Irish Gold and Silver Bullion Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 10 July 2023 |
| Neutral Citation | [2023] IEHC 392 |
| Court | High Court |
| Docket Number | [2022 167 COS] |
In the Matter of Irish Gold and Silver Bullion Limited
and
In the Matter of Sections 608, 610 and 842 of the Companies Act 2014
and
[2023] IEHC 392
[2022 167 COS]
THE HIGH COURT
Disqualification – Duration – Mitigation – Applicant seeking the imposition of a disqualification order upon the first respondent – Whether the period of disqualification to be imposed on the first respondent ought to be reduced
Facts: Irish Gold and Silver Bullion Ltd (the company), on the 14th of June 2021, was wound up by order of the High Court (O’Regan J). The applicant, Mr Kirby, was appointed as liquidator of the company. On the 25th of July 2022, the originating notice of motion against the respondents, Mr Wickham and Hamden Development Homes UK Ltd (Hamden), was prepared on the instructions of the liquidator. The liquidator sought the following reliefs: (1) an order pursuant to s. 610 (2) of the Companies Act 2014 declaring that Mr Wickham be personally responsible, without any limitation of liability, for the debts of the company, or for such portion thereafter the court may direct; (2) an order granting judgment in favour of the company as against Mr Wickham in the sum of €1,038,892.27, plus which other sums as shall appear just; (3) in the alternative, an order pursuant to s. 612 (2) of the 2014 Act compelling Mr Wickham to contribute the sum of €1,038,892.27 to the assets of the company, such other sum as shall appear just to the court, by way of compensation in respect of the misapplication, retainer, misfeasance, breach of duty and/or breach of trust by Mr Wickham; (4) an order pursuant to s. 608 of the 2014 Act directing Hamden to pay the sums of €164,674.62 and STG£88,756.34 to the applicant, or such other sums as shall appear just; and (5) a disqualification order as against Mr Wickham. On the 26th of July 2022 an ex parte application was made on behalf of the liquidator seeking interim relief of a Mareva type against Mr Wickham. O’Moore J made an order pursuant to s. 798 of the 2014 Act restraining Mr Wickham until after the 5th of September 2022 from reducing the value of his assets within or outside the State below the sum of €1,038,892.27. The application for injunctive relief on the part of Mr Kirby was successful. An interlocutory order was granted to the liquidator broadly mirroring the terms of the original interim order. Analogous orders were made against Hamden. Those orders were made by O’Moore J as he was satisfied that it was appropriate to do so in light of the criteria set down by Gilligan J in Kirby v Dowling [2016] IEHC 801. Given the evidence before O’Moore J about the way the company had been run, it was clear to him that there was a real risk that Mr Wickham’s unsavory approach towards the stewardship of other people’s money would extend to the dissipation and concealment of assets in order to defeat Mr Kirby’s claim. After the interlocutory order was made, the claim advanced by Mr Kirby against both Mr Wickham and Hamden was compromised. The settlement left one matter to be decided by the court; the length of any disqualification order to be imposed upon Mr Wickham.
Held by O’Moore J that Mr Wickham's behaviour fell within the class of "particularly serious cases" which warrant consideration of a disqualification period of more than 10 years. O’Moore J held that the headline period of disqualification was 14 years. O’Moore J noted that the mitigating factors were the belated settlement of the proceedings (in February 2023) after a large number of court appearances, the acceptance of a disqualification order, and the payment by Mr Wickham to the liquidator of a sum of STG£310,000. O’Moore J also noted the fact that Mr Wickham had reversed his original policy of non cooperation with Mr Kirby, though this was described by the liquidator's counsel as a work in progress.
O’Moore J, taking into account all mitigating factors, reduced to 7 years the period of disqualification to be imposed on Mr Wickham.
Period of disqualification reduced.
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 10th day of July 2023
. This is my decision on an application brought by Miles Kirby, the liquidator of Irish Gold and Silver Bullion Limited (“the company”). A number of reliefs were sought in the originating notice of motion. However, the only matter for the court now to determine is the period (if any) for which disqualification orders (within the meaning of section 838 of the Companies Act 2014) are to be made against the first respondent, Mr. Wickham.
. The judgment will be arranged under the following headings:-
(1) A brief history of these proceedings;
(2) The operation of the company;
(3) Submissions;
(4) Decision.
. On the 14 th of June 2021, the company was wound up by order of O'Regan J. Mr. Kirby was appointed as liquidator of the company. The petition to wind up the company was brought by a creditor of the company, Mr. Vincent McGowne. I will return to Mr. McGowne's experience when I describe the operation of the company.
. On the 25 th of July 2022, the originating notice of motion against Mr. Wickham and a company with whom he was associated, Hamden Development Homes UK Limited (“Hamden”) was prepared on the instructions of the liquidator. In that originating notice of motion, the liquidator sought the following reliefs:-
“(1) An order pursuant to s. 610 (2) of the Companies Act 2014 declaring that the first named respondent be personally responsible, without any limitation of liability, for the debts of the company, or for such portion thereafter the court may direct.
(2) An order granting judgment in favour of the company as against the first named respondent in the sum of €1,038,892.27, plus which other sums as shall appear just.
(3) In the alternative, an order pursuant to s. 612 (2) of the Companies Act 2014 compelling the first named respondent to contribute the sum of €1,038,892.27 to the assets of the company, such other sum as shall appear just to the court, by way of compensation in respect of the misapplication, retainer, misfeasance, breach of duty and/or breach of trust by the first named respondent.
(4) An order pursuant to s. 608 of the Companies Act 2014 directing the second named respondent to pay the sums of (a) €164,674.62 and STG£88,756.34 to the applicant, or such other sums as shall appear just.
(5) A disqualification order as against the first named respondent….”.
. Other reliefs, which are not relevant to the current application, were also claimed.
. While the originating notice of motion was dated the 25 th of July 2022, it was issued through the Central Office the following day. Also, on the 26 th of July 2022 an ex parte application was made on behalf of the liquidator seeking interim relief of a Mareva type against Mr. Wickham. On that day, I made an order pursuant to s. 798 of the Companies Act 2014 restraining Mr. Wickham until after the 5 th of September 2022 from reducing the value of his assets within or outside the State below the sum of €1,038,892.27.
. On the return date for the interlocutory motion, 25 th of September 2022, Quinn J. granted leave to Mr. Wickham to bring an application to vary the interim order, which the judge also continued. As it happens, the original order was continued until the interlocutory injunction motion was heard on the 26 th of January 2023. An interlocutory was then made, in terms to which I will return.
. Significantly, there was a great deal of activity between the hearing before Quinn J. on the 5 th of September 2022 and the hearing of the interlocutory motion on the 26 th of January 2023. This mainly concerned the application to vary the terms of the interim order, which was initiated by a motion issued on behalf of Mr. Wickham on the 26 th of September 2022. It should be noted that the variation to the interim order, as sought by Mr. Wickham, was a mundane one seeking the payment out of monies for living and legal expenses from the funds frozen by the Mareva type order granted in favour of Mr. Kirby.
. Mr. Kirby's affidavit in reply to the application to vary was sworn on the 3 rd of October 2022. On the 5 th of October 2022, Mr. Wickham was given time to file further affidavits in respect of the motion to vary, and that motion was listed for hearing on the 11 th of November 2022. Subsequent to the hearing on the 5 th of October 2022, Mr. Kirby caused a motion to be issued seeking to cross – examine Mr. Wickham on his affidavit sworn in support of the motion to vary. Further affidavits on behalf of Mr. Wickham in respect of the motion to vary were served 13 days late, and Mr. Wickham's legal submissions were also delivered late. As a result, the motion to vary was adjourned to list fixed dates on the 25 th of November 2022. On that day, the solicitors acting for Mr. Wickham (Daly Khurshid) indicated that they could no longer act as they were not in funds to deal with the application to cross – examine Mr. Wickham. That firm was therefore given liberty to bring a motion to come off record, returnable to the 7 th of December 2022 and (on that date) Daly Khurshid were permitted to cease to act for Mr. Wickham. They did so in the context of a letter from Mr. Wickham consenting to that application.
. Ultimately, the application to vary the interim order was never moved. The application for injunctive relief on the part of Mr. Kirby was successful. An interlocutory order was granted to the liquidator broadly mirroring the terms of the original interim order. Analogous orders were made against Hamden. These orders, which were unopposed, were made by me as I was satisfied that it was appropriate to do so in light of the criteria set down by Gilligan J in Kirby v Dowling [2016] IEHC 801. Given...
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