Christopher D. Lehane in his Capacity as the Official Assignee in Bankuptcy v Michael Wymes (A Bankrupt)
| Jurisdiction | Ireland |
| Judge | Humphreys J. |
| Judgment Date | 02 July 2021 |
| Neutral Citation | [2021] IEHC 427 |
| Docket Number | [Bankruptcy No. 4549] |
| Court | High Court |
In the Matter of Section 85A of the Bankruptcy Act 1988 (As Amended)
[2021] IEHC 427
[Bankruptcy No. 4549]
THE HIGH COURT
BANKRUPTCY
JUDGMENT of Humphreys J. delivered on Friday the 2nd day of July, 2021
Among the real-life inspirations for the fictional case of Jarndyce v. Jarndyce in Charles Dickens' Bleak House (London, Bradbury & Evans, 1852–53), is said to be In re Jennens, which involved a series of cases regarding the estate of Willian Jennens, who died in 1798. Thus the matter had been ongoing for 54 years by the date of the novel's publication (see Patrick Polden, “Stranger than Fiction? The Jennens inheritance in fact and fiction” (2003) 32(3) & 32 (4) Common Law World Review 211 & 338). Admittedly, formal litigation only broke out in 1810 (Polden, p. 225), although in the end, the cases kept coming until 1933 (Polden, p. 247). The legal travails of the bankrupt here, and before that, of the company with which he was associated, Bula Ltd., have now been ongoing for over 50 years. So assuming that things maintain their current trajectory, we should be passing the Bleak House threshold by the middle of this decade.
Over that half-century, there are just too many Bula and Wymes cases and judgments to list. For example, the High Court Search website shows Mr. Wymes as a party in 45 sets of proceedings, plaintiff in 22 actions and defendant in 23. (This well out-classes the Jennens proceedings which involved a mere 17 cases: Polden p. 338.) So I will limit the procedural history to the highlights.
Bula Ltd. was formed over 50 ago in March 1971 for the purpose of land acquisition in relation to mineral exploitation. It was a company that was cradled in litigation because the first of the innumerable pieces of Bula-related litigation was initiated before the end of the year of its formation: see ( [1973] 4 JIC 1302 Roche v. Minister for Industry and Commerce Unreported, High Court, 13th April, 1973).
Bula Ltd. together with Mr. Richard Wood and Mr. Wymes began the substantive proceedings that have led directly to the present applications in 1986: Bula Ltd. v. Tara Mines Ltd. [1986 No. 10898 P]. Those proceedings were eventually dismissed by Lynch J. ( Bula Ltd. v. Tara Mines Ltd. [1997] IEHC 202, ( [1997] 2 JIC 0602 Unreported, High Court, 6th February, 1997)).
Lynch J. said at para. 1 of the judgment: “This case arises out of circumstances which commenced more than a quarter of a century ago. It has its origin in business dealings undertaken in the hopes of arriving at a very large crock of gold, which in the end of the day turned into a bottomless pit of debt and misery for those who most avidly sought the crock of gold. It is from that bottomless pit that the remaining Plaintiffs in this action hope by this litigation to escape.”
The version of the judgment on bailli.org includes a number of appendices which are not included in the justis.com version. Unless I am misreading the witness schedule set out in the bailli version of the judgment, the case lasted at least 276 days with Mr. Wymes spending 155 days in the witness box, 28 of those under cross-examination.
Following the dismissal of the substantive proceedings, Lynch J. made an order on 25th February, 1997 in favour of the relevant Minister of the Government who was a defendant in the substantive proceedings.
The decision of Lynch J. was then appealed to the Supreme Court [Supreme Court Record No. 1998 No. 7 SC].
On 31st July, 2003, a certificate of taxed costs was issued in the amount of €3,297,493.33 together with interest of €1,584,242.26, making a total sum of €4,881,735.59 in favour of the relevant Minister.
A bankruptcy summons issued on 9th February, 2009. McGovern J. dismissed that summons in Minister for Communications, Energy and Natural Resources v. M.W. [2009] IEHC 413, [2010] 3 I.R. 1.
A second bankruptcy summons was issued on 15th February, 2010 by order of Dunne J. That was served on 1st March, 2010.
Mr. Wymes brought an application to dismiss the bankruptcy summons on 15th March, 2010. That application was dismissed by McGovern J. in an ex tempore judgment on 29th April, 2010 followed by an order dated 6th May, 2010. Mr. Wymes then appealed to the Supreme Court on 28th May, 2010.
On 11th June, 2010, the petition of the Minister for Communications, Energy and Natural Resources was filed. As noted later in the Supreme Court's determination in this matter, the petition issued after the appeal of the application to dismiss the summons had been lodged in the Supreme Court, but before judgment on that appeal had been delivered.
On 9th July, 2010, an affidavit was filed by Mr. Wymes seeking the dismissal of the petition or alternatively a stay or an adjournment. By an ex tempore ruling of Dunne J., the petition was adjourned in light of the fact that the question of the dismissal of the summons was under appeal.
On 6th November, 2014 the Supreme Court made a final order striking out the appeal in the substantive underlying proceedings.
In Minister for Communications, Energy and Natural Resources v. Wood [2017] IESC 16, [2017] 3 JIC 0901 (Unreported, Supreme Court, Dunne J. (Denham C.J. and Charleton J. concurring), 9th March, 2017), the Supreme Court dismissed the appeal in respect of the High Court's refusal to dismiss the bankruptcy summons.
In Minister for Communications, Energy and Natural Resources v. Wood [2017] IESC 58, [2017] 7 JIC 2607 (Unreported, Supreme Court, Dunne J. (Denham C.J. and Charleton J. concurring), 26th July, 2017), the Supreme Court dealt with a further issue regarding interest that remained outstanding from the first judgment.
On foot of the Minister's petition, Meenan J. adjudicated Mr. Wymes bankrupt in Minister for Communications, Energy and Natural Resources v. Wymes [2018] IEHC 213, ( [2018] 3 JIC 2006 Unreported, High Court, 20th March, 2018).
Following that order, the bankrupt filed a notice to show cause against the validity of the adjudication pursuant to s. 16 of the Bankruptcy Act 1988 on 31st May, 2018. One of the major grounds was the allegation that no act of bankruptcy had occurred in the three months preceding the petition, reliance being placed on the fact that the validity of the bankruptcy summons was under appeal at that time.
The show-cause application was rejected by Pilkington J. in Minister for Communications, Energy and Natural Resources v. Wymes [2019] IEHC 245, ( [2019] 4 JIC 0503 Unreported, High Court, 5th April, 2019). The bankrupt then appealed to the Court of Appeal.
The Official Assignee then brought a motion under s. 85A(3) and (4) of the 1988 Act seeking an order extending the term of bankruptcy of the bankrupt, as well as an order directing the bankrupt to file a statement of affairs and a statement of personal information. That is one of the motions now before the court.
On 24th July, 2020, Mr. Christopher Lehane retired as Official Assignee. As of 27th July, 2020 Mr. Denis Ryan was designated Deputy Official Assignee. Mr. Michael Ian Larkin was appointed as Official Assignee under s. 60C of the 1988 Act on 16th November, 2020.
In Minister for Communications, Energy and Natural Resources v. Wymes [2020] IECA 182, [2020] 7 JIC 0704 (Unreported, Court of Appeal, Faherty J., (Kennedy and Ní Raifeartaigh JJ. concurring), 7th July, 2020), the Court of Appeal rejected the appeal against the dismissal of the show-cause application.
There was then a separate judgment as to costs ( Minister for Communications, Energy and Natural Resources v. Wymes [2020] IECA 274, [2020] 10 JIC 0601 (Unreported, Court of Appeal, Faherty J., (Kennedy and Ní Raifeartaigh JJ. concurring), 6th October, 2020)).
On 3rd November, 2020 the applicant applied to the Supreme Court for leave to appeal.
On 7th December, 2020, Mr. Lehane, as the original applicant, applied under O. 17, r. 4 to substitute Mr. Larkin (although the...
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