Neilan, State (Wilson)

• Jurisdiction: Ireland
• Judgment Date: 18 June 1985
• Date: 18 June 1985
• Docket Number: [1984 No. 8465P]
• Court: High Court

Larkins v. N.U.M.

Brian Larkins, Peter Padmore, Peter Barrows, Edward Wilson Hoult, and Michael John Arnold (claiming as receiver of National Union of Mineworkers)

Plaintiffs

and

National Union of Mineworkers and Bank of Ireland Finance Limited Defendants

[1984 No. 8465P]

High Court

Conflict of laws - Enforcement - Injunction - Interlocatary - Mareva relief - Foreign trade union - Foreign court imposing fine for trade union's contumacious civil contempt - Union's funds transferred to Irish bank - Foreign sequestrators seeking vesting of union funds - Irish bank and union restrained from transferring funds - Foreign court removing union's trustees and appointing receiver - Foreign receiver seeking vesting of funds - Whether sequestration on receivership enforceable in this jurisdiction - Whether either a penal process - Whether order appointing receiver final and conclusive - Whether court should make an inspection order ex parte - Power of the High Court to order the production or inspection of a bank's books, documents or computer printouts - Bankers' Books Evidence (Amendment) Act, 1959 (No. 21).

Proceedings had been commenced in the English High Court against the first defendant, being a trade union set up, organised and carrying on its affairs in England in accordance with the law of that country. The English High Court had made an order restraining the first defendant from doing certain acts, including instructing or urging any of its members to strike or not to work or not to pass any picket-line in the Yorkshire area of the union. The first defendant was subsequently adjudicated to be in contempt of that court for failing to comply with certain parts of its order and was fined £200,000 with 14 days to pay. The first defendant having failed to pay the fine, the English High Court appointed the first, second, third and fourth plaintiffs as sequestrators over the real and personal property of the first defendant, the writ of sequestration to remain in force until the first defendant should purge its contempt or until further order. The order of sequestration expressly authorised the sequestrators to prosecute proceedings in Ireland seeking the recovery of funds of the first defendant currently on account with the second defendant, and to apply in such proceedings for whatever interlocutory relief might be appropriate.

The sequestrators applied to the High Court (Barrington J.) and were granted an interim injunction, inter alia, restraining the first and second defendants or any person acting in concert with them or any person with notice of the making of the order, in particular, any financial institution or bank, within the jurisdiction of the Court, from disposing of or otherwise dealing in any manner whatsoever with any monies held to the account of the first defendant, and ordering the second defendant to produce for the inspection of the first four plaintiffs, the bankers' books, including correspondence or computer printouts from electronic recordings relating to any account of the first defendant held by the second defendant.

The second defendant, having complied with the interim order, applied ex parte to the High Court and was granted an order dismissing it from the action.

By interlocutory order in a further set of proceedings commenced in the English High Court, the three existing trustees of the first defendant's assets were removed from their positions and the fifth plaintiff was appointed receiver pending the trial of the action, with express authority to institute proceedings in any jurisdiction for the purpose of recovering any of the assets, save in so far as the assets might from time to time be in the possession or control of any sequestrator appointed by the English High Court. The receiver applied to this High Court to be joined as a fifth plaintiff in these proceedings, and the second defendant applied to be rejoined as a second defendant, both of which applications were granted.

At the trial of the action in which the first four plaintiffs acting as sequestrators and the fifth plaintiff acting as receiver claimed to be entitled to the monies the property of the first defendant on deposit with the second defendant it was

Held by Barrington J., in dismissing the claims of the sequestrators and continuing the interim injunction, 1, that the contempt of which the union was convicted fell into the category of contumacious civil contempt, having ceased to be a mere matter between private litigants but having called into question the authority of the English High Court.

2. That the sequestration process whether civil or criminal in nature and whether coercive or punitive in purpose was penal in effect, being a process for establishing the authority of the court against a recalcitrant litigant and punishing it for its contempt.

3. That the High Court would not entertain a suit brought for the purpose of enforcing within this State a penal law or process of a foreign State.

Buchanan Ltd. and Another v. McVey [1954] I.R. 89, applied.

4. That there were independent grounds for the appointment of the receiver and that the receivership was not simply an indirect method of enforcing the sequestration and thus an indirect attempt to enforce within this State the penal law or process of a foreign State.

5. That the foreign order appointing the receiver, being interlocutory in nature, and the union (the owner of the funds) opposing the payment of the funds to the receiver, it was doubtful whether there were any trustees entitled to hold the union funds on behalf of the union at the present time.

6. That accordingly, the funds were to be preserved with the second defendant until permanent trustees of the union's property were identified or appointed in accordance with the provisions of English law.

Semble: In the normal course there would be no justification for making an inspection order ex parte such as the one made against the bank in this case and a freezing order would be sufficient to maintain the status quo, but the necessity for the ex parte order in this case arose from the fear that a portion of the funds had already been transferred to other financial institutions in the State the identities of which were unknown to the sequestrators.

Semble: That the purpose of the Bankers' Books Evidence Acts, 1879-1959, was merely to facilitate bankers by allowing them in certain circumstances to prove the contents of some of their books by secondary evidence and that there was nothing in these Acts or in the decision of Murphy J. in O'C. v. D.[1985] I.R. 265 to circumscribe the power of the High Court in an appropriate case to order the production or inspection of any of the bank's books, documents or computer printouts.

O'C. v. D. [1985] I.R. 265 considered.

Cases mentioned in this report:—

Buchanan Ltd. and Another v. McVey [1954] I.R. 89; (1957) 90 I.L.T.R. 121.

Keegan v. de Burca [1973] I.R. 223.

Phonographic Performance Ltd. v. Amusement Caterers (Peckham) Ltd. [1964] Ch. 195; [1963] 3 W.L.R. 898; [1963] 3 All E.R. 493.

In re Gratham Wholesale Fruit Vegetable and Potato Merchants Ltd.[1972] 1 W.L.R. 559.

Comet Products U.K. Ltd. v. Hawke Plastics Ltd. [1971] 2 O.B. 67; [1971] 1 All E.R. 1141.

Yianni v. Yianni [1966] 1 W.L.R. 120; [1966] All E.R. 231.

Perry v. Zissis [1977] 1 Lloyd's Rep. 607.

Macaulay v. Guaranty Trust Company of New York (1927) 44 T.L.R. 99.

Z. Ltd. v. A-Z and AA-LL [1982] Q.B. 558; [1982] 2 W.L.R. 288; [1982] 1 All E.R. 556; [1982] 1 Lloyd's Rep. 240.

A. and B. v. C. [1980] 2 All E.R. 347; [1980] 2 Lloyd's Rep. 200.

O'C. v. D. [1985] I.R. 265; [1985] I.L.R.M. 123.

Plenary Summons.

On the 4th November, 1984, the first four plaintiffs applied ex parte to the High Court and obtained an order inter alia granting liberty to issue an originating concurrent summons against the first defendant and to serve notice of the summons upon the first defendant at Yorkshire in England. The first four plaintiffs further sought and obtained an interim injunction details of which are set out in the headnote supra and more fully in the judgment of Barrington J. post.

On the 5th November, 1984, the first four plaintiffs issued a plenary summons against the first and second defendants claiming:—

• (i) a declaration that all monies held by the second defendant to the account of the first defendant, whether held in the name of the first defendant its officers, servants, agents or nominees or otherwise howsoever, or in respect of which such persons had direct or indirect power to draw were held on trust for the plaintiffs;

• (ii) a declaration that the first four plaintiffs were entitled to the immediate possession of the monies;

• (iii) a permanent injunction in the terms granted at the interim stage;

• (iv) an inspection order in the terms granted at the interim stage.

The second defendant having complied with the interim order of the 4th November, 1984, applied on the 6th November, 1984, with the consent of the parties to be dismissed from the proceedings, which application was granted.

On the 10th December, 1984, the second defendant applied and was allowed to be rejoined as a defendant in the proceedings in order to address the court on the terms of the interim order made against it on the 4th November, 1984, and on the form of the final order to be made in the case. On the same date the fifth plaintiff applied for and was granted an order directing that he be added as a plaintiff to the proceedings. The fifth plaintiff delivered its statement of claim on the 20th December, 1984, claiming, inter alia:—

• (i) a declaration that all monies held by the second defendant to the account of the first defendant whether in its name or in the name of any other person is held on the account of the fifth plaintiff and subject to the control and direction of the fifth plaintiff alone;

• (ii) a declaration that the fifth plaintiff is entitled to immediate...