Greene King Brewing and Retailing Ltd v Baker

• Jurisdiction: Ireland
• Judge: Ms. Justice Pilkington
• Judgment Date: 08 April 2020
• Neutral Citation: [2020] IEHC 221
• Docket Number: [Record No. 6054]
• Court: High Court
• Date: 08 April 2020

BETWEEN

GREENE KING BREWING AND RETAILING LIMITED

APPLICANT

AND

BRIAN BAKER

RESPONDENT

[2020] IEHC 221

Pilkington J.

[Record No. 6054]

THE HIGH COURT

BANKRUPTCY

Bankruptcy summons – Statute of limitations – Order of fieri facias – Respondent seeking dismissal of bankruptcy summons – Whether an issue arose for trial as to whether the statute of limitations could be raised to bar some or all of the applicant’s claim

Facts: The respondent, Mr Baker (the debtor), applied to the High Court to dismiss a Bankruptcy Summons issued on 22nd October, 2018. There was also an application to issue a fresh summons (in almost identical terms to that issued previously). On 10 August 2004, the applicant, Green King Brewing and Retailing Ltd (the petitioning creditor), obtained judgment against the debtor from Harlow County Court, UK. On 2 June 2011 a European Enforcement Order (EEO) was obtained from Lambeth County Court, UK. On 16 June 2012 an Order of Fieri Facias issued in Ireland’s jurisdiction, on foot of the EEO. On 14 March 2012, a certificate of registration of the judgment was executed by the Master of the High Court, reflecting on its face the entry of the judgment on 16 January 2012. The debtor had sworn his affidavit on 31st January 2019. Within it and his counsel’s submissions he contended: (a) that in respect of the UK judgment entered on the 10th August, 2004 and in Ireland’s jurisdiction on 16 June 2012, the debt was statute barred; (b) an issue with the judgment date being shown as the 16th day of January, 2012, as opposed to 10 August 2004 coupled with a suggestion that judgment (in the form of an Order of Fieri Facias) is not a judgment properly obtained within Ireland’s jurisdiction. Counsel for the petitioning creditor contended that the issuing of a bankruptcy summons does not constitute an action upon a judgment but is rather a process of execution and accordingly is not ‘caught’ within the statutory definition of the relevant section of the statute of limitations. If that argument were to succeed then, it was contended, any issue regarding the timing of the execution order did not arise nor any issue regarding the Order of Fieri Facias.

Held by Pilkington J that an issue did arise for trial as to whether the statute of limitations could be raised to bar some or all of the applicant’s claim. There was, in Pilkington J’s view, an issue which did arise for trial pursuant to s. 8(6)(b) of the Bankruptcy Act 1988, particularly as this section also makes it clear that if such an issue arises for trial that the court shall dismiss the summons; accordingly, the summons stood dismissed pursuant to s. 8(6)(b) of the 1988 Act.

Pilkington J held that, having made that adjudication, she would hear the parties as to what, if any consequential or other orders arose, including any order as to costs.

Application granted.

JUDGMENT of Ms. Justice Pilkington delivered on the 8th day of April, 2020

1 This application concerns a Notice of Application to dismiss a Bankruptcy Summons issued on 22nd October, 2018. There is also an application to issue a fresh summons (in almost identical terms to that issued previously). Both Counsel considered that it would be preferable to hear both the application to issue a fresh summons and to dismiss the same summons within the same application and I have agreed to do so. I am dealing initially with the application to dismiss the bankruptcy summons.

2 It is against the following factual background:-

(a) On 10 August 2004 the petitioning creditor obtained judgment against the debtor from Harlow County Court, UK.

(b) On 2 June 2011 a European Enforcement Order (‘EEO’) was obtained from Lambeth County Court, UK.

(c) On 16 June 2012 an Order of Fieri Facias issued in this jurisdiction, on foot of the EEO.

(d) On 14 March 2012 a certificate of registration of the judgment was executed by the Master of the High Court, reflecting on its face the entry of the judgment on 16 January 2012.

3 The debtor has sworn his affidavit on 31st January 2019, within it and his counsel's submissions he contends:-

(a) That in respect of the UK judgment entered on the 10th August, 2004 and in this jurisdiction on 16 June 2012, the debt is now statute barred.

(b) An issue with the judgment date being shown as the 16th day of January, 2012, as opposed to 10 August 2004 coupled with a suggestion that judgment (in the form of an Order of Fieri Facias) is not a judgment properly obtained within this jurisdiction.

4 Counsel for the petitioning creditor contends that the issuing of a bankruptcy summons does not constitute an action upon a judgment but is rather a process of execution and accordingly is not ‘caught’ within the statutory definition of the relevant section of the statute of limitations. If that argument were to succeed then, it is contended, any issue regarding the timing of the execution order does not arise nor any issue regarding the Order of Fieri Facias.

5 Section 8 of the Bankruptcy Act, 1988 (as amended) states:-

“(5) A debtor served with a bankruptcy summons may apply to the court in the prescribed manner and within the prescribed time to dismiss the summons.

(6) The court-

(a) may dismiss the summons with or without costs, and

(b) shall dismiss the summons if satisfied that an issue would arise for trial.”

6 In respect of the dismissal of a bankruptcy summons, the case opened to me was that of Costello J. in ACC Loan Management Ltd and C.M. [2015] IEHC 96.

7 As pointed out within this judgment, the issue was extensively analysed by Dunne J. in Marketspreads Limited v. O'Neill & Rice [2014] IEHC 14 (‘Marketspreads’), when she in turn considered the test established by the Supreme Court in St. Kevin's Company against a Debtor (Supreme Court ex tempore, 27th January, 1995) as considered by McGovern J. in the Minister for Communications v. MW [2010] 3 I.R. 1. In MW, McGovern J. stated:-

“… the correct interpretation of s. 8(6)(b) of the Act of 1988, was that the High Court should not undertake an investigation into the merits of the case once it was satisfied that an issue arose on the summons. In those circumstances, the Supreme Court stated that it was mandatory for the court to dismiss the summons if it was satisfied that an issue arose between the parties, and the issue would have to be litigated separately outside the bankruptcy process”.

In Marketspreads, Dunne J. stated as follows:-

“the obligation of the Court is to be satisfied that there is an issue between the parties and, if so, then one must dismiss the bankruptcy summons. It seems to me that in considering the approach of the Court in deciding whether or not there is an issue, one has to have regard, of course, to whether or not the issue is, to use the words of McGovern J., “a real and substantial issue and one which is, at least, arguable and which has some prospect of success”. To put it another way, if one was to re-phrase the test, could it be said that the summons should be dismissed if the Court was merely satisfied that there was an issue, that it was unreal and illusory, that it was not arguable and had no prospect of success, could it be said that in those circumstances, the Court is nonetheless obliged to dismiss the bankruptcy summons? Although there is no written judgment of the Supreme Court in the St. Kevin's case, it is clear that the Court was of the view that there should not be an investigation into the merits of the case once it was clear that an issue arose. Equally, the Court indicated that such an issue was one which would have to be litigated separately outside the bankruptcy process. The Court therefore has to consider the arguments that are put forward in any given case to satisfy itself that there is, in fact, an issue. An unreal or illusory issue raised by a party will not give rise to the dismissal of a bankruptcy summons …

In the course of the arguments, reference was made to the approach of the Courts in applications for summary judgment as to whether a defence has been raised requiring the matter to be adjourned to plenary hearing. I think that the test in such cases is of assistance in considering the test identified by McGovern J. Therefore, it seems to me that, in considering if the party seeking the dismissal of the bankruptcy summons has raised an issue such that the summons should be dismissed, the Court could derive some assistance from the approach to be found in cases such as Harrisrange Limited v. Duncan [2003] 4 I.R. 1 and to the well known principles set out in the judgment of McKechnie J.”

Dunne J. also referred to the decision of Clarke J. in McGrath v. O'Driscoll [2006] IEHC 195 where he held:-

‘… that a mere assertion of a defence is insufficient but any evidence of fact, which would, if true, arguably give rise to a defence will, in the ordinary way, be sufficient to require that leave to defend be given so that the issue of fact can be resolved’

Costello J. then stated;

I accept that these are the principles which should be applied in determining whether or not the bankruptcy summons should be dismissed.”

8 I also accept these are the applicable principles.

9 Section 11(6)(a) of the Statute of Limitations Act, 1957 is well known and clear in its terms. It states:-

“An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the judgment became enforceable”.

Section 2 of the same Act...