National Irish Bank -v- Companies Act, [2006] IEHC 369 (2006)

Docket Number:2005 271 COS
Party Name:National Irish Bank, Companies Act
Judge:O''Donovan J. / Murphy J.
 
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[2006] IEHC 369THE HIGH COURT[2005/271 COS]IN THE MATTER OF NATIONAL IRISH BANK LIMITED AND

IN THE MATTER OF NATIONAL IRISH BANK FINANCIAL SERVICES LIMITED AND

IN THE MATTER OF THE COMPANIES ACTS, 1963 - 2003 AND

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF CORPORATE ENFORCEMENT PURSUANT TO SECTION 160(2) OF THE COMPANIES ACT, 1990

BETWEENTHE DIRECTOR OF CORPORATE ENFORCEMENTAPPLICANTand

BARRY SEYMOURRESPONDENTJUDGMENT of Mr. Justice Diarmuid B. O'Donovan delivered on the 16th day of November, 2006

In this case, the applicant has applied to the court pursuant to Order 75B, rule 7 and/or Order 40, rule 1 of the Rules of the Superior Courts and/or under the courts inherent jurisdiction for an order that the respondent herein do attend the trial of this action and be cross examined on his affidavits sworn and filed herein and that, if he fails to attend for cross examination, the said affidavits shall not be used at the trial of this action. For his part, the respondent maintains that his cross examination on his affidavits sworn herein is entirely inappropriate and, accordingly, he disputes the applicant's entitlement to the relief sought herein. In that regard;

Order 75B, rule 7 of the Rules of the Superior Courts provides:-"Every application under the Act (the Companies Act, 1990 {my insertion}) shall be grounded upon the affidavit of the party making such application and shall be heard and determined on affidavit unless the court otherwise orders." and

Order 40(rule 1) of the Rules of the Superior Courts provides:-"Upon any petition, motion or other application, evidence may be given by affidavit, but the court may, on the application of either party, order the attendance for cross examination of the person making any such affidavit." Order 75B, rule 9 of the Rules of the Superior Courts also enables a court to direct a plenary hearing "in any case in which the court considers that it is either necessary or desirable in the interests of justice to do so (the emphasis is mine)."

BACKGROUND

In these proceedings, the applicant seeks an order that the respondent be disqualified from acting as a director of a company under s. 160(2)(b) and/or s. 160(2)(d) and/or s. 160(2)(e) of the Companies Act, 1990. This application arises from a report of inspectors appointed under s. 8 of the Companies Act, 1990, to investigate the affairs of National Irish Bank Limited and National Irish Bank Services Limited, which report was published by order of the High Court (Kelly J.) made on the 23rd day of July, 2004. The respondent was executive director and de facto chief executive of National Irish Bank Limited between the months of April 1994 and July 1996. In that report, there are findings of improper conduct on the part of National Irish...

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