G and Another v M.R and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Cregan
• Judgment Date: 28 July 2023
• Neutral Citation: [2023] IEHC 558
• Court: High Court
• Docket Number: 2023/1818 P

Between

G

and

S.P. Limited

Plaintiffs

and

M.R.

and

A.M.

and

L.S.

Defendants

[2023] IEHC 558

2023/1818 P

THE HIGH COURT

Interlocutory relief – Revisiting judgment – Exceptional circumstances – First plaintiff asking the High Court to revisit an ex tempore judgment it gave in the matter – Whether the first plaintiff had put forward strong reasons or exceptional circumstances which would require that the High Court should revisit or amend its judgment

Facts: The High Court (Cregan J), on 16th May 2023, heard an application for an interlocutory injunction brought by the first and second plaintiffs against all three defendants. The hearing lasted most of the day. The first and second defendants objected that the first plaintiff had no legal authority to represent the second plaintiff, a company owned and/or controlled by him. The first plaintiff said that he did. Cregan J delivered an ex tempore judgment on that issue holding against the first plaintiff. As most of the interlocutory reliefs sought in the Notice of Motion were sought by the company, Cregan J struck out those reliefs as against all defendants. That left three interlocutory reliefs which the first plaintiff was seeking against the third defendant. Cregan J refused those reliefs in a second ex tempore judgment. Cregan J also decided the issue of costs. A few days later, the first plaintiff appeared in court before Cregan J on an ex parte basis with an application to ask Cregan J to revisit his ex tempore judgment. As the order had not yet been perfected, Cregan J directed the first plaintiff to put all parties on notice of the application and fixed a date for the hearing of the application for 20th June, 2023. Cregan J also directed that a copy of the DAR of the hearing of the matter on 4 May, 2023 (when the matter was in the Chancery call-over list) and of the hearing of 16th May, 2023 be transcribed and a copy of the transcript be made available to all parties. This was, in part, because the first plaintiff had made certain criticisms of the manner in which the case had been heard and made an application to ask Cregan J to recuse himself. At the hearing on 20th June, 2023, when Cregan J explained how the case had come to be listed before him, and related matters, the first plaintiff withdrew his application that Cregan J should recuse himself. That left only the substantive issue of whether the court should revisit its judgment of 16 May, 2023. The first argument of the first plaintiff was that Cregan J should “amplify” his reasoning as to why s. 41 of the Companies Act 2014 did not apply. The first plaintiff also relied on Article 7 of EU Directive 2009/102 EC Company Law on Single Member Private Limited Liability Companies. The first plaintiff submitted that, if necessary, a reference should be made to the CJEU for a preliminary ruling to decide whether the rule in Battle v Irish Art Promotion Centre Limited [1968] IR 252 is compatible with Article 7. The first plaintiff also submitted that Cregan J’s ex tempore judgment did not address an argument which the first plaintiff had advanced which was that he had a fiduciary duty to the company. The first plaintiff also sought to submit that the rule in Battle was incompatible with Article 19 TEU. The first plaintiff also submitted that the High Court has an obligation to disapply any rule of national law which contravenes EU law.

Held by Cregan J that all of those arguments were without merit. Cregan J held that they were, in substance, an impermissible collateral attack on the Supreme Court decision in Gaultier v The Registrar of Companies and Others [2019] IESC 89. As such, Cregan J held that those arguments were not only wrong in law and misconceived, they were also an abuse of process. In the circumstances, Cregan J was satisfied that first plaintiff had not put forward any “strong reasons” or “exceptional circumstances” which would require that Cregan J should revisit or amend his judgment in any way.

Cregan J refused the application.

Application refused.

JUDGMENT of Mr. Justice Cregan delivered on the 28 day of July, 2023 .

Introduction

1 . This is an unusual application in which Mr. G. has asked me to revisit an ex tempore judgment I gave in this matter. On 16 ^th May 2023, I heard an application for an interlocutory injunction brought by the first and second named plaintiffs against all three defendants. The hearing lasted most of the day. The first and second named defendants objected that the first named plaintiff, Mr. G., had no legal authority to represent the second named plaintiff, S.P. Limited, a company owned and/or controlled by him. Mr. G. said that he did. I delivered an ex tempore judgment on that issue holding against Mr. G. As most of the interlocutory reliefs sought in the Notice of Motion were sought by the company, I struck out those reliefs as against all defendants. That left three interlocutory reliefs which Mr. G. was seeking against the third defendant. I refused those reliefs in a second ex tempore judgment. I also decided the issue of costs. I thought that was end of the matter – as far as the High Court was concerned.

2 . However, a few days later, Mr. G. appeared in court before me on an ex parte basis with an application to ask me to revisit my ex tempore judgment. As the order had not yet been perfected, I directed Mr. G. to put all parties on notice of this application and fixed a date for the hearing of this application for Tuesday 20 ^th June, 2023.

3 . I also directed that a copy of the DAR of the hearing of the matter on 4 May, 2023 (when the matter was in the Chancery call-over list) and of the hearing of 16 ^th May, 2023 be transcribed and a copy of the transcript be made available to all parties. This was, in part, because Mr. G. had made certain criticisms of the manner in which the case had been heard and made an application to ask me to recuse myself.

4 . However at the hearing on 20 June, 2023, when I explained how the case had come to be listed before me, and related matters, Mr. G. withdrew his application that I should recuse myself.

5 . That left only the substantive issue of whether this court should revisit its judgment of 16 May, 2023. This judgment deals with that application.

6 . In this judgment, I will

• (i) set out in full my ex tempore judgment of 16 May, 2023;

• (ii) set out the legal principles governing applications on this nature; and

• (iii) consider the grounds upon which Mr. G. has requested the Court to revisit its judgment.

7 . I will therefore first set out below my ex tempore judgment. This is drawn from the transcript with minor edits for clarity and some further edits to ensure that the identities of the parties are not disclosed.

Ex Tempore Judgment delivered on 16 May 2023

Introduction

• 1. This is my ex tempore decision in relation to a preliminary issue which has arisen in relation to this matter.

• 2. The first named plaintiff in this case is Mr. G. The second-named plaintiff is a single member company called S.P. Limited with a registered address in Dundalk, County Louth.

• 3. The first-named defendant is a financial advisor who advises the third-named defendant Ms S.

• 4. The second-named defendant is a solicitor who also previously advised the third-named defendant, Ms. S., until the commencement of these proceedings.

• 5. The third defendant is the wife of the first-named plaintiff and originally was the director and sole member of the second plaintiff company. She has since transferred her shares to the first plaintiff and resigned as a director.

• 6. The plenary summons in this case issued on 24th of April 2023. In it the plaintiffs (i.e. the first and second-named plaintiffs), make a number of claims against the three defendants as follows.

  • (i) an order for damages against the first and second defendants to the first plaintiff of €10,000 each for the complicit role, by action or omission, in the breach of contract between the first plaintiff and the third defendant;

  • (ii) an order for damages against the first and second defendants to the second plaintiff of €40,000 each for their complicit role, by action or omission, in the misuse and/or embezzlement of the assets of the second plaintiff;

  • (iii) a permanent injunction ordering the third defendant to make a payment on account to the second plaintiff for a sum sufficient to bring the bank account within the limits of its overdraft;

  • (iv) a permanent injunction requesting the third defendant to give the first plaintiff full and immediate access to the stock of the second plaintiff, to allow him to make a full stock-take of the remaining stock and to invoice all stock not accounted for. There are also various other injunctions and reliefs sought in paragraphs 5–14 of the plenary summons;

• 7. The plaintiff is a lay litigant, and he represents himself. However, the plaintiff is also representing the second-named plaintiff in these proceedings, the company, S.P. Limited.

The application for an injunction

• 8. Both plaintiffs, in addition to issuing a plenary summons, also brought an application for an interlocutory injunction against all three defendants seeking various interlocutory reliefs most of which were also sought in the plenary summons.

• 9. The first and second-named defendants filed replying affidavits contesting the plaintiffs' claims.

• 10. The third defendant, who was originally represented by a firm of solicitors, including the second defendant, found herself, through no fault of her own, without legal representation today as her solicitors felt that they had to withdraw from the proceedings – understandably given that they are a named defendant in these proceedings.

• 11. The plaintiffs brought an ex parte application before the High Court on 25th of April 2023 seeking short service of a motion for an interlocutory injunction to be made returnable...