Bula Holdings Ltd & Ors -v- Roche & Ors, [2008] IEHC 208 (2008)

Docket Number:2007 192 P
Party Name:Bula Holdings Ltd & Ors, Roche & Ors
Judge:Edwards J.

Neutral Citation Number: [2008] IEHC 208THE HIGH COURT

COMMERCIAL2007 No. 192 P




JUDGMENT of Mr. Justice John Edwards delivered on the 6th day of May, 2008


  1. This is my judgment in respect of a motion brought by the defendants in the above entitled proceedings by a notice of motion dated 11th July, 2007 seeking the following reliefs:-"(

  1. An order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts striking out or dismissing the plaintiffs' claims on the grounds that the Statement of Claim delivered herein discloses no reasonable cause of action and/or is shown by the pleadings to be frivolous and/or vexatious;

    (b) Further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing or, alternatively, striking out the plaintiffs' claims against the defendants on the grounds that the proceedings have no reasonable prospects of success, are bound to fail and are an abuse of the process of the Court;

    (c) Further or in the alternative, an order pursuant to Order 19 Rule 27 of the Rules of the Superior Courts striking out the Statement of Claim in entirety on the grounds that it contains matters which are unnecessary and/or scandalous and which may tend to prejudice, embarrass or delay the fair trial of the action;

    (d) Further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the plaintiffs' claims against the defendants on the grounds that the Statement of Claim fails to comply with the provisions of Order 19 Rule 5 of the Rules of the Superior Courts in that it purports to make allegations of (inter alia) fraud, deceit, misrepresentation, conspiracy, breach of fiduciary duty and other matters in respect of which particulars are necessary without setting out the necessary particulars,

    (e) Such further and other order as to the Court shall seem fit or appropriate,

    (f) An order providing for the costs of this application and of the proceedings including an order for such costs to be paid as between solicitor and client.2. The motion was grounded upon five affidavits of Isobel Foley, Solicitor, on behalf of the defendants, together with the documents exhibited in those affidavits. Ms Foleys's said affidavits were sworn on 11th June, 2007; 11th of July, 2007; 24th of July, 2007; 19th of September, 2007 and 21st of November, 2007, respectively, It was further grounded upon affidavits of Thomas J. Roche, sworn on 11th July, 2007 and 24th July, 2007, together with the documents exhibited in his said affidavits. Further, it was grounded upon an affidavit of Stephen Hegarty, Solicitor, sworn on 24th July, 2007.

    3. The motion was vehemently opposed by the plaintiffs and the following affidavits were put before the court in reply to those of the moving parties. There were three affidavits of Michael J. Wymes sworn on 18th July, 2007; 24th August, 2007 and 9th November, 2007, together with documents exhibited therein. Reliance was also placed upon an affidavit sworn by Gregory Ryan, Solicitor, on 14th June, 2007.

    4. The matter was argued before me over five days on 27th of November, 2007; 28th November, 2007; 29th November, 2007; 20th November, 2007 and 18th December, 2007, respectively. Further, the court was provided with extensive written legal submissions by both sides, which have been of considerable assistance and for which the court is grateful.

    The pleadings

    5. The Plenary Summons was issued on 11th January 2007, and the General Endorsement of Claim thereto claims the following substantive reliefs:"(1) Damages for fraud, misrepresentation, conspiracy, negligence, breach of duty, including fiduciary duty and unlawful interference with the interests including economic interests of the plaintiffs, and obstruction and/or perversion of the course of justice.

    (2) Declarations that the Judgments and Orders obtained by the defendants in certain proceedings brought in or about 1993 and again in or about 1997 be set aside, including any ancillary costs orders.

    (3) An injunction directing that the defendants refrain from taking any steps to enforce any costs orders extant on foot of the above mentioned proceedings."

    Various ancillary reliefs are also claimed but it is not necessary to recite them.6. A Statement of Claim was delivered on 27th June, 2007. I propose to describe the general scheme of the document and, insofar as it seems to be appropriate, to selectively quote parts of it. Paragraphs 1 to 10 thereof simply identify and describe the various parties. The following matter is then pleaded, inter alia, in paragraph 11 of the document:"11. In each of the years 1993, 1994 and 1997, the defendants caused to be instituted High Court proceedings by way of petitions under Section 205 of the Companies Act, 1963, against Bula Holdings, Bula Trust, Loire Investments, Michael J. Wymes, Michael T. Wymes, Francis Plunkett Dillon and Donald Godson (the Oppression Proceedings)." 7. The plaintiffs then proceed, in paragraphs 12, 13, 14, 15, 16 and 17, to proffer a description of the course of the proceedings referred to in paragraph 11. The description pleaded represents a view from the plaintiffs' perspective and it is not necessarily one with which the defendants would agree. Be that as it may, nothing turns on it, insofar as it goes.

    8. The following matters are then pleaded at paragraphs 18 to 34 inclusive. As the defendants take serious objection to these paragraphs, it is (unavoidably) necessary to recite them in full: "18. At all material times during the course of the said oppression proceedings, the first, second and fourth-named defendants (in their various capacities) represented to the plaintiffs and averred to this Honourable Court that they owned and controlled or alternatively were entitled directly or indirectly to the entire beneficial interest of the shares in the second-named defendant, the subject of the oppression proceedings. The said representations and averments were also made on behalf of Crindle Investments (Crindle). These representations and averments were accepted as being true and relied upon, and which are now known to be false and/or were known to be false by the defendants at the time made, or alternatively became false but were not corrected at the earliest opportunity, or at all, thereby seriously and fatally misleading this Honourable Court and the plaintiffs herein, whereby this Honourable Court was induced into error to make decisions it would not or might not have made had it not been kept out of the true facts.

    19. The fact is that at material times, the first, third and fourth-named defendants (in their various capacities) were not, in fact, the owners or alternatively were not entitled, either directly or indirectly, to the entire or any beneficial interest in the said shares, as same had been sold, transferred, assigned or otherwise disposed of to third parties or otherwise dealt with in circumstances where the said defendants were no longer the owners of the said shares or entitled to the beneficial interest therein directly or indirectly.

    20. In or about 1995, there were changes in the ownership of the second-named defendant whereby legal ownership was vested through Delaware in a US limited partnership (Seafield Partnership) and a US limited corporation (Wellington Investments).

    21. In the premises, at the time of the institution or alternatively during the course of the conduct of the said oppression litigation, the first, third and fourth-named defendants (in their various capacities) were not shareholders such as would allow them to make the aforesaid averments and representations, or entitle them to the necessary locus standi to institute, maintain or otherwise conduct the said oppression proceedings and claims of oppression on their behalves, or to obtain the orders granted to them by the High Court and Supreme Court.

    22. In the premises, matters set forth in the pleadings in the said oppression proceedings were not accurate and known by the defendants not to be accurate at the time. Pleadings to the effect that defendants in those proceedings were shareholders or entitled directly or indirectly to the entire beneficial interest in the said shares in Crindle, were false and known to be false, at the time of the institution of the said proceedings. In the alternative, during the course of the said proceedings and by reason of the disposal or agreement to dispose of the said shares, the said facts relied upon and averments made were no longer and could no longer be true and correct, as the defendants well knew. In the premises, the defendants and each of them were required and obliged to bring these changed circumstances to the attention of the Court, to amend the pleadings and/or discontinue the entire or alternatively the bulk of the said action which they failed to do.

    23. At all material times, the defendants as aforesaid had transferred or agreed to transfer their shareholdings to an undisclosed and covert third party or parties, and to act in the oppression proceedings on behalf of those parties.

    24. At all material times, therefore, the defendants, together with an as yet undisclosed third party or parties, sought to undermine and compromise the plaintiffs in the conduct of the Tara and Bank proceedings and in the bona fide pursuit of their constitutional right to either litigate the said proceedings to a conclusion, to settle them, or to reject the terms of such offers of settlement as might have been proposed by the defendants in the Tara and Bank.

    25. In the premises, the defendants herein who instigated and instituted the oppression proceedings and complained of conduct by the respondents prejudicial to their corporate...

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