Dowling and Others v Min for Finance

JurisdictionIreland
JudgeMs. Justice Laffoy
Judgment Date02 July 2013
Neutral Citation[2013] IEHC 299
CourtHigh Court
Date02 July 2013
Dowling & Ors v Min for Finance
IN THE MATTER OF INJUNCTION TO RESTRAIN THE MINISTER FOR FINANCE FROM RE-SELLING IRISH LIFE GROUP LIMITED
AND IN THE MATTER OF SECOND COUNCIL DIRECTIVE 77/91/EEC
AND IN THE MATTER OF DIRECTIVE 2001/34/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
AND IN THE MATTER OF DIRECTIVE 2009/101/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
AND IN THE MATTER OF DIRECTIVE 2004/25/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
AND IN THE MATTER OF DIRECTIVE 2004/39/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
AND IN THE MATTER OF ARTICLE 63 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION
AND IN THE MATTER OF ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

BETWEEN

GERARD DOWLING, PADRAIG McMANUS, JOHN PAUL McGANN, TIBOR NEUGEBAUR, PIOTR SKOCZYLAS, MURIEL SCORER, GEORG HAUG AND J. FRANK KEOHANE
PLAINTIFFS

AND

THE MINISTER FOR FINANCE
DEFENDANT

[2013] IEHC 299

[No. 5683P/2013]

THE HIGH COURT

Commercial law – Injunction – European law – Delay – Sale of Insurance company by Minister for Finance – Locus standi – Balance of convenience – Whether damages adequate remedy – Whether appropriate to issue injunction – Credit Institutions (Stabilisation) Act, 2010 – Companies Act, 1963.

Facts The Minister for Finance had undertaken measures to recapitalise Permanent TSB plc pursuant to the requirements of the Central Bank of Ireland, the European Commission and the International Monetary Fund in consultation with the European Central Bank. As part of the re-organisation of the Irish banking sector the Minister undertook to sell the insurance business of the Permanent TSB group of companies. The plaintiffs were shareholders of Permanent TSB and had initiated proceedings seeking to prevent the sale. It was contended that the Minister had conducted affairs in a manner which was oppressive to them and in disregard of their interests as members. (An interlocutory injunction had already been refused in related section 205 proceedings). The plaintiffs sought a prohibitory injunction restraining the defendant from completing the sale of the company until certain conditions were met (mainly resolution of related court proceedings). Secondly the plaintiffs sought the referral of certain matters under Article 267 to the European Court of Justice. It was the contention of the plaintiffs that the Minister did not have title to sell the asset in question.

Held by Laffoy J in refusing the reliefs sought: The Minister in acquiring his shareholding in the company had subscribed €2.3 billion. The court was satisfied that for the purposes of the application the plaintiffs, or some of them, had standing to bring the application. It could be said that there were fair issues to be tried. If the injunction was to be granted and the pending sale was blocked, the Minister could sustain financial losses which the Minister would be unable to recoup from the plaintiffs. The plaintiffs would not be irreparably prejudiced by the court refusing to grant the injunction sought. The risk of injustice was minimised by refusing to grant the injunction sought and the balance of convenience favoured adopting that course. It was not necessary to make a reference to the Court of Justice under Article 267.

COMPANIES ACT 1963 S201

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 PART II

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11

DOWLING & ORS v MIN FOR FINANCE UNREP FEENEY 2.3.2012 2012/10/2639 2012 IEHC 89

DOWLING & ORS v MIN FOR FINANCE UNREP CHARLETON 21.2.2013 2013 IEHC 75

DOWLING & ORS v MIN FOR FINANCE UNREP PEART 28.6.2012 2012/10/2702 2012 IEHC 436

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S64

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S64(2)

CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S64(3)

COMPANIES ACT 1963 S205

DOWLING & ORS v COOK & ORS UNREP GILLIGANN 27.3.2013 2013 IEHC 129

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267

DOWLING & ORS v COOK & ORS UNREP SUPREME 16.5.2013 2013 IESC 25

CAUDRON & ORS v AIR ZAIRE 1985 IR 716 1986 ILRM 10 1985/4/992

RSC O.11

R v SECRETARY OF STATE FOR TRANSPORT, EX PARTE FACTORTAME LTD 1991 1 AER 70 1990 ECR I-2433 1990 3 CMLR 1

DOUGAN & ORS WYATT & DASHWOODS EUROPEAN UNION LAW 6ED 2011 303

ZUCKERFABRIK SUDERDITHMARSCHEN AG v HAUPTZOLLAMT ITZEHOE 1991 ECR I-415 1993 3 CMLR 1

ATLANTA FRUCHTHANDELSGESELLSCHAFT MBH & ORS v BUNDESAMT FUR ERNAHRUNG UND FORSTWIRTSCHAFT 1996 AER (EC) 31 1995 ECR I-3761 1996 1 CMLR 575

PRINGLE v GOVT OF IRELAND & ORS UNREP SUPREME 19.10.2012 2012/39/11518 2012 IESC 47

DOUGAN & ORS WYATT & DASHWOODS EUROPEAN UNION LAW 6ED 2011 305

UNIBET (LONDON) LTD v JUSTITIEKANSLERN 2008 AER (EC) 453 2007 ECR I-2271 2007 2 CMLR 30

KIRWAN INJUNCTIONS: LAW & PRACTICE 2008 PARA 10.95

REWE ZENTRALFINANZ EG v LANDWIRTSCHAFTSKAMMER FUR DAS SAARLAND 1977 1 CMLR 533 1976 ECR 1989

CAMPUS OIL LTD & ORS v MIN FOR INDUSTRY & ORS (NO 2) 1983 IR 88 1984 ILRM 45

B & S LTD v IRISH AUTO TRADER LTD 1995 2 IR 142 1995 2 ILRM 152 1995/1/201

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012/37/10891 2012 IESC 49

COMPANIES ACT 1963 S205(3)

FOSS v HARBOTTLE 67 ER 189 1843 2 HARE 461

DELANY EQUITY & THE LAW OF TRUSTS IN IRELAND 5ED 2011 524

SPRY THE PRINCIPLES OF EQUITABLE REMEDIES: SPECIFIC PERFORMANCE INJUNCTIONS RECTIFICATION & EQUITABLE DAMAGES 8ED 2010 43

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S5

EEC DIR 77/91 ART 8(1)

EEC DIR 77/91 ART 25(1)

EEC DIR 77/91 ART 29(1)

EEC DIR 2009/101 ART 10

EEC DIR 2001/34 ART 5

EEC DIR 2001/34 ART 42

EEC DIR 2001/34 ART 45

EEC DIR 2004/39 ART 42

EEC DIR 2004/25 ART 3

TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 63

EEC DIR 77/91 ART 42

EEC DIR 2004/39 ART 14(4)

Proceedings and application in outline
1

1. These proceedings, which were initiated by a plenary summons which was issued on 5 th June, 2013, relate to issues which already have been, or are being, litigated by the plaintiffs, or some of them, as applicants or plaintiffs in five separate proceedings in the High Court, in some of which there are defendants in addition to the defendant in these proceedings (the Minister). None of the plaintiffs in these proceedings has legal representation.

2

2. The application to which this judgment relates is an application for interlocutory injunctive relief, which was initiated by a notice of motion which the plaintiffs were given leave to issue on 5 th June, 2013. The principal affidavits relied on by the plaintiffs on the application were sworn by the fifth plaintiff (Mr. Skoczylas). As has happened previously in related proceedings, as I understand it, at the hearing of the application Mr. Skoczylas made submissions to the Court on behalf of all of the plaintiffs. At the end of those submissions, the first plaintiff (Mr. Dowling), the second plaintiff (Mr. McManus), and the third plaintiff (Ms. Scorer) made short additional submissions to the Court.

3

3. In broad terms, the complaints of the plaintiffs, each of whom is a shareholder in Permanent TSB Group Holdings plc (Holdings), in respect of which they seek redress in these proceedings and in the related proceedings arise from actions taken by the Minister to recapitalise Permanent TSB plc (the Bank), which is a wholly owned subsidiary of Holdings, pursuant to the requirements of the Central Bank of Ireland and the obligations of the State to the Commission of the European Union (the Commission) and the International Monetary Fund in consultation with the European Central Bank, being collectively colloquially known as "the Troika", and from subsequent actions taken by the Minister.

4

4. Before outlining the nature of the injunctive relief which the plaintiffs seek on this application, it is necessary to outline the relevant events in relation to Holdings and the Bank since 2009 to put the application into its factual and procedural context.

Factual and procedural context
5

5. The corporate structure of which Holdings and the Bank are part came into existence as a result of a scheme of arrangement which was sanctioned by order of the High Court (Clarke J.) on 11 th January, 2010 pursuant to s. 201 of the Companies Act 1963 (the Act of 1963) in relation to a listed company then known as Irish Life & Permanent plc. The detail of the scheme of arrangement is not of relevance to the issues on the application before the Court. Suffice it to say that thereafter Holdings (by its then name Irish Life & Permanent Group Holdings plc) replaced the Bank (by its then name Irish Life & Permanent plc) at the top of the corporate structure and the existing shareholders of the Bank became shareholders of Holdings. The Bank became a wholly owned subsidiary of Holdings. Holdings subsequently became listed on the Enterprise Securities Market of the Irish Stock Exchange. The life assurance business of the Permanent TSB group (formerly the Irish Life & Permanent group) was at all material times, and is, carried out through the medium of Irish Life Group Limited (the Company) and its subsidiaries. The Bank was at all material times prior to 29 th June, 2012 the sole shareholder in the Company.

6

6. In line with the obligations of the State referred to earlier, the Credit Institutions (Stabilisation) Act 2010 (the Act of 2010) was enacted. As the beginning of the long preamble to that Act indicates, it was enacted to make provision, in the context of the National Recovery Plan 2011 - 2014 and the European Union/International Monetary Fund Programme of financial support for Ireland, in relation to the stabilisation and the preservation or restoration of the financial position of certain credit institutions. Part 2 of the Act of 2010, which is headed "Direction Orders", was subsequently deployed by the Minister to propose and obtain,...

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4 cases
  • Gerard Dowling and Others v Minister for Finance and Others
    • Ireland
    • Supreme Court
    • July 31, 2013
    ...delay in bringing the application did not have to be determined. Appeal dismissed DOWLING & ORS v MIN FOR FINANCE UNREP 16.7.2013 2013 IEHC 299 COMPANIES ACT 1963 S205 TREATY ON FUNCTIONING OF EUROPEAN UNION ART S267 CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9 CAMPUS OIL LTD v MIN FOR I......
  • Gerard Dowling and Others v Alan Cook and Others
    • Ireland
    • High Court
    • August 23, 2013
    ...proper course is to treat the 2012 Application as not having finally been determined, as I did in Dowling & Ors. v. Minister for Finance [2013] IEHC 299 (at para. 9), those proceedings having been initiated on the day after the application to which this judgment relates was heard. 13 (c) Th......
  • Dowling v Minister for Finance
    • Ireland
    • Court of Appeal (Ireland)
    • November 8, 2022
    ...relief to prevent the resale in what I will call “the injunction proceedings”. That relief was initially refused in the High Court [2013] IEHC 299 (Laffoy J.) and an appeal to the Supreme Court was dismissed [2013] IESC 37 (Clarke J., nem diss.). This, it might be thought, rendered this app......
  • Dowling and Others v The Minister for Finance; Neugebauer v The Minister for Finance; Keohane v The Minister for Finance; McGann v The Minister for Finance
    • Ireland
    • Court of Appeal (Ireland)
    • July 31, 2023
    ...attempted, unsuccessfully, to obtain interlocutory relief to prevent that sale – see decision of the High Court (Laffoy J.) reported at [2013] IEHC 299, and the decision of the Supreme Court reported at [2013] IESC 37 dismissing an appeal (Clarke J. nem 80 . Accordingly a stay of this court......

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