McMorrow v Morris and Others

JurisdictionIreland
JudgeMR. JUSTICE THOMAS C. SMYTH
Judgment Date13 June 2007
Neutral Citation[2007] IEHC 193
CourtHigh Court
Date13 June 2007

[2007] IEHC 193

THE HIGH COURT

Record No. 3288p/2007
MCMORROW v MORRIS, SIMPLE PALMERA PROPERTIES LTD & ORS
CYRIL McMORROW
Plaintiff

and

KARL MORRIS, SIMPLE PALMERA PROPERTIES LIMITED, SIMPLE OVERSEAS PROPERTIES LIMITED AND SIMPLE PROPERTY GROUP SL
Defendants

CAPITAL EXPANSION & DEVELOPMENT CORPORATION LTD, RE 1992

O'MAHONY v HORGAN 1995 2 IR 411 1996 1 ILRM 161 1995 20 5202

BENNET ENTERPRISES INC v LIPTON 1999 2 IR 221

COURTNEY MAREVA INJUNCTIONS & RELATED INTERLOCUTORY ORDERS 1ED 1998 359

BEAN INJUNCTIONS 8ED 2004 97

CHANEL LTD v F W WOOLWORTH & CO LTD 1981 1 WLR 485

BUTT v BUTT 1987 1 WLR 1351

WEA RECORDS LTD v VISIONS CHANNEL 4 LTD 1983 1 WLR 721

VINT v HUDSPITH 1885 29 CH322

HESSION v JONES 1914 2 KB 421

ST NAZAIRE CO, RE 1878 12 CH 88

ALLUM & ANOR v DICKINSON 1882 9 QBD 632

BELVILLE HOLDINGS v REVENUE COMMISSIONERS 1994 1 ILRM 29

AINSWORTH v WILDING 1896 1 CH 673

SWIRE, MELLOR v SWIRE, RE 1885 30 CH 239

BARRY v BUCKLEY 1981 IR 306

MIN FOR AGRICULTURE v LEIPZIGER 2000 4 IR 32 2001 1 ILRM 519 2003 36 8688

INJUNCTIONS

Mareva

Application to discharge or vary - Allegation that failure to make full disclosure of all material facts - Hession v Jones [1914] 2 KB 421, O'Mahony v Horgan [1995] 2 IR 411 and Minister for Agriculture v Alte Leipziger Versicherung Aktiengesellshaft [2004] IR 32 considered - Application refused (2007/3288P - Smyth J - 13/6/2007) [2007] IEHC 193

McMorrow v Morris

the plaintiff had obtained an interlocutory Mareva injunction from the High Court (Smyth J.) in circumstances where the defendant had failed to open any evidence to the High Court in opposition to that application. The defendant obtained leave to apply to the High Court to vary or discharge that order on the grounds that the plaintiff had failed to make full disclosure of all material facts when applying for the injunction.

Held by Mr Justice Smyth in dismissing the application to discharge or vary his previous order that, once an order was drawn up and perfected, the judge making it had no power to interfere with that order and the appropriate recourse for a person dissatisfied with the order was to appeal to an appellate court from that order.

Reporter: P.C.

1

MR. JUSTICE THOMAS C. SMYTH ON WEDNESDAY, 13TH JUNE 2007

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I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named matter.

APPEARANCES

For the Plaintiff:

MR. PETER FINLAY SC

MR. KEITH P. O'GRADY BL

Instructed by:

KEVIN P. KILRANE AND COMPANY MOHILL

CO. LEITRIM

For the Defendants:

MR. MARTIN GIBLIN SC

MR. NICHOLAS BUTLER SC

MS. ORNA MADDEN BL

Instructed by:

O'DONOVAN SOLICITORS

73 CAPEL STREET

DUBLIN 1

3

COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

4

JUDGMENT WAS DELIVERED BY MR. JUSTICE SMYTH AS FOLLOWS ON WEDNESDAY, 13TH JUNE 2007:

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MR. JUSTICE SMYTH: This extempore judgment is given on foot of an overnight consideration of the matters placed before the Court yesterday. In this regard, I was mindful of the necessity to give an expeditious hearing for an application to discharge an injunction in accordance with the observations made by Millet J. (as he then was), in re Capital Expansion -v- Development Corporation Limited, The Times, November 30th 1992 and also from GVG, which is reported in the Times, November 23rd 1989.

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This matter comes before the Court on foot of a Notice of Motion dated 21st May 2007 seeking an order that do set aside my order of 2nd May 2007. I ignore any infelicities in the notice.

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The history of the litigation may be stated as follows: The solicitor for the Defendants was notified by fax on Friday, 27th April 2007 that the matter of an application for a Mareva injunction was returnable by way of Notice of Motion before Laffoy J. at 2.00pm on that day. The Defendants, represented by counsel, were, on the matter coming on for hearing, handed a supplemental affidavit of the Plaintiff which exhibited an e-mail from one Mr. Kevin Devlin. Counsel for the Defendants indicated to the Court (per the Registrar's note) that he had been involved in an earlier case taken by the 1st, 3rd and 4th Defendants and may have to "get out of the matter". In the affidavit of David o'shea (solicitor for the 1st, 2nd and 4th Defendants) sworn on 3rd May 2007 that it was due to the contents of the e-mail of Mr. Kevin Devlin that he would have to excuse himself from the matter, for present purposes, I attach no adverse significance to the differences on this particular detail as against any Defendant.

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Laffoy J. adjourned the application for a Mareva injunction to Wednesday, 2nd May 2007 at 11.00a.m. to enable the Plaintiff to formally and properly put before the Court the various matters contained in the e-mail of Mr. Kevin Devlin and to enable the Defendants to file such affidavit or affidavits they considered appropriate in reply. On 1st May 2007, Mr. Devlin, who returned to Ireland for the purpose, swore an affidavit and this was duly served on the Defendants at 9.30a.m. on 2nd May 2007. It was stamped at 9.40a.m. on that day and the exhibits therein referred to were handed over to the Defendants at 2.00p.m. on that day on the matter coming into the court. Laffoy J, already engaged in a hearing, was unable to take the case at 11.00a.m. and assigned the case to me for hearing at 2.00p.m.

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on the matter coming on for hearing before me for an interlocutory injunction on notice, the Plaintiff was represented by Senior and Junior counsel. Junior counsel for the Defendant, instructed and attended by the Defendant solicitor, indicated that she was being led by senior counsel who was settling the replying affidavit of the Defendants, and that he would be along presently: she wished that the matter be adjourned because the Defendants had not received the exhibits to Mr. Devlin's affidavit until quite recently and so as to enable the filing of a replying affidavit. The application was resisted by Mr. Peter Finlay SC for the Plaintiff on the basis that (a) the matter was on notice and the Defendants had adequate time within which to file a replying affidavit; (b) that Mr. Devlin's affidavit was merely a verification and amplification of the e-mail exhibited in the supplemental affidavit of the Plaintiff sworn on 27th April 2007; (c) that the rules did not mandate the delivery of the exhibits therein referred to and that in any event such documents were from the records of the Defendants and in fact had been handed to the Defendants. In all the circumstances then prevailing and I was left under the distinct impression that Senior counsel for the Defendants was out with the court and concerned to settle their affidavit and could be expected at about 3.00p.m. or thereabouts. I refused the application for the adjournment mindful that on sight of the bulk of the papers, it could take well in excess of an hour or more to "open" the affidavits and exhibits to the court by which time senior counsel for the Defendants would be in court with their replying affidavit and be in a position to make whatever submissions were appropriate.

10

In the events the affidavits and exhibits in support of the motion were opened and their significance commented upon and legal submissions were made citing, inter alia, O'Malley v. Horgan [1995] IR 411 and Bennet Enterprises Inc v. Lipton [1999] IR 221, this activity took place until approximately 3.30p.m. at which stage Senior counsel for the Defendants had not arrived in court and a renewed application for an adjournment on the like grounds earlier advanced was made. It was stated to the Court that the Defendants' affidavit was only in draft form and I indicated would accept it in such form and overlook any clerical errors or clumsy draftsmanship. I did adjourn the matter from 3.40p.m. to enable the draft to be discussed between solicitor, client and counsel outside the Court. I remained seated in court throughout this period to assure both parties of my availability. At approximately 4.00 to 4.05 counsel for the Defendant, who clearly had the draft affidavit, returned to court with her instructing solicitor and some person or persons who may be the client but declined to make the document available to the Court. Accordingly, bereft of any evidence from the Defendant by their deliberate choice, I made an order in favour of the Plaintiff, which apparently, though not clearly referring to "Schedule Herein Referred to" through inadvertence failed to cite the several banks within and without the jurisdiction referred to in paras. 40 and 41 of the affidavit of the Plaintiff sworn on 25th April 2007, which were the subject of the spoken order of the Court. An affidavit of Karl Morris was sworn on 3rd May 2007 and is noted as having been stamped at 2.16p.m. on that day but not formally filed in the Central office until 21st May 2007 notwithstanding the date first noted on the filing clause i.e. 9th May 2007.

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Some days later, i.e. after 2nd May 2007, without notice to the Plaintiff, counsel for the Defendants applied to me to grant short service of a motion to set aside my earlier order. I declined jurisdiction and expressed the preliminary view that the Defendants' appropriate course was to appeal to the Supreme Court. Furthermore - altogether from any query about the application being made ex parte - I expressed the view that as I had determined the interlocutory application on notice, it would be preferable, if I were wrong in my preliminary view as to the proper course to be followed, for another judge to consider the matter. I became aware on the same...

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