Gerard Dowling and Others v Minister for Finance and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly |
| Judgment Date | 19 December 2013 |
| Neutral Citation | [2013] IESC 58 |
| Court | Supreme Court |
| Date | 19 December 2013 |
BETWEEN:
AND
AND
[2013] IESC 58
Fennelly J.
Clarke J.
MacMenamin J.
THE SUPREME COURT
PRACTICE AND PROCEDURE
Parties
Motion to add notice parties to a special proceeding in High Court - Appeal - Direction order of Minister for Finance - Relevant institution - Order to add as notice parties with limitations - Judicial review - Appropriate test for judicial review proceedings - Interlocutory motion - Prejudice - Discretion of court - Delay - Preliminary reference - Principle of national procedural autonomy - Whether interested party directly affected - Whether appropriate to make reference at stage of proceedings - Barlow v Fanning [2002] 2 IR 593; Fincoriz SAS Di Bruno Tassin Din e C v Ansbacher & Co Ltd (Unrep, Lynch J, 20/4/1987); BUPA Ireland Ltd v Health Insurance Authority [2006] 1 IR 201; O'Keeffe v An Bord Pleanála [1993] 1 IR 39; Spin Communications T/A Storm FM v Independent Radio and Television Commission (Unrep, SC, 14/4/2000); Yap v Children's University Hospital Temple Street Ltd [2006] IEHC 308, [2006] 4 IR 298; Johnston v Chief Constable of the Royal Ulster Constabulary (Case 222/85) [1986] ECR 1651; Grundig Italiana Spa v Ministero delle Finanze (C-255/00) [2002] ECR I-8003 and Kempter (Case C-2/06) [2008] ECR I-411 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 15 r 13 and O 84 - European Communities (Companies) Regulations, 1973 (SI 163/1973), reg 6 - Credit Institutions (Stabilisation) Act 2010 (No 36), ss 2, 7, 9 and 11 - Directive 2009/101/EC, art 10 - Treaty on the Functioning of the European Union, art 267 - Appeal allowed; order permitting appellants to be joined as notice without limitations (2011/239MCA(1) - SC - 19/12/2013) [2013] IESC 58
Dowling & ors v Minister for Finance
Facts: Permanent TSB Group Holdings plc and Permanent TSB ('the appellants') were a holding company and related bank respectively that had received a cash injection of €2.7 billion in 2011 following a direction order of the Minister for Finance ('the Minister') due to the economic recession at the time. In return, the Minister acquired the life assurance business of these entities. It was the plaintiffs/respondents" view that the Minister"s decision, made pursuant to the Credit Institutions (Stabilisation) Act 2010 (the '2010 Act'), was unreasonable and had resulted in a severe drop in the value of shares they held in the holding company. This was despite the fact that the holding company had held an extraordinary general meeting in July 2011 and voted against the planned intervention of the Minister. The plaintiff/respondents initiated a significant amount of litigation against the Minister.
By way of motion, the appellants brought an application to the High Court to be joined as notice parties to the plaintiffs/respondents" action against the Minister. On the 21 st February 2013, Charleton J. granted the appellants" application on a limited basis as it was determined that their submissions were necessary to reach a fair and complete decision in regards to the substantive proceedings. It was clear that the appellants wished to be joined in order to resist the Minister"s direction order being overturned or varied without their input. It was determined that if the applicants were successful, the direction order could potentially be overturned or amended and in those circumstances, the views of the companies could potentially be beneficial. The appellants were therefore added as notice parties but only for that specific purpose.
The appellants initiated an appeal of this decision, and it was their submission that that they should be joined fully as notice parties to the proceedings that challenged the Minister"s direction order. They argued that Charleton J. had failed to give proper regard to the direct adverse effect that a setting aside of the direction order could potentially have on their interests; had applied an incorrect test in deciding whether the submissions of the appellants were needed on any issue; had failed to give due regard to the fact that the appellants had been joined as full notice parties in a related challenge to the direction order; and had erroneously found that there had been undue delay on the part of the appellants in bringing the original motion. They also argued that there were sufficient grounds for the making of an order joining them as full notice parties.
Held by Fennelly J. (with Clarke J. and MacMenamin J. concurring) that the appeal would be allowed. It was noted that in the judgment in BUPA Ireland Ltd. v. Health Insurance Authority [2006] 1 I.R. 201, Kearns J. stated that it was appropriate to join a party as a notice party to proceedings in circumstances including (but not limited to) where that party has "vital interest in the outcome of the matter", is "vitally interested in the outcome of the proceedings" or would be "very clearly affected by the result". It was also pointed out that Order 84, Rule 22(2) of the Rules of the Superior Courts imposed an obligation to notify 'all persons directly affected'. Whilst it was true that Order 84 was chiefly concerned with judicial review proceedings and not a civil action such as these proceedings, it was held that an application for a revocation of a direction order had all (or almost all) the characteristics of judicial review and, therefore, Order 84 would apply. As a result, it was found that the respondents had been obliged to notify 'all persons directly affected' by the application to revoke the direction order.
Applying Order 84 to the facts of the present case, it was found that the appellants were clearly parties that could potentially be directly affected by the respondents" litigation and should have been joined as notice parties. It was also found that in determining the appellants" motion, Charleton J. had applied an incorrect test in determining whether the submissions of the appellants were needed on any issue. Further, on consideration of the evidence before the Court, it was said that there was nothing apparent that suggested that the respondents would be prejudiced if the appellants were joined as full notice parties. In regards to the finding of delay, it was noted that though Charleton J. had criticised the appellants for delay, he had nonetheless permitted their participation as notice parties on a limited basis. On that basis, it was said delay had not been a determining factor in the High Court judge"s decision.
For those reasons, the appeal was allowed and the appellants were joined as full notice parties.
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S7(1)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S2(1)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9(1)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S9(2)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S7
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(3)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(4)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(5)
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(6)
RSC O.15 r13
BARLOW & ORS v FANNING & UNIVERSITY COLLEGE CORK (UCC) 2002 2 IR 593 2003 1 ILRM 29
VANDERVELL TRUSTEES LTD v WHITE & ORS 1970 3 AER 16 1970 3 WLR 452 1971 AC 912
FINCORIZ SAS v ANSBACHER & CO LTD UNREP LYNCH 20.4.1987 1987/2/592
RSC O.84 r22(6)
RSC O.84 r26(1)
BUPA IRELAND LTD v HEALTH INSURANCE AUTHORITY (NO 1) 2006 1 IR 201 2005 IESC 80
HEALTH INSURANCE ACT 1994
O'KEEFFE v BORD PLEANALA 1993 IR 39
SPIN COMMUNICATIONS T/A STORM FM v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) & ANOR UNREP SUPREME 14.4.2000 2000/16/6286 2000 IESC 56
RSC O.84 r22(2)
YAP v CHILDRENS UNIVERSITY HOSPITAL TEMPLE STREET LTD 2006 4 IR 298 2006 IEHC 308
RSC O.84 r18
RSC O.84 r15
CREDIT INSTITUTIONS (STABILISATION) ACT 2010 S11(2)
EEC DIR 101/2009 ART 10
TREATY OF ROME ART 48
EUROPEAN COMMUNITIES (COMPANIES) REGS SI 163/1973 REG 6
EEC DIR 77/2011
TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION ART 267
EEC DIR 101/2009 ART 10
JOHNSTON v CHIEF CONSTABLE OF THE RUC 1986 ECR 1651
GRUNDIG ITALIANA SPA v MINISTERO DELLE FINANZE 2003 1 CMLR 36 2003 AER (EC) 176 2002 ECR I-8003
WILLY KEMPTER KG v HAUPTZOLLAMT HAMBURG-JONAS 2008 2 CMLR 21 2008 ECR I-411
JUDGMENT of Mr. Justice Fennelly delivered the 19th day ofDecember, 2013.
Judgment delivered by Fennelly J [Nem diss]
1. This appeal concerns a motion brought in the High Court to add parties to a special proceeding in that Court whose object is the setting aside of a direction order whereby the Minister for Finance proposed the capitalisation of the first-named appellant allegedly to the disadvantage of existing shareholders. The Direction Order was made on 26 th July 2011 by the High Court (McGovern J.) on the application of the Minister. The trial in the High Court is due to take place on 14 th January 2014.
2. The context of the appeal calls for the exercise of caution. It is important to...
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