Dowling and Others v Min for Finance & Irish Life & Permanent Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 May 2012
• Neutral Citation: [2012] IESC 32
• Court: Supreme Court
• Date: 24 May 2012

Dowling & Ors v Min for Finance & Irish Life & Permanent plc

[2012] IESC 32

In the Matter of Irish Life & Permanent plc

And In the Matter of the Credit Institutions (Stabilisation) Act, 2010

And In the Matter of an application by the Minister for Finance for Direction Order in relation to Irish Life & Permanent plc pursuant to s.9 of the Credit Institutions (Stabilisation) Act, 2010 and Ancillary Orders

Between/

Gerard Dowling, Padraig McManus, Piotr Skoczylas and Scotchstone Capital Fund Limited

Applicants/Appellants

and

The Minister for Finance

Respondent

and

Irish Life & Permanent plc

Notice Party/Respondent

Tibor Neugebauer

Dowling & Ors v Min for Finance & Irish Life & Permanent plc

and

John Paul McGann

and

Georg Haug

and

Dowling & Ors v Min for Finance & Irish Life & Permanent plc

J. Frank Keohane

[2012] IESC 32

Denham C.J.

Hardiman J.

Clarke J.

[Appeal No: 185/2012]

[Appeal No. 186/2012]

[Appeal No. 187/2012]

[Appeal No. 188/2012]

[Appeal No. 193/2012]

THE SUPREME COURT

Litigation – Practice and procedure – Case management directions – Discovery and interrogatories – Service on Attorney General – Linkage issues – Whether trial directions prejudicial and ought to amended – Credit Institutions (Stabilisation) Act, 2010 – European Convention on Human Rights Act, 2003 – Rules of the Superior Courts, 1986.

Facts The proceedings concerned an application by the Minister for Finance to invoke the provisions of the Credit Institutions (Stabilisation) Act, 2010 whereby the Minister would purchase the life assurance business of the notice party. It was the Minister”s case that this measure was necessary in order that the notice party would meet its regulatory requirements. The applicants were opposed to such a measure and had sought to challenge the Minister”s actions. As part of the litigation Kearns P. in the High Court had made a number of case management orders. The applicants appealed to the Supreme Court against certain aspects of the directions contending that the timescale imposed was unfairly prejudicial to their ability to present their case. In addition issues were also raised as to notifying of the Attorney General and the Human Rights Commission of the proceedings. Both the Minister and ILP placed reliance on submissions to the effect that an appellate court should be slow to interfere with case management directions made by the court of first instance.

Held by the Supreme Court (Clarke J delivering judgment) in dismissing the appeal: A trial court must retain a large measure of discretion over the directions which were appropriate. An appeal court would only intervene if it was demonstrated that a degree of irremediable prejudice would be created by the relevant case management directions which could not reasonably be expected be remedied by the trial judge. The specific timeline measures appealed against had already been the subject of concessions on behalf of the Minister. Although the applicants were lay litigants they could not expect to benefit to the extent of being permitted to conduct their proceedings in a way that would not be allowed to a represented party. The timeline had been adjusted to the maximum extent possible in favour of the lay applicants. In regard to the linkage issue it had not been established that the decision not to link particular cases was incorrect. Service of proceedings on the Attorney General did not require the leave of the court but was an obligation on the party concerned.

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S7(4)

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9A(1)(B)

PJ CARROLL & CO LTD & ORS v MIN FOR HEALTH & ORS 2005 1 IR 294

DOME TELECOM LTD v EIRCOM LTD 2008 2 IR 726 2007/15/3078 2007 IESC 59

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S1(1)

RSC O.36 r7

RSC O.36 r9

CORK PLASTICS (MANUFACTURING) & ORS v INEOS COMPOUND UK LTD & TIOXIDE EUROPE LTD UNREP CLARKE 7.3.2008 2008/8/1638 2008 IEHC 93

CORK PLASTICS (MANUFACTURING) & ORS v INEOS COMPOUND UK LTD & TIOXIDE EUROPE LTD 2011 1 IR 492 2008 1 ILRM 174 2007/11/2247 2007 IEHC 247

KALIX FUND LTD v HSBC INSTITUTIONAL TRUST SERVICES (IRL) LTD 2009 2 IR 581 2009/29/7216 2009 IEHC 457

RSC O.60

RULES OF THE SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/1999

RSC O.31

LONG v CONWAY UNREP DOYLE 25.7.1977 1977/5A/977

1. Introduction

2 1.1 The Minister for Finance ("The Minister”) has sought to invoke the provisions of the Credit Institutions (Stabilisation) Act, 2010 ("The Act"), in order to put in place an arrangement whereby the notice party ("ILP") sells its life assurance business, often colloquially referred to as Irish Life, to the Minister for a sum €1.3 billion. It is said by the Minister that this measure is necessary in order that ILP meet its regulatory requirements and the Minister and the State meet their obligations to the so called troika.

3 1.2 The applicants/appellants in each of these cases have challenged, in accordance with the Act, the Minister's actions. The challenge in each case is substantially on the same basis. It will be necessary to refer briefly to certain aspects of the statutory regime in due course.

4 1.3 In passing it should be noted that, with the exception of the fourth named applicant/appellant in appeal 185/2012, who appeared through counsel who confined himself to adopting the submissions of the third named applicant/appellant ("Mr. Skoczylas"), each of the applicants/appellants in each of the proceedings appeared in person. I will refer to the applicants/appellants in all of the cases collectively as the "lay applicants". In circumstances which I will outline in a little more detail all of these cases came to be managed before Kearns P. in the High Court. In the course of that case management process Kearns P. made a series of case management orders in each of the cases, on the 8 ^th May last, providing for the exchange of affidavits and legal submissions together with a direction that the substantive hearing was to commence on the 12 ^th June, 2012. I think it is fair to say that the directions made by Kearns P. were urged by the Minister (supported by ILP) based on what was said to be exceptional urgency

5 1.4 At a very general level the lay applicants are concerned that the timescale imposed by Kearns P. is unfairly prejudicial to their ability to present their case thus, on their submission, creating a risk of an unfair trial. In those circumstances the lay applicants have appealed to this Court against certain aspects of the directions order of Kearns P. This judgment is directed to the issues which arose on that appeal. I turn first to the procedural history of these proceedings insofar as it is relevant to the issues which this Court now has to decide.

2. Procedural History

2 2.1 On the 28 ^th March, 2012 the Minister made an application, ex parte, for a direction order in respect of a sale of the life assurance business of ILP to the Minister. The application was made under the Act. The application was grounded on a lengthy affidavit from a Mr. Torpey sworn on behalf of the Minister on the previous day, the 27 ^th March. The affidavit included a large amount of exhibits. The affidavit was subject to significant redaction. An unredacted version was subsequently made available to the lay applicants.

3 2.2 ILP did not actually consent to the direction order. However, ILP had been given prior notice of the terms of the proposed direction order in accordance with s.7(4) of the Act.

4 2.3 Under s.9A(1)(b) of the Act the deadline for the bringing of an application seeking the setting aside of a direction order is 14 calendar days which, in the circumstances, meant that any application for setting aside had to be brought by Friday 13 ^th April, 2012 which happened to be Good Friday. A number of separate applications were made within that time limit. The application made by Mr. Dowling and others was brought on the 3 ^rd April and was grounded on an affidavit of Mr. Skoczylas. Separate applications were made by Mr. McGann on the 11 ^th April, Mr. Neugebauer on the 12 ^th April and by Mr. Haug and Mr. Keohane on the 13 ^th April.

5 2.4 As originally issued in accordance with the directions of the Central Office the application in the name of Mr. Dowling and others and that brought by Mr. McGann had a return date of the 30 ^th April, 2012. The other applications were given a return date of the 14 ^th May, 2012.

6 2.5 However, on the 5 ^th April, 2012 ILP made an application ex parte, at that stage relating only to the Dowling proceedings being the only proceedings commenced at that time, seeking to be joined as a notice party. McCarthy J. made an order giving ILP leave to issue a notice of motion to that effect. ILP in fact issued a motion returnable for the 16 ^th April seeking to be so joined and also seeking to expedite the proceedings. In passing it should be noted that complaint is made about the fact that additional relief (beyond the matters considered by McCarthy J.) was included in the relevant motion. Indeed that complaint is made on behalf of the lay applicants in very strong terms. Unfortunately that complaint portrays a misunderstanding of the procedure. There is no need to obtain court leave to bring a motion seeking expedition as such. In the ordinary way any party to proceedings or a party who claims to be entitled to be joined to proceedings is entitled to bring a motion before the Court without leave provided that the motion properly arises under the Rules. The only reason why any application had to be made by ILP in this case was that its application arose during vacation time when there was no ordinary list available. There would have been no reason in...