Bula Ltd ((in Receivership)) and Others v Laurence Crowley and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy
• Judgment Date: 10 June 2005
• Neutral Citation: [2005] IEHC 212
• Court: High Court
• Date: 10 June 2005

[2005] IEHC 212

THE HIGH COURT

No. 9589 P/2003

BULA LTD (IN RECEIVERSHIP) & ORS v CROWLEY & ORS

BETWEEN/

BULA LIMITED (IN RECEIVERSHIP), BULA HOLDINGS, RICHARD WOOD AND MICHAEL WYMES

PLAINTIFFS

AND

LAURENCE CROWLEY, KPMG (A FIRM), TARA MINES LIMITED, OUTOKUMPU OY, NORTHERN BANK FINANCE CORPORATION LIMITED, ULSTER INVESTMENT BANK LIMITED, ALLIED IRISH INVESTMENT BANK LIMITED AND NAVAN MINING PUBLIC LIMITED COMPANY

DEFENDANTS

RSC 0.19 r28

COMPANIES ACT 1963 316(a)

STATUTE OF LIMITATIONS 1957

CITY OF DUBLIN v BUILDING & ALLIED TRADE UNION 1996 1 IR 4681996 2 ILRM 547

EDENFELL HOLDINGS LTD, RE 1999 1 IR 443

GALVIN v GRAHAM-TWOMEY 1994 2 ILRM 315

CLARE CO COUNCIL v MAHON 1995 3 IR 1931996 1 ILRM 521

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425

BARRY v BUCKLEY 1981 IR 306

CRINDLE INVESTMENTS v WYMES 1998 4 IR 567

MIN FOR AGRICULTURE v LEIPZIGER 2000 4 IR 322001 1 ILRM 519

SWEENEY v BUS ATHA CLIATH (DUBLIN BUS) & ORS 2004 1 IR 588

HOLOHAN v FRIENDS PROVIDENT 1966 IR 1

MCGOWAN v GANNON 1983 ILRM 516

STANDARD CHARTERED BANK v WALKER 1983 ILRM 516

DOWNSVIEW NOMINEES LTD v FIRST CITY CORP 1993 AC 295

MEDFORTH v BLAKE 2000 CH 86

NIGHT v LAWS 1993 BCLC 215

DALTON & RYAN v FLYNN UNREP HIGH COURT LAFFOY 20.5.2004

FLYNN v O'MALLEY UNREP HIGH COURT O'CAOIMH 24.7.2002 2002/11/2621

JOHNSON v GORE WOOD 2002 2 AC 1RSC O.19 r22

KIELY v CREATIVE LABS (IRL) LTD & BENKOVSKA UNREP SUPREME 16.6.2002 2002/14/3517

RSC O.19(5)(2)KENNY v TRINITY COLLEGE DUBLIN 2001 1 IR 565

P(L) v P(M) 2002 1 IR 219

TASSAN DIN v BANCO AMBROSIANO 1991 IR 569

AMPTHILL PEERAGE, RE 1977 AC 547

HENDERSON v HUDSON 15 WR 860

BRIDGEMAN v KILCOCK TRANSPORT LTD UNREP KEANE J 27.1.1995 1995/1/274

MCHUGH v UNION BANK OF CANADA 1913 AC 299

HENDERSON v HENDERSON 1843 3 HARE 100

CARROLL v RYAN 2003 1 IR 3092003 2 ILRM 1

PRACTICE AND PROCEDURE

Abuse of process

Plenary proceedings - Whether issues res judicata - Whether proceedings abuse of process - Pleadings - Whether allegations fully particularised - Whether dates and items of fact necessary - Whether particularisation can await discovery - Rules of the Superior Courts 1986 (SI 15/1986), O 19, rr 22 and 28 - Galvin v Grehan-Twomey [1994] 2 ILRM 315; Tassan Din v Banco Ambrosiano [1991] 1 IR 569; P(L) v P(L) [2002] 1 IR 219; Kenny v University of Dublin (Unrep, SC, 20/6/2003) followed; Kiely v Creative Labs (Unrep, SC, 19/6/2002) distinguished - Proceedings dismissed (2003/9589P - Murphy J - 10/06/2005 [2005] IEHC 212 - Bula Ltd. v Crowley

Facts: The fifth, sixth and seventh defendants (the bank defendants) applied for orders dismissing the proceedings as an abuse of process and/ or that they were frivolous and vexatious and disclosed no reasonable cause of action. The defendants argued that the plaintiffs' proceedings relied on vague and unparticularised grounds and sought to re-open final judgments.

Held by Murphy J. in making an order dismissing the proceedings as constituting an abuse of process and an order restraining the plaintiffs and each of them from instituting any further proceedings against the defendants without prior leave of the court that all of the plaintiffs' claims had already been dealt with by the courts and were res judicata.

Reporter: RW.

1 Judgment of Mr. Justice Murphy dated 10th June, 2005 .

1. Application and Pleadings

1.1 Notice of Motion

2 The fifth, sixth and seventh named defendants (the bank defendants) applied by way of separate motions dated 16th August, 2004, 19th October, 2004 and 28th October, 2004, for the following substantive reliefs:

3 (a) An order dismissing the within proceedings as constituting an abuse of the process of this Honourable Court.

4 (b) Further or alternatively, and order pursuant to O. 19, r. 28 of the Rules of the Superior Courts dismissing the within proceedings on the grounds that same are frivolous and vexatious and/or disclose no reasonable cause of action against the fifth, sixth and seventh named defendants.

5 (c) An order restraining the plaintiffs and each of them from instituting any further proceedings against the fifth, sixth and seventh named defendants without prior leave of this Honourable Court.

1.2 Plenary Summons

6 The plenary summons, dated 19th August, 2003 sought the following reliefs:

As against all the defendants:

7 (1) Damages for negligence

8 (2) Damages for unlawful interference with the economic interests of the plaintiffs and each of them.

9 As against the receiver, the first named defendant:

10 (3) Damages for breach of duty.

11 (4) Damages for misrepresentation and/or negligent misstatements.

12 (5) Damages for breach of contract.

13 (6) A declaration that the receiver, the first defendant, has purported to sell the property known as Bula Mine as Nevinstown, Navan, County Meath, in breach of duty.

14 (7) A declaration that the first defendant was and is prohibited from acting as receiver and manager.

15 (8) An injunction restraining the first named defendant from dealing with the proceeds of the purported sale pending the determination of these proceedings.

16 As against KPMG, the second defendant:

17 (9) Damages for breach of contract.

18 (10) Damages for misrepresentation and/or negligent misstatements.

19 As against the receiver and Tara Mines Limited:

20 (11) An order setting aside the contract dated 9th May, 2001, made between the receiver and Tara Mines Limited.

21 (12) An order setting aside any conveyance between the receiver and Tara Mines Limited pursuant to any purported completion of the contract dated 9th May, 2001.

22 (13) An order setting aside any conveyance pursuant to any purported completion of the contract.

23 As against Tara Mines:

24 (14) A declaration that Tara Mines has no good title to the property.

25 (15) An injunction restraining Tara Mines from exercising and/or asserting any rights as purchaser under the purported conveyance pending the determination of these proceedings.

26 (16) An injunction directing that Tara Mines refrain from entering onto, into or under, or extracting minerals from the property.

27 As against Outokumpu Oy, Northern Bank Finance Corporation Limited

28 2 (NBFC) and Ulster Investment Bank Limited (UIB:

29 (17) Damages for breach of duty and negligence.

30 As against all defendants excepting Outokumpu Oy:

31 (18) Damages for unlawful interference with and obstruction of the course of justice.

32 As against Navan Mining plc (Navan):

33 (19) A declaration that Navan had an interest in the security, pursuant to which the receiver purported to sell the property to Tara Mines Limited.

34 (20) A declaration that Navan was an intended beneficiary pursuant to the contract between the receiver and Tara, dated 9th May, 2001.

35 (21) An order directing that all necessary accounts and enquiries be taken.

1.3 Statement of Claim

36 The statement of claim, extending to 52 pages, was delivered over a year later on 29th November, 2004. The reliefs claimed were extended to include a claim against all defendants for a declaration that certain judgments and orders of the Supreme Court and the High Court had been obtained in circumstances of concealment of information and/or fraud and ought to be set aside. The proceedings referred to were Supreme Court Appeal No. 185/02 and the High Court, 2002/108 COS In The Matter of Bula Limited (in Receivership) and In The Matter of the Companies Acts, 1963–2001 and In The Matter of an Application by Laurence Crowley, the Receiver of Bula Limited, and related proceedings.

37 The claims against Outokumpu Oy and NBFC and UIB were recast as against NBFC, UIB and allied Irish Investment Bank Limited (AIIB) only.

38 The claims for damages for unlawful interference and obstructions against all defendants excepting Outokumpu Oy were omitted. In their place the following relief was sought:

39 (xix)(a) A declaration that the judgments and orders of the Supreme Court and High Court in the proceedings entitled:

40 The High Court 1986/66 24 P, Bula Limited (In Receivership)

41 Bula Holdings, Thomas C. Roche, Thomas J. Roche, Richard Wood and Michael Wymes. Plaintiffs.

42 and

43 Laurence Crowley, NBFC, UIB, AIIB, McKay and Schnellman Limited. Defendants.

44 Having been obtained in circumstances of concealment of information from the court and/or fraud ought to be set aside.

45 Further relief was sought against all the defendants in the following terms:

46 As against all defendants:

47 (xx)(a) Damages for wrongful interference with and obstruction of the just and proper prosecution of the proceedings described in the statement of claim herein as the Bank proceedings in the section 316(a) application;

48 (b) a declaration that all the defendants (excepting Outokumpu Oy) failed to make proper disclosure to the courts of facts and matters necessary to the justice and integrity of the hearing of the proceedings described in the statement of claim herein as the Bank proceedings in the section 316(a) application, thereby causing or bringing about wrongful interference and obstruction of the proper prosecution of the aforesaid proceedings.

49 The Bank proceedings appear to be those referred to above (The High Court, 1986, 6624 P) and the related appeal to the Supreme Court.

50 The claim against Navan for a declaration that it had an interest in the security on foot of which the receiver was appointed was extended to "an interest and/or involvement in the security". The claim for a declaration that the s. 316(a) proceedings (185/02) and the Bank proceedings (1986/6624 P) be set aside on the grounds of concealment of information and/or fraud would appear to be the substance of the proceedings which the present motion seeks to set aside.

2. Grounding affidavits

51 2...