Emo Oil Ltd v Mulligan

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Dunne
Judgment Date13 Dec 2011
Neutral Citation[2011] IEHC 552

[2011] IEHC 552

THE HIGH COURT

[No. 538 P]
Emo Oil Ltd v Mulligan
BANKRUPTCY
IN THE MATTER OF A PETITION FOR ADJUDICATION OF BANKRUPTCY BY EMO OIL LIMITED, PETITIONING CREDITOR AGAINST EAMONN MULLIGAN DEBTOR

EEC REG 1346/2000 ART 16(1)

EEC REG 1346/2000 RECITAL 22

EEC REG 1346/2000 ART 16

EUROFOOD IFSC LTD, IN RE 2006 CH 508 2006 3 WLR 309 2006 AER (EC) 1078 2006 ECR I-3813 2006 BCC 397

EEC REG 1346/2000 ART 26

EEC REG 44/2001

BAMBERSKI v KROMBACH 2001 QB 709 2001 3 WLR 488 2001 AER (EC) 584 2000 ECR I-1935

REGIE NATIONALE DES USINES RENAULT SA v MAXICAR SPA & FORMENTO 2000 ECR I-2973 2000 ECDR 415

MARONIER v LARMER 2003 QB 620 2002 3 WLR 1060 2003 3 AER 848

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONVENTION ON JURISDICTION & THE ENFORCEMENT OF JUDGMENTS IN CIVIL & COMMERCIAL MATTERS (BRUSSELS CONVENTION) ART 27(2)

INTERDESCO SA v NULLIFIRE LTD 1992 1 LLOYDS 180 1992 ILPR 97

ADAMS & ORS v CAPE INDUSTRIES PLC & ANOR 1990 CH 433 1990 2 WLR 657 1991 1 AER 929

EEC REG 1346/2000 RECITAL 4

SHIERSON v VLIELAND-BODDY 2005 1 WLR 3966 2005 BCC 949 2006 2 BCLC 9 2006 ILPR 12 2005 EWCA CIV 974

CONFLICT OF LAWS

Jurisdiction

Insolvency - Application to recognise bankruptcy judgment made in foreign jurisdiction - Application to stay Irish bankruptcy proceedings - Prior ruling of court that bankruptcy adjudication by foreign court should not be recognised - Subsequent hearing on steps to be taken in Irish proceedings - Additional submissions on recognition of judgment - Whether exceptional case in which recognition should be refused - Public policy on recognition and enforcement of foreign judgments - Exceptions giving rise to refusal to recognise - Engaging of fundamental right of party - Right to apply for foreign bankruptcy to be set aside - Forum shopping - Centre of main interest - Whether issue of forum shopping gave rise to public policy issue permitting refusal to recognise foreign bankruptcy judgment - Emo Oil Ltd v Mulligan [2010] IEHC 543 (Unrep, Dunne J, 29/11/2010); Re Eurofoods IFSC Limited [2006] BCC 397; Bamberski v Krombach Case C-7/98 2000 ECR 1- 1935; Renault v Maxicar Case C-3811998, ECR 2000 I- 2973; Maronier v Larmer [2003] QB 620; Sainterdesco v Nullifire Limited [1993] 1 Lloyds Rep 180; Adams v Cape Industries plc [1991] 1 All ER 929 and Shierson v Vlieland-Boddy [2005] EWCA 974, [2005] 1 WLR 3966 considered - Council Regulation (EC) No 1346/2000, arts 16 and 26 - Proceedings adjourned with liberty to re-enter (538P - Dunne J - 13/12/2011) [2011] IEHC 552

Emo Oil Limited v Mulligan

Facts: The proceedings concerned an application to recognise a judgment of the High Court of Northern Ireland in which the debtor was adjudicated bankrupt and to have the proceedings stayed on the basis of Council Regulation EC 1346/2000. Judgment had been obtained against the debtor. The Court had previously ruled that the proceedings did not come within the provisions of the Insolvency Regulation. The Court had also concluded that the centre of main interests of the debtor was in the jurisdiction.

Held by Dunne J. that it was appropriate to stay the proceedings to permit the petition to apply to the Courts of Northern Ireland to set aside the order made in that jurisdiction. The Court would adjourn the proceedings generally with liberty to re-enter.

1

JUDGMENT of Ms. Justice Dunne delivered the 13 day of December 2011

2

This is an application to recognise a judgment of the High Court of Northern Ireland made on the 7 th July, 2010, in which the debtor was adjudicated bankrupt and to have bankruptcy proceedings in this jurisdiction stayed having regard to the provisions of Council Regulation (EC) No. 1346/2000 (The Insolvency Regulation).

3

It will be necessary to refer in due course to a previous judgment of this Court delivered herein on the 29 th November, 2010 in these proceedings. It is also necessary to set some of the background to this matter although the background was considered in some detail in the previous judgment of this Court.

4

The petitioner herein obtained judgment against the debtor in the sum of €235,001.68 on the 10 th February, 2009. That judgment was in respect of money due and owing by the debtor to the petitioner in respect of the supply of fuel and oil by the petitioner to the debtor for sale in his petrol station. A bankruptcy summons was issued on the 18 th May, 2009 and served on the debtor at Tateetra, Newtownbalregan, Co. Louth on the 30 th July, 2009, time for service of the summons having been extended.

5

Subsequent to the service of the bankruptcy summons, correspondence ensued between solicitors for the petitioner and solicitors for the debtor in an attempt to reach some form of compromise. The petitioner's solicitor sought information in regard to the debtor's financial position over the preceding years with a view to considering a proposal made by the debtor through his solicitors. As a result of this correspondence, the petitioner was furnished with a trading profit and loss account of the debtor and his tax returns for the previous five years. In the meantime, a bankruptcy petition was presented and given a return date of the 16 th November, 2009. Ultimately, after return dates were given on two occasions, a notice of appointment of solicitors was lodged on behalf of the debtor by the solicitors who had been corresponding on his behalf. The petition was then adjourned from time to time at the request of the debtor with the consent of the petitioner.

6

On the 14 th June, 2010, a further proposal was made by the debtor to the petitioner in respect of payment by instalment. It was also indicated that the debtor was attempting to refinance with a view to settling his liability to the petitioner. Although the petitioner was anxious to proceed at that stage, the matter was adjourned to allow the debtor the opportunity to refinance as, if he was successful, that would be in the interest of both parties. Accordingly the matter was adjourned until the 26 th July, 2010. Before the matter was listed before the court again on the 26 th July, 2010, the solicitors for the debtor, by letter of the 22 nd July, 2010, wrote to the petitioner solicitors stating that their client had been adjudicated a bankrupt in Northern Ireland. When the matter came before this Court on the 26 th July, 2010, the court was informed as to the fact that the debtor had been adjudicated bankrupt in Northern Ireland and an adjournment was sought by the petitioner to consider its options. The matter was then adjourned to the 18 th October, 2010.

7

Ultimately, two affidavits were furnished to the court by the debtor and submissions were furnished to the court and a hearing took place in which the issue of "the opening of proceedings" and the question of COMI was considered.

8

I ruled that the bankruptcy proceedings in this jurisdiction did not come within the definition of the opening of the proceedings within the meaning of the Insolvency Regulation. I also concluded that the centre of main interest of the debtor was in this jurisdiction and concluded that it was not appropriate to recognise the adjudication of the debtor as a bankrupt by the High Court of Northern Ireland given the circumstances. I invited the parties to furnish further submissions on what steps should be taken in the light of the judgment. It is in that context that counsel on behalf of the debtor averred that notwithstanding the judgment of this Court that, having regard to the Insolvency Regulation, this Court should recognise the adjudication of the debtor as a bankrupt and should stay any further proceedings in this jurisdiction.

9

The debtor swore two further affidavits following the judgment of the 29 th November, 2010. The first of these was sworn on the 25 th February, 2011 and the second was sworn on the 19 th April, 2011. In the first of these affidavits, the debtor pointed out that in an affidavit sworn in the Northern Ireland bankruptcy proceedings, he made known the fact that he was "involved in bankruptcy proceedings in the Republic of Ireland ..." He said that he had been advised that as the insolvency proceedings had been opened in Northern Ireland, the judgment opening proceedings there had to be recognised in this jurisdiction and that the proceedings here should be stayed. The second affidavit exhibited the file of his Northern Ireland solicitors in relation to his application in that jurisdiction.

10

Article 16(1) of the Insolvency Regulation provides as follows:-

"Any judgment opening insolvency proceedings handed down by a court of a Member State shall be recognised in all the other Member States from the time that it becomes effective in the State of the opening of proceedings."

11

Recital 22 of the Insolvency Regulation provides as follows:-

"This Regulation should be provided for immediate recognition of judgments concerning the...

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    ...to allow a court to conclude that there was no flagrant breach of the right to be heard. Thus, for example, in Emo Oil Ltd v. Mulligan [2011] IEHC 552, Dunne J. in the High Court refused to apply the public policy provisions of the 2000 Regulation in respect of a judgment given by the court......
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    ...in this country. 64 In the course of his judgment, Mac Eochaidh J. referred to the decision of Dunne J. in Emo Oil Ltd v. Mulligan [2011] IEHC 552, where she had stated as follows at para. 21:- “I think it can be seen from the authorities referred to above, that in general terms a decision ......

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