Allied Irish Banks Plc v Anthony O'Reilly and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Finlay Geoghegan |
| Judgment Date | 06 October 2015 |
| Neutral Citation | [2015] IECA 209 |
| Court | Court of Appeal (Ireland) |
| Date | 06 October 2015 |
[2015] IECA 209
THE COURT OF APPEAL
The President
Finlay Geoghegan J.
Irvine J.
and
And
Banking – Debts owed to plaintiff bank – Order for statement of affairs after judgment in favour of plaintiff – Challenge to order
Facts: The plaintiff had obtained a judgment against the defendant for a sum in excess of €22,000,000. Part of that sum remained unsatisfied and the plaintiff had applied for an order requiring the defendant to identity his assets. The defendant now appealed.
Held by Finlay Geoghegan J, in an ex tempore judgment, that the appeal would be dismissed. The Court was satisfied that the order made at first instance was within the jurisdiction of the Judge to make, and no additional evidence was required by the plaintiff to justify the grant of the order other than that the judgment debt remained outstanding. Mooreview Developments Limited and Others [2011] 3 IR 615 and Brown v Stafford [1944] 1 All ER 172 applied.
Ex Tempore Judgment of the Court delivered Ms. Justice Finlay Geoghegan on the 6th day of October, 2015
1. This is an appeal brought by the first named defendant, Dr. Anthony O'Reilly ("Dr. O'Reilly") against an order made by the High Court (McGovern J.) on the 8 th June, 2015. The order was made following the hearing of a motion issued on behalf of the plaintiff (AIB) on the 24 th April, 2015. The order granted the reliefs sought at paragraphs 2, 3 and 4 of the notice of motion save for the variation of the value of assets to which para. 4 applied to €100,000. The order was in the following terms:-
"IT IS ORDERED that the First Named Defendant do identify on oath by way of a Statement of Affairs whether and what means he has to satisfy the judgment of this Honourable Court dated the 23 rd day of June 2014, the said Statement of Affairs to be furnished to the Solicitors for the Plaintiff by the 7 th day of September 2015 And IT IS ORDERED that the First Named Defendant do disclose on oath and furnish all relevant documents, including but not limited to all books, records, account statements, pension statements, ledgers, certificates, contracts, loan documentation, transfers and title documents in support of and evidencing the entries made in the aforesaid Statement of Affairs, the said documents and Affidavit of Discovery to be furnished to the Solicitors for the Plaintiff by the 7th day of September 2015, and which said Affidavit and documentation shall include without prejudice to the foregoing the constitutive documents and latest management accounts of the following companies:-"
(a) Galicia Management Limited
(b) Birchfield Holdings Limited
(c) Balinae Enterprises Limited
(d) Araphoe Investments Limited
(e) Glandore Limited
(f) Arquette Limited
(g) Collins Hill Investments Limited
(h) Halsey Investments (Cayman) Limited
And IT IS ORDERED that the First Named Defendant do disclose on oath by the 7 th day of September 2015 details of any asset transfers within the last five years where the market value of the asset individually exceeded €100,000.00."
2. The background to the motion was that on the 23 rd June, 2014, a judgment had been granted in the High Court against Dr. O'Reilly in favour of the plaintiff in the sum of€22,657,432.10. A stay was subsequently refused. It appears from the grounding affidavit of the motion in the High Court that as of the 20 th April, 2015-, a sum of €14,291,362.46 of the said judgment amount remained unsatisfied.
3. The first relief sought in the motion was an order pursuant to O. 42, r. 36 of the Rules of the Superior Courts that Dr. O'Reilly attend before the court for examination pursuant to that rule. That relief was not proceeded with by reason of evidence as to Dr. O'Reilly's state of health which was before the High Court on the 8 th June. Nevertheless AIB have not abandoned that relief, they simply deferred seeking the fixing of a time and date. That fact is relevant to the issues on appeal.
4. The order of the High Court required disclosure on oath in accordance with the order on or before the 7 th September, 2015. Following an application to this Court a stay was placed on that order pending the full hearing of the appeal yesterday.
5. Helpful written submissions were lodged on behalf of Dr. O'Reilly and AIB. The other defendants did not participate in the appeal. Counsel for Dr. O'Reilly synthesised the issues which fell for determination on the appeal both in the written submissions and in oral submission under three headings:-
(i) Whether there was sufficient evidence to warrant the making of the order for discovery in aid of execution.
(ii) Whether the alleged apparent collateral purpose for which the order for discovery in aid of execution was sought by AIB ought to have influenced the High Court judge against the exercise of a discretion to grant the order.
(iii) Whether the order made was too broad particularly having regard to the judgment of Clarke J. in the High Court in Mooreview Developments Limited and Others [2011] 3 I.R. 615.
6. Prior to considering the issues in dispute, I wish to set out briefly the legal framework in which the order in the High Court was made and which is not in dispute on appeal.
7. As stated, the first relief sought in the motion brought before the High Court was an order pursuant to O. 42, r. 36 of the Rules of the Superior Courts for the attendance of Dr. O'Reilly and the production of books and documents in his possession. That rule provides:-
"When a judgement 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 judgement or order, or in the 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 judgement 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."
8. The orders sought and obtained in substance at paras. 2, 3 and 4 of the notice of motion were orders obtained pursuant to the inherent jurisdiction of the court. Whilst referred to and termed "discovery in aid of execution" (as indeed the title in that section of O. 42, commencing with r. 36 states), they are orders made pursuant to the inherent jurisdiction of the court identified by Clarke J. in Mooreview and primarily for the purpose of and curtailed by the ambit of the proposed examination of Dr. O'Reilly pursuant to O. 42, r. 36. I will come back to this point later.
9. In Mooreview on the question as to whether the court had jurisdiction to make an order of the type made by the High Court on the 8 th June herein, Clarke J. set out his reasoning as to the existence of such a jurisdiction at paras. 58 to 60 of his judgment as follows:-
2 "58. It is true that O. 42, r. 36 simply requires a relevant debtor to be 'orally examined' as to means. There is no express provision requiring the debtor to make any information available before he is cross-examined. It should be noted that it has become a common practice in the commercial list in recent times (without objection in most cases) for debtors to be required to make information available in advance of cross-examination. The reason for this is obvious. Leaving aside for the moment the scope of the matters that can be inquired into under O. 42, r. 36, the fact is that a debtor can be required to answer any questions in relation to those matters and is required to bring along all relevant books or documents. It is, therefore, the case that a debtor can be asked about his means of satisfying a judgment in the witness box and can be required to produce in court any documents relevant to his answers. The jurisprudence makes it clear that it is and can be appropriate to ask searching questions of a debtor under such an examination in cases where any real doubt as to the debtor's means may emerge.
59. The case made on behalf of Mr. Cunningham is to the effect that the questioning on behalf of the creditor has to be done, in effect, although not put this way, 'on the blind'. In other words, the relevant debtor cannot be required to make any information available in advance. He simply turns up in court with his books and records and it is left to the creditor's advocate to examine him at length to find out the basic facts and to identify the documents that might be relevant to his means. There may well be straightforward cases where that will work. A person who does not have significant assets (or at least many types of assets) and a relatively straightforward income, may well be easily required to reveal all relevant information without any advance disclosure. However, it is only necessary to contemplate the type of complex interlocking asset ownership arrangements that many of those who now come before the courts have engaged in, to demonstrate that a huge amount of valuable court time would be wasted in requiring...
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...Overseas Ltd. [2009] EWHC 3555 (Q.B.). 8 He also considered Finlay Geoghegan J.'s dictum in Allied Irish Banks plc v. O'Reilly [2015] IECA 209 which the Bank contended supported its position:- “…A person who has obtained a judgment which the judgment debtor leaves unsatisfied appears to m......
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Allied Irish Banks Plc v King
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