Sean Dunne (A Bankrupt) v Michael Ian Larkin Official Assignee and Christopher Lehane Former Official Assignee and Clark Hill Solicitors for the Office of the Official Assignee

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Liam Kennedy
• Judgment Date: 03 December 2024
• Neutral Citation: [2024] IEHC 685
• Docket Number: Bankruptcy No. 2478

In the Matter of Sean Dunne a Bankrupt

Between

Sean Dunne (A Bankrupt)

Applicant

and

Michael Ian Larkin Official Assignee and Christopher Lehane Former Official Assignee and Clark Hill Solicitors for the Office of the Official Assignee

Respondents

[2024] IEHC 685

Bankruptcy No. 2478

THE HIGH COURT

BANKRUPTCY

Bankruptcy – Official assignees – Appointments – Applicant seeking to challenge the validity of the respective appointments of the first and second respondents as Official Assignee in Bankruptcy – Whether the route which the applicant had sought to pursue was procedurally flawed

Facts: The applicant, Mr Dunne, in a series of motions, sought to probe and challenge the validity of the respective appointments of the first and second respondents, Mr Larkin and Mr Lehane, as Official Assignee in Bankruptcy. The details of the applicant’s seven motions were as follows: (a) his original motion sought orders requiring the disclosure of the first and second respondents’ “appointment documents pursuant to statute and the Constitution” and declarations that they were not validly appointed as Official Assignee in his bankruptcy - the solicitors representing the office of the Official Assignee had also been named as respondents to the matter; (b) in the second motion, he applied as next friend, seeking to join his three minor children as co-applicants, and the third motion sought orders directing (i) access to the court/bankruptcy file in Lehane v Wymes [2021] IEHC 427 relating to another bankrupt who queried the validity of the appointment of the Official Assignee, (ii) the production of a redacted copy of the first respondent’s contract of employment as Official Assignee, and (iii) proof as to when certain documents allegedly evidencing the first and second respondents’ respective appointments were generated; (c) the fourth and fifth motions sought to compel (i) the first respondent’s attendance for cross-examination, and (ii) Mr McNaughton to produce his appointment documents as sole Director of Insolvency Service of Ireland (and a declaration that he was not validly appointed in compliance with the applicable statutory appointment procedure; (d) his sixth motion sought (i) to join the Minister for Justice as a party to the original motion, (ii) to compel the Minister to produce documents relating to the respondents’ purported appointments, and (iii) a declaration that the Minister had breached her statutory and constitutional duties in failing to properly appoint the respondents to the Office of Official Assignee; (e) his seventh motion sought an order that Kennedy J recuse himself from the proceedings; (f) in addition, the applicant issued/intimated an intention to issue a further application seeking to join the Attorney General to the original motion/proceedings.

Held by the High Court (Kennedy J) that the route which the applicant had sought to pursue was procedurally flawed and contrary to the Rules of the Superior Courts. Kennedy J held that if the applicant wished to challenge the first and second respondents’ respective appointments as Official Assignee, he should institute appropriate proceedings to that end, joining all relevant and necessary parties (and only those parties) and setting out the facts and matters relied upon as entitling him to the reliefs sought. Kennedy J held that the applicant could not proceed by way of motion in the proceedings concerning the administration of his personal bankruptcy estate.

Kennedy J held that all seven of the applicant’s motions must be dismissed.

Motions dismissed.

JUDGMENT of Mr Justice Liam Kennedy delivered 3rd December 2024 .

Introduction

1 . In a series of motions, the Applicant seeks to probe and challenge the validity of the First and Second Respondent's respective appointments as Official Assignee in Bankruptcy. Notwithstanding the inflammatory language employed (describing them as “imposters”) and the fact that his affidavits and submissions are not always clear as to the basis for his allegations, the gist of his claim appears to be his assertion that the appointments were not validly effected, because, he says, such appointments were not duly made by the Minister for Justice (“the Minister”) and because they were not evidenced by a formal warrant of appointment. The Applicant's position in this regard appears to be premised on differences in the procedures and documentation employed as between the appointments of the First and Second Respondents (and also as compared to the procedure employed on the appointment of their predecessor). The Applicant also appears to assert, on grounds that have not been fully articulated, that the procedures used, or legislation relied upon to effect such appointments were unconstitutional. The Respondents reject the Applicant's allegations on both factual and legal grounds, apparently contending that the appointments were duly effected and also that the necessary procedures changed over the years. The issue as to the requirements in respect of the appointment of the Official Assignee in Bankruptcy was touched upon in one High Court judgment (as appears at para. 49 below) but it does not appear to have been the subject of a binding judicial determination.

2 . This judgment deals with the Respondents' application to strike out six motions issued by the Applicant and my earlier decision to reject a seventh, which called on me to recuse myself from dealing the matter. For the reasons set out below, I consider that the six motions must also be dismissed. The route which the Applicant has sought to pursue is procedurally flawed and contrary to the Rules of the Superior Courts. If the Applicant wishes to challenge the First and Second Respondents' respective appointments as Official Assignee, he should institute appropriate proceedings to that end, joining all relevant and necessary parties (and only those parties) and setting out the facts and matters relied upon as entitling him to the reliefs sought. He cannot proceed by way of motion in the proceedings concerning the administration of his personal bankruptcy estate.

The Seven Applications

3 . The details of the Applicant's seven (plus) motions are as follows:

• a. His original 26 July 2024 Motion, to which the others relate (“the Original Motion”) seeks orders requiring the disclosure of the First and Second Respondents' “appointment documents pursuant to statute and the Constitution” and declarations that they were not validly appointed as Official Assignee in his bankruptcy. The solicitors representing the office of the Official Assignee have also been named as respondents to the matter.

• b. His second and third motions both issued on 27 August 2024: In the second motion (“the Children's Motion”) he applies as next friend, seeking to join his three minor children's as co-applicants; the third motion (“the Further Disclosure Motion”) seeks orders directing: (i) access to the court/bankruptcy file in Lehane v. Wymes [2021] IEHC 427 (“ Wymes”) relating to another bankrupt who queried the validity of the appointment of the Official Assignee; (ii) the production of a redacted copy of the First Respondent's contract of employment as Official Assignee; (iii) proof as to when certain documents allegedly evidencing the First and Second Respondents' respective appointments were generated.

• c. The fourth and fifth motions, both issued on 4 October 2024, seek to compel; (i) the First Respondent's attendance for cross-examination (“the Cross-Examination Motion”) (ii) Mr McNaughton to produce his appointment documents as sole Director of Insolvency Service of Ireland (and a declaration that he was not validly appointed in compliance with the applicable statutory appointment procedure (“the ISI Motion”).

• d. His sixth, 18 October 2024, motion seeks: (i) to join the Minister for Justice as a party to the Original Motion; (ii) to compel the Minister for Justice to produce documents relating to the Respondents' purported appointments; (iii) a declaration that the Minister has breached her statutory and constitutional duties in failing to properly appoint the Respondents to the Office of Official Assignee;

• e. His seventh, 23 October 2024, Notice of Motion sought an order that I recuse myself from the proceedings.

• f. In addition, the Applicant has issued/intimated an intention to issue a further application seeking to join the Attorney General to the Original Motion/proceedings.

History of the Bankruptcy Proceedings

4 . The Applicant was adjudicated a bankrupt in Ireland by the High Court on 29 July 2013 on foot of a creditor's petition issued in February 2013. In the meantime, the Applicant had himself filed for bankruptcy in the United States on 29 March 2013 (after the filing of the Irish petition but before its hearing). The Applicant's challenges to the Irish adjudication were dismissed by the Irish Supreme Court.

5 . The High Court extended the Irish bankruptcy on 2 October 2018 for fourteen years and nine months due to the Applicant's non-cooperation. This was virtually the maximum possible extension (save for a modest deduction to take account of the Applicant's advanced years). The Respondents say that the imposition of the longest extension in the State's history reflected the Applicant's obstructive behaviour. He is due to be discharged on 29 April 2028.

6 . The Applicant's bankruptcy proceedings were evidently vigorously litigated between 2013 and 2018. The order extending the bankruptcy illustrates the complexity of that litigation. It appears from the order that the motion was before the Court on circa 29 occasions between 20 June 2016 and April 2018, including being at hearing on 10 – 13, 17 – 18, 25 and 27 April 2018, that circa 17 affidavits were filed; circa 7 notices for cross-examination were served. However, there is no suggestion that the Applicant previously raised the issue which underpins the...