Minister for Communications & O'C (M) v W (M) & W (R)

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 12 May 2009
• Neutral Citation: [2009] IEHC 413
• Court: High Court
• Docket Number: [Bankruptcy Nos. 5042
• Date: 12 May 2009

Minister for Communications & O'C (M) v W (M) & W (R)

[2009] IEHC 413

BANKRUPTCY

IN THE MATTER OF A BANKRUPTCY SUMMONS BY THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES AND M.O'C.

RESPONDENTS

AGAINST

M.W. and R.W.

APPLICANTS

[2009] IEHC 413

[5042 and 5043]

THE HIGH COURT

BANKRUPTCY

Practice and procedure

Summons - Validity - Inherent jurisdiction of court - Statutory jurisdiction of court - Claim for sum on foot of certificate of taxed costs - Leave to issue summons for sum - Necessity for strict procedural compliance - Seriousness of consequences for debtor - Procedural formalities - Whether debt due where issue of enforceability of costs order yet to be determined by Supreme Court - Whether claim for interest incorrect rendering debt claimed inaccurate - Whether necessary for more than one demand for payment - Whether registration of judgment mortgage process of execution - Adjudication on issue of enforceability of costs order by High Court - Absence of stay - Whether issue arose for trial - Claim for interest in excess of six years -Whether debtor misled by particulars - Whether claim for interest beyond six years statute barred - Whether correct liquidated sum claimed - St Kevin's Company against a Debtor (Unrep, SC, 27/1/1995); Re Sherlock, a Bankrupt [1995] 2 ILRM 493; Re Collier [1891] 64 LT 742; O Maoileoin v Official Assignee [1989] IR 647; In re a Debtor [1908] 2 KB 684; In re Lambe's Estate IR 3 Eq 286 and Barnett v Bradley [1890] 26 LR Ir 209 considered - Statute of Limitations 1957 (No 6), s 11 - Bankruptcy Act 1988 (No 27), s 8 - Rules of the Superior Courts 1986 (SI 15/1986), O 76 - Summons dismissed (5042 & 5043 - McGovern J - 12/5/2009) [2009] IEHC 413

Minister for Communications v W(M)

Facts The applicants (debtors) had a judgment of costs against them taxed at €3,297,493.33 with interest making it a total €5,893,749.83. The applicants claim that the respondents cannot say with certainty that the debt is due to them where the issues of whether the order for costs is enforceable by the respondents has yet to be finally determined by the Supreme Court. Secondly, the applicants also claim since s11(6)(b) of the Statute of Limitations, 1957, provides that no arrears of interest in respect of any judgment debt can be recoverable after the expiration of six years from the date on which the interest became due, the claim for interest in this case is not correct and the amount of the debt claimed is overstated and inaccurate. Thirdly, payment of the sum claimed was not required of the applicants on more than one occasion. Finally, the respondents have registered judgment mortgages against the applicants' property which is a form of execution.

Held by Mc Govern J in granting the relief sought by the applicants, satisfied that an issue arises for trial on the question of interest recoverable; whether or not interest beyond the period of six years can be claimed, and, if not whether a correct liquidated sum has been claimed.

St.Kevin's Company against a Debtor followed.

Reporter: C. O'C

BANKRUPTCY ACT 1988 S8

BANKRUPTCY ACT 1988 S8(6)(B)

SHERLOCK (A BANKRUPT), IN RE 1995 2 ILRM 493 1995/12/3310

COLLIER, IN RE 1891 64 LT 742

O MAOILEOIN v OFFICIAL ASSIGNEE 1989 IR 647 1989/3/644

DEBTOR (NO 478 OF 1908), IN RE 1908 2 KB 684

RSC O.76

RSC O.76 r10(1)

RSC O.76 r13(2)

RSC O.76 r12

STATUTE OF LIMITATIONS 1957 S11(6)(B)

BANKRUPTCY ACT 1988 S8(1)

LAMBE'S ESTATE, IN RE 1869 3 IR EQ 286

BARNETT v BRADLEY 1890 26 LR IR 209

RSC O.76 r12(4)

1 JUDGMENT of Mr. Justice Brian McGovern delivered on the12th day of May, 2009

2 1. This is an application brought by Mr. M.W. and Mr. R.W. ("the applicants") for an order dismissing the bankruptcy summons herein on the grounds of the invalidity of the summons and for such further or other order as to the court may seem appropriate. The application is brought under the inherent jurisdiction of the court and also pursuant to the statutory jurisdiction of the court provided for in s. 8 of the Bankruptcy Act 1988.

3 2. Section 8 of the Bankruptcy Act 1988, states, inter alia:

4 2 " (1) A summons (in this Act referred to a 'bankruptcy summons') may be granted by the Court to a person (in this section referred to as 'the creditor') who proves that-

5 (a) a debt of £1,500 or more is due to him by the person against whom the summons is sought,

6 (b) the debt is a liquidated sum, and

7 (c) a notice in the prescribed form requiring payment of the debt has been served on the debtor

8 ...

9 (3) The notice requiring payment of the debt shall set out the particulars of the debt due and shall require payment within four days after service thereof on the debtor.

10 (4) The bankruptcy summons shall be in the prescribed form.

11 (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.

12 (6) The court -

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

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

15 3. The Minister for Communications, Energy and Natural Resources and M.O'C. ("the respondents") claim that M.W. and R.W. are indebted to them in the sum of €5,893,749.83 inclusive of interest on foot of a Certificate of Taxed Costs issued pursuant to an Order for Costs made by the High Court on 24 ^th February, 1997. The respondents were granted leave of the High Court to issue the bankruptcy summons herein on foot of that amount on 9 ^th February, 2009, and the summons was served on the first-named applicant on 13 ^th February, 2009 and on the second-named applicant on the 12 ^th February 2009.

Relevant legal authorities

16 4. There are a number of legal authorities dealing with applications to dismiss a bankruptcy summons and the principles which apply where an applicant shows cause as to why he should not have been adjudicated a bankrupt.

17 5. In the matter of a bankruptcy summons by St. Kevin's Company against a Debtor, the Supreme Court, in an Unreported extempore judgment delivered on 27 ^th January, 1995, delivered by Hamilton C.J., expressed the view that the correct interpretation of s. 8(6)(b) of the Bankruptcy Act, 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.

18 6. In Re Sherlock, a Bankrupt [1995] 2 ILRM 493, the applicant sought to show why he should not have been adjudicated bankrupt on the grounds that the sums in the notice requiring payment and the bankruptcy summons were inaccurate. He claimed that he should have received a credit for approximately £1,000 against the sum owed of approximately £180,000. In his judgment, Murphy J. stated at p. 494:

" On behalf of the bankrupt, it was argued that if it could be shown that the sums claimed in the demand and in the bankruptcy summons were inaccurate, then failure to pay the sums so demanded could not and did not amount to an act of bankruptcy and, accordingly, that there was no such act on which to ground a valid order of adjudication. In my view, that argument is correct in principle."

19 In the course of that case, a number of decisions were referred to. In Re Collier [1891] 64 L.T. 742, Cave J. said at p. 743:

"... On more than one occasion, the members of the Court of Appeal expressed the opinion that, since the commission of an act of bankruptcy was a serious matter, and involved consequences of what has been called a penal nature, it was important to see that the necessary preliminaries were complied with."

20 In the case of O Maoileoin v. Official Assignee [1989] I.R. 647, Hamilton P. quoted at some length from the decision of Cozens-Hardy M.R. in the case of In Re a Debtor [1908] 2 K.B. 684, at 686-687, as follows:

" This appeal, though it relates only to a small amount, undoubtedly raises a point of importance. The petitioning creditors obtained a final judgment against the debtor. Certain sums were either paid or allowed by way of set-off so that the amount of the judgment debt was reduced. A bankruptcy notice was served on the debtor, and in the margin of that notice there was inserted certain figures which bring out the result that a sum of £984.7s. 1p is the balance of the amount due on the final judgment. The bankruptcy notice proceeds in the usual form requiring payment, and stating that a non-compliance with the bankruptcy notice will involve the consequences, which to some extent are penal consequences, of bankruptcy. The amount claimed in the bankruptcy notice was not due. There was a mistake in the calculation of interest. For the present purpose, I care not what the precise amount of the mistake was. It was, I believe, between £1 and £2, but putting aside the question of amount, this was a bankruptcy notice which said 'if you do not pay a judgment debt which is due and also a further sum which is not due, you are liable to be made a bankrupt'. It is said that it is a formal defect which can be set right under s. 143(1) of the Bankruptcy Act 1883, and that we ought to disregard it or treat it as formal and amend the bankruptcy notice and allow the bankruptcy proceedings to go on. On principle, I am not prepared to accede to that argument. I cannot regard it as a mere formal defect that you claim payment from a man of that which was never due to him. It is not necessary to say that there was any attempt on the part of the petitioning creditors wilfully to exact payment of that...