Gaultier v The Registrar of Companies

• Jurisdiction: Ireland
• Judge: Ms. Justice Faherty
• Judgment Date: 07 March 2025
• Neutral Citation: [2025] IECA 58
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 2023/298

Between/

Arnaud D. Gaultier

Applicant/Appellant

and

The Registrar of Companies

Companies Acts 1963–2009

Respondent

and

Loire Valley Limited

Notice Party

[2025] IECA 58

Faherty J.

Allen J.

O'Moore J.

Record Number: 2023/298

THE COURT OF APPEAL

Order for costs – Leave to issue execution – Procedural unfairness – Appellants appealing against the judgment granting leave to the respondent to issue execution – Whether the appellant was given a fair hearing

Facts: The appellant, Mr Gaultier, appealed to the Court of Appeal against the judgment of Barr J of 28 July 2023 ([2023] IEHC 451) (the substantive judgment) granting leave to the respondent, the Registrar of Companies, to issue execution of the order of the High Court (Dunne J) of 8 March 2013, and the subsequent ruling of Barr J of 25 October 2023 ([2023] IEHC 613) refusing to reopen the substantive judgment and the award to the respondent of her costs. The appellant’s grounds of appeal were as follows: (i) the alleged error on the part of the Judge in concluding that the substantive matters in dispute between the appellant and the respondent had been finally determined in previous judgments (which the appellant had alleged were “void ab initio” ) and accepting the validity of those judgments (ground 1); (ii) the Judge’s refusal to revisit the 28 July 2023 judgment (grounds 7, 8 and 9); (iii) the failure of the Judge to amend the 28 July 2023 judgment pursuant to the ‘slip rule’ (grounds 2 and 3); and (iv) alleged procedural unfairness (grounds 4, 5 and 6).

Held by Faherty J that it was not appropriate for the appellant to seek to use the respondent’s application for leave to issue execution, or the appeal, as a route by which to seek to challenge the valid orders of different judges of the Superior Courts where such orders had come about by appellant having fully exercised his right of appeal against the judgment and order of Dunne J upon which the application for leave to execute had been brought and where no application was brought by the appellant to seek to have Dunne J revisit her judgment. The appellant had not persuaded the Court either that the Judge failed to consider the application to revisit the judgment or, having done so, that the Judge was wrong to refuse to revisit his substantive judgment and to conclude that if the appellant was unhappy with the judgment, his remedy lay in an appeal. Faherty J noted that O. 28, r. 11 of the Rules of the Superior Courts provides for a facility whereby “clerical mistakes” in judgments or orders, or errors arising from any accidental slip or omission, may at any time be corrected without an appeal. Faherty J noted that the appellant did not highlight any “clerical mistakes”; rather, the amendments which the appellant wanted to be inserted into the judgment were of a substantive nature and were intended to add a narrative to the judgment for purposes other than correcting any clerical mistake or accidental slip or omission. Faherty J held that no unfairness was visited on the appellant by the ruling of 25 October 2023; having declined the oral hearing on 26 October 2023 that was offered to him and confirming that he was happy to let his argument rest on the materials he had put before the court, the appellant could have no cause to complain that his application to amend the 28 July 2023 judgment was not afforded a fair hearing. Faherty J held that the appellant’s complaint about the manner in which the respondent was awarded its costs was equally unmeritorious.

Faherty J dismissed the appeal.

Appeal dismissed.

No redaction needed

JUDGMENT of Ms. Justice Faherty delivered on the 7 ^th day of March 2025

1 This is Mr. Gaultier's (hereinafter “the appellant”) appeal against the judgment of Barr J. (hereinafter “the Judge”) of 28 July 2023 ( [2023] IEHC 451) (hereafter “the substantive judgment” or “the 28 July 2023 judgment”) granting leave to the Registrar of Companies (hereafter “the respondent”) to issue execution of the order of the High Court (Dunne J.) of 8 March 2013, and the subsequent ruling of Barr J. of 25 October 2023 ( [2023] IEHC 613) refusing to reopen the substantive judgment and the award to the respondent of her costs.

Background

2 On 6 July 2012, the appellant issued judicial review proceedings challenging the decision of the respondent to strike off the notice party Loire Valley Limited (hereafter “the Company”) from the Registrar of Companies and dissolve it, for the failure on the part of the Company to file accounts over a number of years.

3 By order of 8 March 2013, as perfected on 13 March 2013, the High Court (Dunne J.) refused the reliefs sought by the appellant in his judicial review proceedings and awarded the costs of the proceedings, and of a number of interlocutory applications relating thereto, to the respondent.

4 Efforts were made to agree costs but, ultimately, in the absence of an agreement on costs, the respondent pursued her costs and issued a summons to tax upon the appellant on 8 January 2015. The Taxing Master delivered his ruling on 28 April 2015. On 21 May 2015, the appellant filed written objections to the Taxing Master's decision. Following a hearing on 12 October 2015, the Taxing Master ruled on the matter on 16 December 2015.

5 The appellant sought a review of the Taxing Master's ruling pursuant to O. 99, r. 38 of the Rules of the Superior Courts (“RSC”) and in a judgment delivered on 28 April 2017, the High Court (Faherty J.) rejected the appellant's application to have the taxation of costs remitted to the taxing Master.

6 On 28 June 2017, the Taxing Master issued a certificate of taxation, certifying that the respondent was entitled to the sum of €25,215.06 in respect of the judicial review costs and the interlocutory applications mentioned in the High Court order of 8 March 2013.

7 There being no response from the appellant after the respondent sought payment on foot of the certificate of taxation, on 16 October 2017, a FIFA was duly issued.

8 The appellant had however appealed the order of Dunne J. of 8 March 2013 to the Supreme Court (the appeal issued on 3 May 2013 same having been filed by the appellant on 11 April 2013).

9 The appeal was ultimately heard on 1 July 2019 by the Court of Appeal. On 23 July 2019, the Court of Appeal dismissed the appeal, and its order was perfected on 26 July 2019.

10 On 6 August 2019, the original FIFA was sent to the Sheriff's Office with a request that the Sheriff arrange to levy execution.

11 On 16 August 2019, the appellant lodged an application with the Supreme Court, seeking leave to appeal against the judgment of the Court of Appeal.

12 On 14 January 2020, the respondent's solicitors wrote to the Sheriff seeking the return of the execution order in circumstances where the appellant's leave application was in train.

13 On 20 January 2020, the Supreme Court refused the appellant's application for leave to appeal ( [2020] IESCDET 2).

14 Some two years or so later, on 28 March 2022, the respondent issued her motion seeking leave to execute on the judgment and order of Dunne J. of 8 March 2013.

15 The respondent's application was grounded on an affidavit sworn on 22 March 2022 by Ms. Eileen Mulligan, a higher legal executive in the Office of the Chief State Solicitor (“CSSO”). Ms. Mulligan's affidavit outlined the history of the within proceedings much as I have already outlined above. She averred that the subsequent delay in bringing the within application before the court was occasioned by the impact of the significant and ongoing restrictions which had been implemented in the State to deal with the Covid-19 pandemic, which commenced soon after the Supreme Court determination had been handed down. She averred that at the date of the swearing of her affidavit, the sum of €25,215.06 and interest was still due and owing by the appellant to the respondent in respect of the costs of the judicial review, as certified by the Taxing Master.

16 The appellant swore a replying affidavit on 7 August 2022. Therein, he stated that the certificate of taxation and the bill of costs prepared by the respondent included consideration of a detailed report received from the Revenue Commissioners. He stated that such a report constituted an offence pursuant to s. 851A of the Taxes Consolidation Act 1997 and that counsel for the respondent had been informed of that on 22 June 2017 but had not sought to have the certificate of taxation amended, as the appellant claims he ought to have.

17 The appellant went on to allege that certain averments in Ms. Mulligan's affidavit constituted either hearsay evidence and/or were erroneous, and that Ms. Mulligan did not have capacity to prove or ascertain whether letters exhibited in her affidavit had been sent to or received by the intended recipients. The applicant averred that he had no recollection of receiving the letters exhibited at exhibits “A” and “D” to that affidavit.

18 At paras. 11–20, the appellant took issue with certain judgments of the High Court in relation to the within matter (namely the ex tempore judgment of Hedigan J. of 21 November 2012 and the judgment of Dunne J. of 8 March 2013). He also took issue with the judgment of McGovern J. which was delivered on behalf of the Court of Appeal on 23 July 2019 and the Supreme Court's determination which issued on 20 January 2020. All of these judgments and orders, it was said, were void ab initio due to the fact that each had failed to properly address substantive arguments that the appellant had raised in moving his various applications and appeals before those courts.

19 He further averred that that part of the order of Faherty J. of 28 April 2017 which relied on the order made by Dunne J. on 8 March 2013 (which the appellant alleged was void ab initio) also rendered the judgment of Faherty J. de facto void ab initio. The Supreme...