sub-purchaser with whom the Plaintiff is now dealing is a different sub-purchaser to the sub-purchaser in whose favour it was intended to make the conveyance at the end of July 1996. However, before an order is made under Section 33, I propose that the Defendant should be given an opportunity to complete the sale and execute the conveyance in the ordinary way. Accordingly, I propose making an order directing the Defendant to complete the sale and execute a conveyance in the form agreed at the end of July 1996 to the sub-purchaser nominated by the Plaintiff on or before 12th September, 1997. The Order will provide that, in the event of the failure of the Defendant to complete the sale and execute a conveyance on or before 12th September, 1997, the Plaintiff shall be at liberty to lodge the purchase money amounting to £95,000 in Court to the credit of this suit and the order will further provide for the appointment of the Plaintiff’s solicitor, Liam Moran, who is an officer of the Court, to convey the property in the name of the Defendant for all the estate right title and interest of the Defendant therein in the event of the purchase money being paid into Court as aforesaid.

 

13. There is one further issue to be addressed. In addition to his entitlement to be paid the purchase money under the agreement, the Defendant is also entitled to be paid by the Plaintiff such, if any, interest as he is entitled to at common law having regard to the course of the sale. There is a dispute between the parties as to when, if at all, the Defendant was in a position to furnish vacant possession and an unemcumbered title and this dispute cannot be resolved on the Affidavit evidence. If the Defendant so requests, I will direct that an issue be tried in the proceedings between the Defendant, as plaintiff in the issue, and the Plaintiff, as defendant in this issue, on oral evidence to determine whether –

 

 

(i) the Defendant is entitled to be paid interest on the purchase money by the Plaintiff, and

 

(ii) if so, the period for which such interest is payable and the rate at which such interest is payable.

 

14. Each party will have liberty to apply.

 

 

Ulster Bank Ireland Ltd -v- Whittaker

 

[2009] IEHC 16 (21 January 2009)2. The Procedural History

 

2.1 As indicated earlier, these proceedings involve a claim brought by special summons, in the ordinary way, for a well charging order arising out of a money judgment followed by the registration of that money judgment as a judgment mortgage against the property. Mr. Whitaker, who is, in his original replying affidavit, described as a businessman with an address at Manchester in the United Kingdom, has asserted that, as of the date of the registration of the judgment mortgage concerned, he did not have any legal or beneficial interest in the property the subject of the proceedings. This fact was contested on behalf of the Ulster Bank. The only evidence produced concerning the purported disposal by Mr. Whitaker of his interest in the property concerned (it being accepted that he had previously owned the property) was a memorial of a Deed of Assignment dated the 6th December, 1996. Certain difficulties with the text and content of that memorial and other surrounding circumstances have lead Ulster Bank to contest whether it is truly the case that Mr. Whitaker had properly disposed of his interest in Oakley Park in such a way as to prevent the judgment mortgage concerned having any practical validity.

 

2.2 In the ordinary way, affidavits were exchanged between the parties and the matter came in to the court list for hearing on affidavit. Having regard to the issues which had arisen between the parties on the affidavit evidence, counsel for the Ulster Bank persuaded me that it would be appropriate to allow for the cross examination of Mr. Whitaker on his affidavit. That cross examination took place but, quite frankly, matters were not significantly clearer as a result of it. In the circumstances I was satisfied that Ulster Bank had established a prima facie case to the effect that Mr. Whitaker did not fully dispose of his interest in the property prior to the registration of the judgment mortgage affidavit. However, I was also satisfied that it would be impossible, without a full plenary hearing, to come to a definitive conclusion as to whether Ulster Bank’s case was properly made out. Amongst the reasons which I gave, at the relevant time, for adjourning the matter to plenary hearing, was that such a course of action would afford Ulster Bank an opportunity to use whatever procedural steps that might be advised (such as discovery) to enable all relevant evidence to be before the court when the court would be required to reach a final decision on the matter.

 

2.3 I should also add that when the matter was before me at that time, I came to the view that it would be appropriate to afford the Trustees an opportunity of being added as notice parties to the proceedings. On the face of it the Trustees would appear to be entitled to the legal interest in the property the subject matter of the proceedings which they, presumably, hold on trust for their clients. The Trustees would appear to be professional Trustees operating in the Isle of Man who carry on the business, amongst other things, of acting as Trustees and holding property on trust for beneficiaries who are their clients. The Trustees were, therefore, contacted and initially indicated that they wished to be heard in the matter. The Trustees were, therefore, joined as notice parties.

 

2.4 Subsequent to the proceedings being adjourned for plenary hearing, Ulster Bank applied for orders of discovery as against both Mr. Whitaker and the Trustees. When those applications first came before the court it was suggested by counsel on behalf of the Trustees that, having regard to the duty of confidence which those Trustees owed to their clients, it would be appropriate to defer making any order for discovery as against the Trustees until such time, at least, as orders of discovery had been made against Mr. Whitaker and those orders complied with. The suggestion was based on the fact that if all material documents were forthcoming from Mr. Whitaker, it might be unnecessary to make any order against the Trustees and, in those circumstances, it might be inappropriate to require the Trustees to disclose documents which were confidential in nature unless those documents were important to the case. I agreed with that course of action. In fairness, counsel for Ulster Bank put forward no opposition to the course of action suggested at that time.

 

2.5 Thereafter, discovery proceeded against Mr. Whitaker. While it is unnecessary to set out the course of that discovery process in detail, it does have to be noted that Ulster Bank were forced to bring a number of further applications for the purposes of securing proper discovery. However, that process is at an end. Again without going into detail it is fair to say that, on the basis of Mr. Whitaker’s sworn affidavit evidence in the discovery process, he has very little documentation indeed available to him concerning the transaction whereby the property was purportedly sold. Against that background Ulster Bank resurrected the application for discovery as against the Trustees and an order was made in the terms sought. There is some question as to whether the order concerned was on consent or otherwise. Suffice it to say that it is not disputed but that no grounds for not making the order were put forward and, therefore, even if it is not correct to state that the order was made on consent, it is certainly true that the order was made without any opposition from the Trustees.

 

2.6 That order was made on 20th November, 2007. I am satisfied that solicitors acting on behalf of Ulster Bank, thereafter, bespoke a copy of that order and served it on the solicitors on record for the Trustees by letter dated 18th December, 2007. When the matter next came before me on 29th January, 2008, it was, effectively, accepted by counsel on behalf of the Trustees that it was not the intention of the Trustees to comply with the order concerned. On that basis Ulster Bank applied to the Master of this Court, under r. 3 of Order 43 of the Rules of the Superior Courts, to approve the appointment of sequestrators and to obtain consequential directions related to the security to be offered by such sequestrators and the way in which such sequestrators ought to account for any properties which they might receive. Because of my prior involvement in the matter, the Master of this Court considered it appropriate to put the case into the judge’s list and to arrange to have the issue listed before me.

 

2.7 For various reasons outside anyone’s control the application did not come to be heard until the 15th of January, 2009. As indicated earlier, on that occasion counsel for the Trustees indicated that she no longer had any instructions and took no part in the hearing. However, the application was opposed on behalf of Mr. Whitaker.

 

2.8 It is, therefore, appropriate to turn first to the basis on which Mr. Whitaker opposed the application.

 

 

3. Mr. Whitaker’s Opposition

 

3.1 It would be fair to characterise Mr. Whitaker’s opposition as being based on two points, one of a technical nature and the other of a substantive nature.

 

3.2 In Delaney and McGrath – Civil Procedure in the Superior Courts – 2nd Ed. at para. 10 – 98, the authors note that a party who believes that its opposite has not made discovery in compliance with the terms of an appropriate order has a number of options available. It is pointed out that an application for attachment can be brought but that this is rarely done in practice. While attachment would, of course, be the appropriate course of action to seek to adopt in the case of an individual party resident in the jurisdiction, there would not seem to be any reason in principle why appropriate other forms of enforcement (such as sequestration) might not also be available. Those courses of action are, of course, as the authors correctly note, rarely relied on. The reason for this being so is a matter to which it will be necessary to turn in due course. It seems clear, however, that at least at the level of principle there may be circumstances, admittedly limited, when it is appropriate to enforce an order of discovery by attachment or sequestration.

 

3.3 However, so far as the technical argument made on behalf of Mr. Whitaker is concerned, it is said that the order for discovery, not having had a penal endorsement on it, cannot be enforced by means of sequestration. Therefore, it is said that there is no proper jurisdiction to enforce the order by means of sequestration and that the court should not, therefore, make any order in support of sequestration such as the one sought in this application which would provide for the approval of the sequestrators and defining the terms within which they should operate.

 

3.4 Independent of that technical ground, counsel for Mr. Whitaker suggests that it is inappropriate, in any event, for the court to use an enforcement procedure, such as sequestration, in aid of an order for discovery particularly where, in practical terms, such enforcement would be to cause the Trustees to lose the very property which is at the heart of these proceedings in the first place. I turn to the technical issue first.

 

4. The Technical Issue

 

4.1 Order 41, r. 8 of the Rules of the Superior Courts requires that any order made “requiring any person to do an act thereby ordered” should state the time within which the order is to be obeyed and should contain a memorandum in the words set out in that order in the following form:-

“If you the within named A.B. neglect to obey this judgement or order by the time therein limited, you will be liable to process of execution including imprisonment for the purpose of compelling you to obey the same judgement or order.”

 

4.2 Such a memorandum has often in the past been referred to as a penal endorsement. The sequestration of the assets of a person for failure to obey an order is a form of enforcement. It is clear from Halsbury’s Laws of England Vol. 9, under the heading Civil Contempt, that amongst the forms of enforcement that can be used, in an appropriate case, to enforce a court order which is not obeyed is an order of sequestration. It is clear from Hampden v. Wallace (1884) 26 Ch. D. 746, that even where it is permissible to serve an order on a solicitor (such as an order for discovery in a case such as this) the order must contain the relevant endorsement. In the circumstances I am satisfied that, in order that a party may be subject to a form of enforcement such as attachment, committal or sequestration or, indeed, a fine in lieu, arising out of a failure to comply with an order for discovery, it is, in the ordinary way, necessary that the order concerned should contain what is now described as a memorandum in the form set out in O. 41, r. 8 of the Rules of the Superior Courts.

 

4.3 Prima facie, therefore, the technical point raised by Mr. Whitaker is correct.

 

4.4 There are, however, two further questions that arise under this heading. Firstly it is, correctly so far as it goes, pointed out that Mr. Whitaker is not the party against whom the order is sought – that party having chosen not to participate in the application. On that basis a question is raised over what business Mr. Whitaker has in opposing the application. There is, in my view, some considerable merit in that point. However, all of the authorities make clear that orders such as sequestration or attachment and committal are only to be utilised by the court in a clear case. Therefore, whatever may be the source of the argument as to why the order should not be made, it does not seem to me to be appropriate for a court to disregard a valid point that comes to its attention in whatever way, which might cast doubt as to whether such order could properly be made on the facts of an individual case.

 

4.5 The second question which arises is as to whether there are circumstances in which it is appropriate for a court to consider an application for sequestration (or attachment and committal in an appropriate case) notwithstanding the absence of the relevant memorandum. The relevant jurisprudence (see for example Churchman v. Joint Shop Stewards Committee of the Workers of the Port of London [1972] 3 All E.R. 603 and Husson v. Husson [1962] 3 All E.R. 1056) seems to support the view that the court retains a discretion to allow enforcement, even where a properly endorsed order has not been served, but only in cases where the order requires abstinence from the doing of an act and where the court is satisfied that the person concerned knew of the order, either by being present when it was made or being properly notified of its terms. That exception could not apply in a case such as this where the order concerned requires the person to do something rather than to refrain from doing something.

 

4.6 It is, of course, the case that in the vast majority of circumstances the appropriate step to take when a party fails to comply with an order for discovery is to seek to take appropriate measures within the proceedings such as the striking out of a plaintiff’s claim or a defendant’s defence. Those procedural remedies can, of course, be enforced without taking the much more drastic step of seeking attachment, committal or sequestration. There is no need to include a penal endorsement in order to seek to invoke those procedural remedies.

 

4.7 Where, however, unusual circumstances exist (such as arguably exist in this case) which would justify the bringing of an application such as one for sequestration, I am satisfied that it is necessary that the order sought to be enforced must contain the relevant endorsement.

 

4.8 It having been brought to my attention that the order in this case did not contain such an endorsement (even though that fact was not urged by the Trustees) it seems to me that it would be wrong to take the drastic step of ordering sequestration when the appropriate procedure justifying that step has not being taken. On that ground it does not seem to me appropriate to make any order that would permit sequestration of the Trustee’s assets in this jurisdiction at this stage. However, this point is very much a technical one. I see no reason why Ulster Bank should not now be permitted to serve a further copy of an order for discovery with the appropriate endorsement on it. Having regard to the fact that the Trustees have had more than ample occasion to comply with the original order it does not seem to me that it would be unjust to make a second order of discovery as against the Trustees (in all terms, save as to time, the same as that already made) requiring them to comply with the terms of the original order not later than seven days from today’s date. If so minded, Ulster Bank should be free to serve a copy of that further order with an appropriate endorsement. In such circumstances, any failure to comply would be amenable to enforcement by sequestration.

 

4.9 However, lest I be wrong in the views which I have formed concerning the technical issue, I should go on to indicate what my view would be on the substantive issue raised, not least because it may well raise its head again should Ulster Bank choose to serve a further order with a penal endorsement. I now turn to the substantive issue.

 

5. The Substantive Issue

 

5.1 It is clear, as was noted by the authors of Delaney and McGrath, that enforcement in the form of attachment (and by implication sequestration) will not normally be considered to be the appropriate remedy for a failure to comply with an order for discovery.

 

5.2 However, it is clear that a jurisdiction exists to make such an order in an appropriate case. That leads to the question of what might give rise to such an appropriate case.

 

5.3 It would not be either possible or appropriate to attempt an exhaustive definition of the sort of circumstances that might be sufficient to justify a court in taking what is correctly described as the drastic step of enforcing a discovery order by such means. In the ordinary way, a plaintiff who loses his chance to pursue his case because his claim is struck out by virtue of a failure to comply with a discovery order or a defendant who becomes unable to defend for like reason, will have been more than adequately punished (and their opposing party more than adequately compensated) for the failure concerned. If a plaintiff wilfully refuses to make available documents relevant to the case without just cause then he can hardly complain if the court is not prepared to hear his case. Likewise, a defendant who is similarly unwilling, can hardly complain if the court proceeds to hear the case on an uncontested basis as against him. However, there may be cases where that normal response may prove inadequate. It seems to me that this case is one such case.

 

5.4 As previously indicated, I have already been satisfied by Ulster Bank that there are grounds for concern as to whether the transaction relied on by Mr. Whitaker is such as was sufficient to divest him of any interest in the property concerned so that the judgment mortgage could no longer have any practical applicability. However, it will not be possible for Ulster Bank to properly make out its case at trial without having access to documents evidencing the true nature and form of the transaction concerned. Ulster Bank has not been able to obtain those documents from Mr. Whitaker because he says he does not have them. The only realistic source of such documents are the Trustees. In those circumstances, there is every risk that Ulster Bank’s entitlement to properly make its case at the plenary hearing may be significantly impaired by the failure of the Trustees to make proper discovery. Furthermore, the Trustees are merely notice parties. No relief is directly sought against them, although it is clear that if the order sought is made the Trustees may become involved in the sale process. If, however, Ulster Bank is unable to make its case out against Mr. Whitaker then there could be positive consequences for the Trustees. If, hypothetically, the reason why Ulster Bank fails to make its case out against Mr. Whitaker is because it did not have access to documents which could assist that case and which documents were wrongfully not discovered by the Trustees, then it follows that the Trustees would be seen to have benefited from their own default. That is a situation which a court should not readily permit to occur. I am mindful that what I have said relating to the Trustees applies equally to the beneficiaries. However, any adverse consequences for the beneficiaries could easily be prevented if those beneficiaries procured that the Trustees complied with their discovery obligations.

 

5.5 I am, therefore, satisfied that a party is entitled to urge upon a court that the normal remedy for a failure to comply with discovery (that is a procedural remedy such as striking out proceedings, defences and the like) would not be an adequate remedy in all the circumstances of the case in point. Where that is established, it is appropriate for the court to consider whether the more drastic remedy of attachment and committal or, in an appropriate case, sequestration may be appropriate.

 

5.6 Were it not for the technical deficiency concerning the penal endorsement in this case, I am satisfied that this would have been an appropriate case in which the court should consider the drastic remedy sought.

 

5.7 I should also note that the position attributed to the Trustees was to the effect they could not comply with the order for discovery because of their obligations to their clients under the relevant confidentially regime operative in the Isle of Man. It is not for me to take or express any view on that confidentially regime. However, it has to be noted that if Trustees (professional or otherwise) hold themselves out as being willing to take the legal interest in property situated in this jurisdiction, then such trustees necessarily submit themselves to any connected laws of this jurisdiction, including the procedural laws of the courts concerning disputes relating to that property. The Trustees were not forced to become the legal owners of property situated in this jurisdiction. They would appear to have done so as part of their business. However, in doing so, they must, necessarily, submit themselves to the laws of this jurisdiction concerning the property. They are, therefore, bound to comply with procedural orders made in proceedings relating to the property concerned and cannot, in my view, use any duty of confidence which they may owe under Isle of Man law to their clients, as a legitimate excuse for avoiding their obligations. If such professional Trustees wish to do business in Ireland and to hold Irish property on trust then they must comply with Irish law. If they are either unwilling or, by reason of applicable Isle of Man law, unable to comply with their obligations to the Irish Courts in respect of such a property then they should refrain from becoming professionally involved in holding property in Ireland as Trustees.

 

5.8 There is no doubt but that sequestration of the assets of the Trustees would be a most severe remedy. Given the view earlier expressed that there is a technical deficiency in the manner in which this application has become before the court, it would be wrong of me to express any concluded view as to whether it would be appropriate to make an order of sequestration on the facts of this case. I have, however, set out my view to the effect that where the legitimate interests of a party in a position such as Ulster Bank require that they be actually able to obtain documents on discovery and where no lesser form of procedural order would adequately protect the legitimate interests of such a party, sequestration is open and should be seriously considered by the court where no other remedy would be adequate.

 

5.9 I would postpone any further consideration of the issue until such time as a procedurally correct application was before the court.

 

6. Conclusion

 

6.1 It seems to me that I should, therefore, adjourn this matter until such time as Ulster Bank have had an opportunity to serve the new order of discovery, properly endorsed, to which I have referred earlier and to have notified the Trustees of the fact that an application for the sequestration of their assets in the jurisdiction by virtue of their failure to comply with such new order (on the assumption that they maintain their current position) will be moved.

 

6.2 I will hear counsel as to the appropriate date for the adjournment.