Bula Ltd ((in Receivership)) and Others v Tara Mines Ltd and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 19 December 2008
• Neutral Citation: [2008] IEHC 437
• Court: High Court
• Date: 19 December 2008

Bula Ltd (in Receivership) & Ors v Tara Mines Ltd & Ors

BETWEEN

BULA LIMITED (IN RECEIVERSHIP), BULA HOLDINGS, THOMAS C. ROCHE, THOMAS J. ROCHE, RICHARD WOOD AND MICHAEL WYMES

PLAINTIFFS

AND

TARA MINES LIMITED, OUTOKUMPU OY, THOMAS FARRELL, BRENDAN HYNES, MICHAEL McCARTHY, SEAN MURRAY, DAVID LIBBY, MURROUGH O'BRIEN, YVONNE SCANNELL, HEIKKI FOLIN, JUHANTI TANILA, JOHN TULLY, RISTO VIRRANKOSKI, PERTTI VOUTILAINEN, THE MINISTER FOR ENERGY AND MICHAEL O'CONNELL

DEFENDANTS

[2008] IEHC 437

[No. 10898 P/1986]

THE HIGH COURT

PRACTICE AND PROCEDURE

Execution

Court order - Inherent jurisdiction - Order for costs - Proceedings arising out of mining agreements and licences - Motion seeking dismissal of application - Taxation process - Whether application should be dismissed on grounds of delay - Relevant legal principles - Discretionary nature of order - Reasons for lapse of time since order - Whether good reason for lapse of time - Counterbalancing allegations of prejudice - Lengthy nature of litigation - Stay on order - Appeal - Inability to levy execution where stay on order - Certificates of taxation - Delay jurisprudence - Smyth v Tunney [2004] 2 ILRM 537 and Fitzgerald v Gowrie Park Utilities Society Ltd [1966] IR 662 considered - Stephens v Paul Flynn Limited [2005] IEHC 148 (Unrep, Clarke J, 28/4/2005), Barry v Ireland (ECHR, 15/12/2005), McMullen v Ireland (ECHR) 29/7/2004) and Desmond v MGN Ltd [2008] IEHC 56 (Unrep, SC, 15/10/2008) 56 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 42 - Relief granted and motion dismissed (1986/10898P - Dunne J - 19/12/2008) [2008] IEHC 437

Bula Ltd v Tara Mines Ltd

Facts: The defendants had been party to lengthy litigation with the plaintiffs, and a number of the defendants had been granted costs orders by the High Court and Supreme Court against some of the plaintiffs. The 15 ^th and 16 ^th defendants now applied for leave to execute those orders. The 1 ^st, 2 ^nd, 5 ^th and 6 ^th defendants in reply sought to have that application struck out on the basis of inordinate delay.

Held by Dunne J, that ord 42, r 24 of the Rules of the Superior Courts provided for the application to the Courts for leave to execute costs orders in certain circumstances. Considering the leading case on the matter, the Court was entitled to require reasons for the delay in execution and to ensure the other parties were not prejudicially affected by the delay to execute. Having considered the explanation for the delay, the Court was satisfied that the delay was sufficiently justified and that no prejudice to the defendants had been caused. The application of the defendants would therefore be granted and the plaintiffs? application dismissed. Smyth v Tunney [2004] 2 ILRM 537 applied.

RSC O.42 r24

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

RSC O.99 r38

SMYTH & GENPORT LTD v TUNNEY & ORS 2004 1 IR 512 2004 2 ILRM 537 2004/47/10840

STEPHENS v PAUL FLYNN LTD UNREP CLARKE 28.4.2005 2005/56/11682 2005 IEHC 148

BARRY v IRELAND UNREP ECHR 15.12.2005 (APPLICATION NO 18273/04)

MCMULLEN v IRELAND UNREP ECHR 29.7.2004 (APPLICATION NO 42297/98)

DESMOND v DOYLE & TIMES NEWSPAPERS LTD UNREP MACMENAMIN 14.3.2008 2008 IEHC 65

DESMOND v MGN LTD UNREP SUPREME 15.10.2008 2008 IESC 56

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.1

1 JUDGMENT delivered by Ms. Justice Dunne on the 19 day of December 2008

2 This is an application for orders pursuant to O. 42, r. 24 of the Rules of the Superior Courts and/or the inherent jurisdiction of the court granting leave to issue execution of an order of the High Court dated the 24 ^th February, 1997, and an order of the Supreme Court dated the 15 ^th January, 1999, whereby each court ordered that the fifteenth and sixteenth named defendants recover against the first, second, fifth and sixth named plaintiffs, their costs of these proceedings when taxed and ascertained on a party and party basis the costs to include certain reserved costs.

3 By way of response to the application of the fifteenth and sixteenth named defendants, a motion was issued on behalf of the first, second, fifth and sixth named plaintiffs seeking an order dismissing the application for leave to issue execution on the grounds of inordinate and inexcusable delay and pursuant to the inherent jurisdiction of the court. It was also sought to have the application for leave to issue execution dismissed on the grounds that the application is contrary to Article 6 of the European Convention on Human Rights as enacted by the European Convention on Human Rights Act 2003.

4 The proceedings herein were commenced in 1986 in respect of claims for damages and other reliefs against Tara Mines Limited and the fifteenth and sixteenth named defendants and others arising out of mining agreements and licences in respect of adjoining properties in Co. Meath. For ease of reference, I shall refer to the first, second, fifth and sixth named plaintiffs as "Bula" and I shall refer to the fifteenth and sixteenth named defendants as "the Minister". The proceedings ultimately came on for hearing before Lynch J. in the High Court on various dates between the 14 ^th December, 1993, and the 29 ^th November, 1996. In total the hearing before Lynch J. lasted 272 days. There were a number of interlocutory applications prior to the hearing. On the 6 ^th February, 1997, judgment was delivered dismissing each of the plaintiffs claims and after a further three days of hearing, an order was made inter alia, in the following terms:-

"That the Minster and Mr. O'Connell do recover against the first, second, fifth and sixth named plaintiffs their costs of the said proceedings when taxed and ascertained on a party and party basis, said costs to include the costs reserved by the orders set forth in Schedule 4 thereof."

5 The execution on foot of the foregoing order be stayed with the exception of 25% of the costs of trial (to include application made in the course of trial) for a period of 21 days from the date of the perfection of the order and, in the event of the first, second, fifth and sixth named plaintiffs serving notice of appeal within that period and duly entering same that execution be further stayed until the final determination of such appeal."

6 A notice of appeal dated the 24 ^th March, 1997 was lodged appealing against the order. By a judgment and order dated the 15 ^th January, 1999, the Supreme Court dismissed the appeal, affirmed the judgment and order of the High Court and further ordered that the Minister recover against Bula, the costs of the appeal including reserved costs when taxed and ascertained. Subsequently by notice of motion dated the 2 ^nd June, 1999, Bula claimed inter alia an order setting aside the said judgment and order of the Supreme Court on the grounds of objective bias. That matter was considered by the Supreme Court and again Bula was unsuccessful in its application and a further order for costs limited to ten days was ordered against Bula, when the same were taxed and ascertained.

Taxation Process

7 It is necessary to refer in some detail to the taxation process. The first step in this process was the taxation of the costs of the hearing before the High Court. The Bill of Costs was sent under cover of a letter dated the 24 ^th November, 1997, to the solicitors for Bula together with a summons to tax. The taxation of costs took place at a hearing on the 3 ^rd, 4 ^th, 5 ^th and 8 ^th of December, 1997. Separate but concurrent taxations took place in respect of the costs due by Bula and those due by the 3 ^rd and 4 ^th named Plaintiffs. A written ruling was delivered by the Taxing Master on the 25 ^th March, 1998. All of the plaintiffs lodged objections to the ruling and there was a further hearing which led to a further ruling on the 9 ^th July, 1998. An interim certificate in the sum of IR£283,918.00 issued on the 19 ^th May, 1998 as against Bula, being their liability in respect of 25% of the costs of the hearing in the High Court in respect of which there was no stay pending the appeal. Bula then obtained leave to apply for judicial review in respect of the interim certificate of taxation on the 22 ^nd June, 1998. Subsequently on the 23 ^rd October, 1998, Bula issued a motion to review the taxation of costs in respect of the High Court proceedings pursuant to Order 99, Rule 38 of the Rules of the Superior Courts. The application for judicial review and the motion to review taxation came on for hearing together before McGuinness J. and judgment in both matters was delivered on the 7 ^th March, 2000. One of the issues raised in the course of the proceedings before the High Court at that time was the question of service of the summons to tax on the Bula Plaintiffs. The complaint by them in that regard was rejected.

8 The next phase of the taxation process relates to the taxation of the Bill of Costs arising from the appeal of the High Court proceedings to the Supreme Court. A Bill of Costs in respect of the Supreme Court appeal was forwarded under cover of a letter dated the 29 ^th April, 1999, to Pearts Solicitors on behalf of Bula and a summons to tax dated the 29 ^th April, 19990 was enclosed therewith. The papers were also served on the fifth and sixth named plaintiffs under cover of letter dated the 29 ^th April, 1999. The taxation was heard on the 17 ^th May, 1999. Bula was represented at the hearing by Stephen Daly of Connolly Lowe, Legal Costs Accountants. On the 16 ^th June, 1999, objections to the allowances made on foot of the Bill of Costs were lodged. A hearing took place in respect of those objections on the 19 ^th July, 1999, with Mr. Daly again representing Bula. A ruling was issued on the 30 ^th July, 1999. At that point an application was made for an...