Irish Bank Resolution Corporation Ltd and Others v Quinn and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 22 November 2012 |
| Neutral Citation | [2012] IEHC 596 |
| Date | 22 November 2012 |
| Court | High Court |
[2012] IEHC 596
THE HIGH COURT
BETWEEN
AND
ANGLO IRISH BANK CORP LTD v QUINN INVESTMENTS SWEDEN AB & ORS UNREP CLARKE 13.9.2011 2011/4/809 2011 IEHC 356
EEC REG 44/2001 ART 23
EEC REG 44/2001 ART 28
OWNERS OF CARGO LATELY LADEN ON BOARD THE SHIP TATRY v OWNERS OF THE SHIP MACIEJ RATAJ 1999 QB 515 1999 2 WLR 181 1995 AER (EC) 229 1994 ECR I-5439 1995 CLC 275
EEC REG 44/2001 ART 27
AMMINISTRAZIONE DELLE FINANZE DELLO STATO v SIMMENTHAL SPA (NO 2) 1978 ECR 629 1978 3 CMLR 263
ANDERSON & DEMETRIOU REFERENCES TO THE EUROPEAN COURT 2ED 2002 304
FIRMA RHEINMUHLEN-DUSSELDORF v EINFUHRUND VORRATSSTELLE FUR GETREIDE & FUTTERMITTEL 1974 ECR 33 1974 1 CMLR 523
ROYSCOT LEASING LTD & ORS v CMRS OF CUSTOMS & EXCISE 1999 1 CMLR 903
BENTINCK v BENTINCK 2007 ILPR 32 2007 2 FCR 267 2007 EWCA CIV 175
EUROPEAN UNION
Reference to European Court of Justice
Withdrawal of reference - Jurisdiction to withdraw - Reference moot - Brussels Regulation - Conflict of laws - Proceedings before Cypriot courts - Reference of questions regarding jurisdiction to European Court of Justice - Cypriot proceedings struck out - Whether clear and manifest that reference no longer serving useful purpose - Whether appropriate to withdraw reference - Brussels Regulation, art 28 - Reference withdrawn (2011/5843P - Clarke J - 22/11/2012) [2012] IEHC 596
Irish Bank Resolution Corporation Ltd v Quinn
Facts: The parties were engaged in substantial litigation in respect of debts owed to the first plaintiff and the efforts of the first plaintiff to realise their security held over assets of the defendants. In an earlier hearing ([2011] IEHC 356), the High Court had refused the application by a number of defendants to have jurisdiction in the case declared to be in other states. Certain matters were also referred to the CJEU. The first plaintiff now sought to have the reference to the CJEU withdrawn.
Held by Clarke J, that the Court in the current application had to determine whether circumstances had changed such that a reference to the CJEU was no longer necessary. The original purpose of the reference was to deal with the fact 3 sets of related and similar proceedings were live, but depended on the fact that the matters referred may affect the defendants" application.
Considering the circumstances, such as the proceedings in Cyprus being struck out, and the two Irish proceedings progressing, the Court granted the application to withdraw the reference. The Irish proceedings were likely to conclude long before the Cyprus proceedings were.
2 1.1 This judgment follows on from a previous judgment delivered by me in these proceedings on the 13 th September, 2011 ("the earlier judgment") [2011] IEHC 356. For the reasons set out in that judgment, I refused an application brought by some of the defendants for an order under Article 23 of the Brussels Regulation declaring that the Courts of Sweden and Cyprus respectively had jurisdiction in respect of many of the issues which then arose in these proceedings. As an alternative, the same defendants sought an order that the court should decline jurisdiction and dismiss, or alternatively stay, these proceedings under Article 28 of the Brussels Regulation pending the determination of what was said to be a related action (No. 4324/2011), which was then pending before the Courts of Cyprus. So far as that latter as aspect of the application was concerned, and for the reasons set out in the earlier judgment, I referred certain questions to the European Court of Justice ("ECJ") for preliminary ruling.
3 1.2 In this judgment, subject to what follows, terms are used in the same manner as in the earlier judgment. However, there have been some changes in the description and identity of the parties to this litigation since the earlier judgment. First, the principal plaintiff has now changed its name to Irish Bank Resolution Corporation ("IRBC") and I will refer to it in that way in this judgment. Second, a number of additional defendants, who were not parties to these proceedings at the time of the earlier judgment, have since been added. Nothing turns on that fact. However, the phrase "the Quinns" is used in the same manner as in the earlier judgment and refers to those of the defendants who were the moving parties in the application to stay or dismiss these proceedings on jurisdictional grounds.
4 1.3 The matter has now come back before the court. IRBC applied to the court suggesting that a request should be submitted to the ECJ which would have, in substance, the effect of withdrawing the order of reference already made. It was said that circumstances had now changed so that a reference was no longer necessary to enable a proper resolution by this Court of the issues which arise under Article 28 of the Brussels Regulation. That application on behalf of IRBC has had a slightly complicated procedural history to which I will shortly turn. However, this judgment is ultimately concerned with that question of whether it is, in all the circumstances, appropriate to inform the ECJ that answers to the questions raised in the order of reference are no longer considered necessary. I turn first to the procedural history.
2 2.1 When the application for a withdrawal of the reference was first listed for hearing, both sides were represented by solicitor and counsel. Argument was addressed as to the merits or otherwise of that application. The hearing took place on the 18 th July, 2012. On the 25 th July, 2012, I indicated that it would be necessary for me to reconsider the original motion brought by the Quinns under Article 28 of the Brussels Regulation, in the light of any relevant change in circumstances, for the purposes of deciding whether the issues raised in the reference were any longer of material significance to a determination of that application to dismiss or stay. I afforded the parties an opportunity to file such additional evidence or submissions as they might feel appropriate.
3 2.2 During the summer vacation the solicitors then on record for the Quinns came off record. In addition, proceedings alleging contempt of court were brought against three of the Quinns being Sean Quinn, Sean Quinn Junior and Peter Daragh Quinn, as a result of which the High Court (Dunne J.) concluded that all three were in contempt of court. An appeal was brought by Sean Quinn Junior to the Supreme Court in respect of the finding of contempt and in respect of certain other orders made consequential on that finding of contempt. The appeal was unsuccessful in respect of the primary finding of contempt made against Sean Quinn Junior and in respect of the period of imprisonment imposed on him in respect of that contempt. The appeal was successful in respect of other coercive orders made consequent on the finding of contempt. In the course of the contempt hearings in question, there was representation for certain of the Quinns and, in particular, Sean Quinn Junior in relation to the appeal to the Supreme Court and Sean Quinn in respect of further hearings conducted in the High Court to determine whether a penalty should be imposed in respect of the earlier finding of contempt. In the events that happened, Dunne J. imposed a period of imprisonment of nine weeks on Sean Quinn as a result of those hearings.
4 2.3 It had been my intention to list the resumed hearing of these matters in the early weeks of the new term. However, in the light of the fact that many other controversial aspects of this case were under active consideration in various courts and in the light of the somewhat unclear position as to legal representation for the Quinns, I decided to defer matters for a short period of time. However, it became clear that the hearing of the reference before the ECJ had become imminent so that it was necessary to decide this question one way or the other for if it were not decided quickly any further delay would have the same effect as a refusal of the IRBC's application (whether same was merited or not) for the hearing of the reference would go ahead in any event. For those reasons, I arranged to have the matter listed.
5 2.4 At the hearing, Sean Quinn was represented by counsel. Other members of the Quinn family were not legally represented but one of their number acted as an agreed spokesman. In the intervening period IRBC had filed additional evidence and submissions. The Quinns confined themselves to drawing the court's attention to certain additional facts which, it was urged, should properly be taken into account by the court in reaching a conclusion. While the application was listed for mention and while it had originally been intended that, if necessary, a date would be fixed for hearing further submissions, IRBC was content to rest on the additional evidence and written submissions which it had filed. The Quinns were content to rest on the additional points made orally. On that basis, I indicated that I would deliver judgment on the substance of the matters raised in early course. This judgment is directed to that end. The starting point must be a brief review of the earlier judgment.
2 3.1 As is clear from the discussion on the issues which arose in...
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