Novell Inc. v MCB Enterprises

JurisdictionIreland
CourtSupreme Court
JudgeMrs. Justice Susan Denham
Judgment Date30 January 2001
Neutral Citation[2001] IESC 204
Date30 January 2001
Docket Number[S.C. No. 277 of 1999]

[2001] IESC 204

THE SUPREME COURT

Denham J.

Murray J.

Geoghegan J.

Record No. 277/1999
NOVELL INC v. MCB ENTERPRISES & ORS
IN THE MATTER OF A HIGH COURT APPLICATION
IN THE MATTER OF AN APPLICATION BY THE UNITED STATES DISTRICT
COURT/ FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
IN THE MATTER OF PROCEEDINGS IN THE COURTS OF THE CENTRAL
DISTRICT OF UTAH
IN CONSOLIDATED CASES NO. 2: 29CV00200B

BETWEEN

NOVELL INC.
PLAINTIFF/RESPONDENT

and

MCB ENTERPRISES, ET AL.
DEFENDANTS
NOVELL INC.
PLAINTIFF/RESPONDENT

and

COMPUTER RECYCLERS, ET AL.
DEFENDANTS
AND IN THE MATTER OF ORDER 39 RULE 39 OF THE RULES OF THE
SUPERIOR COURTS

BETWEEN

SEAN RAINEY AND JACQUELINE RAINEY
APPELLANTS

and

NOVELL INC.
RESPONDENT

Citations:

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S5

RSC O.39 r39

RAINEY V NOVELL INC UNREP SUPREME EX-TEMP 11.4.2000

RADIO CORPORATION OF AMERICA V ROWLAND CORPORATION 1956 1 AER 545

AIR CRASH IN THR FLORIDA EVERGLADES V VALUJET AIRLINES 1999 2 IR 468

CHOMUTOV SAVINGS BANK, IN RE 1957 IR 355

FOREIGN TRIBUNALS EVIDENCE ACT 1856 S1

FIRST AMERICAN V SHEIKH AL-NAHYAN 1998 4 AER 439

RIO TINTO ZINC CORPORATION V WESTINGHOUSE ELECTRIC CORPORATION 1978 AC 547

Synopsis

PRACTICE AND PROCEDURE

Tribunal

International law - Evidence - Examination on oath - Fair procedures - Comity of nations - Copyright - Allegations of fraud - Computer software - Discovery - Privilege against self-incrimination -Whether proposed examination oppressive - Rules of the Superior Courts, 1986 Order 39, rule 39 - Foreign Tribunals Evidence Act, 1856 (277/1999 - Supreme Court - 30/1/01) [2001] 1 IR 608 - [2002] 1 ILRM 350

Novell Inc v MCB Enterprises & Rainey

O'Sullivan J had ordered the appellants to appear for examination on oath before barrister pursuant to the Foreign Tribunals Evidence Act, 1856. The appellants sought to have the order of the High Court overturned. The appellants claimed that the request for examination was essentially a request for discovery and not "testimony" as set out under the Foreign Tribunals Evidence Act, 1856. Denham J, delivering judgment, held that in having regard to the constitutional guarantee of fair procedures the court must ensure that parties to litigation were allowed to bring their cases on an equal and fair footing. If the plaintiff/respondent was permitted to examine the appellants it would give them an advantage and potentially place the appellants in an invidious position with regard to preparing and advancing their own defence. In such circumstances it would be oppressive for the examination to proceed, the appeal would be allowed and the order of the High Court set aside.

1

Mrs. Justice Susan Denham on the 30th day of January, 2001.

1. Issue
2

This is an appeal by Sean Rainey and Jacqueline Rainey, hereinafter referred to as the appellants, against an order made by the High Court (O'Sullivan J.) on the 18th October, 1999, and the subsequent refusal to discharge the same order on the 30th November, 1999, for the examination on oath of the appellants before an examiner, Paul McGarry, Barrister-at-Law, pursuant to the Foreign Tribunal's Evidence Act, 1856, and Order 39 Rule 39 of the Rules of the Superior Courts. The appellants ask this court to exercise its discretion under the Foreign Tribunal's Evidence Act, 1856, and refuse the application that there be an examination of the appellants on oath or affirmation and production of documents for the benefit of court proceedings in Utah.

2. The High Court
3

On the 18th October, 1999, the High Court (O'Sullivan J.) ordered that P.J. Kennedy, Sean Rainey and Jacqueline Rainey attend before Paul McGarry, Barrister at Law, who was appointed examiner, and to submit to being examined on oath or affirmation touching the testimony so required and do then and there produce:

4

1) All documents that refer or relate to any IntranetWare for small Business or other Novell Inc software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey received from Modus Media International or any other person or company in 1997 such as invoices order forms purchase order packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth.

5

2) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey sent to MBC Enterprises LLC and/or James Craghead in 1997 1998 or 1999 such as invoices order forms purchase order packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

6

3) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc Software that MBC Enterprises LLC and/or James Craghead returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey in 1997 1998 or 1999 such as invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

7

4) All documents that refer to any IntranetWare for Small Business or other Novell Inc. Software that AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey sent to Computer Commodity Inc. And/or Michael Jacobson in 1997 1998 or 1999 such as invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

8

5) All documents that refer or relate to any IntranetWare for Small Business or other Novell Inc. Software that Computer Commodity Inc. And/or Michael Jacobson returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey in 1997 1998 or 1999 such invoices order forms purchase orders packing slips inventory lists or reports purchase or acquisition reports receipts correspondence documents evidencing payment accounting reports and so forth

9

6) All documents including but not limited to letters facsimiles e-mail and other correspondence whether electronic or written both draft and final versions between AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey and MBC Enterprises LLC James Craghead Computer Commodity Inc. And/or Michael Jacobson in 1997 1998 or 1999 that refer or relate to any IntranetWare for Small Business or other Novell Inc software

10

7) All copies of IntranetWare for Small Business or other Novell Inc. Software that MBC Enterprises LLC James Craghead Computer Commodity Inc and/or Michael Jacobson returned to AUI P.J. Kennedy Sean Rainey and/or Jacqueline Rainey."

11

The High Court ordered that the examiner take down in writing the evidence of the said witnesses and when completed transmit same to the Master of the High Court for transmission to the President of the Tribunal desiring the evidence of such witnesses.

3. Appeal
12

Against that order the appellants have appealed to this court on the grounds that:

13

1. The learned High Court Judge erred in law and failed to give any or any sufficient weight to the submission on behalf of the appellants that the affidavit upon which the order was granted was not a full and frank affidavit and did not disclose to the court matters which were material to the applicant, in particular that there were proceedings in Ireland between the plaintiff and the appellants arising from the same matters which were the subject of the said proceedings in Utah; that there was a criminal investigation taking place in Ireland arising from matters common to the Irish and Utah proceedings;

14

2. That having regard to the foregoing the plaintiff was manœvring itself into a position whereby it could cross-examine the appellants before the Irish proceedings came on for plenary hearing and thereby circumvent the normal procedure in a common law jurisdiction and the appellants' right to fair procedures under the Constitution that the defendants can elect to testify or not to testify in the course of proceedings and if that they do elect to testify that the normal procedure would be that they give their evidence direct before cross-examination.

4. Stay
15

On the 7th December, 1999, this court ordered that the order of the High Court dated the 18th October, 1999, insofar as it relates to the appellants be stayed until after the determination of the appeal. The court noted the undertaking of counsel on behalf of the appellants to expedite the lodgement in the Office of the Registrar of all relevant books of appeal and that the appeal be listed for mention before this court on the 14th January, 2000.

5. Amendment of Notice of Appeal
16

The appellants then brought a motion to the Supreme Court seeking to amend the appellants' notice of appeal by the addition of a number of grounds. In an ex tempore judgment on the 11th day of April, 2000, the Supreme Court, Murphy J., with whom the other members concurred, held:

17

"This is an application in the first instance by the Appellants for liberty to amend the notice of appeal served by them herein. Effectively, it might be said that the original notice of appeal sought to make the case that the learned trial Judge, Mr. Justice O'Sullivan, in making the order which he did under the Foreign Tribunals Evidence Act, 1856, had erred in the exercise of his discretion. Now it is sought to make the case that he had no jurisdiction to make the order. Whilst this may seem a radical amendment that is not quite the case and indeed the need for the amendment is explained by the circumstances which have evolved since the hearing before Mr. Justice O'Sullivan.

18

Effectively at issue is the nature of the process which it was intended to conduct in this jurisdiction pursuant to the letter of request...

To continue reading

Request your trial
3 cases
  • Cornec v Morrice and Others
    • Ireland
    • High Court
    • 18 September 2012
    ...2011 IEHC 10 CUSTOM HOUSE CAPITAL LTD (NO 2), IN RE UNREP HOGAN 28.10.2011 2011/10/2277 2011 IEHC 399 NOVELL INC v MCB ENTERPRISES 2001 1 IR 608 2002 1 ILRM 350 2001/18/4904 SEYFANG v GD SEARLE & CO & ANOR 1973 QB 148 1973 2 WLR 17 1973 1 AER 290 O'KELLY, IN RE 1974 108 ILTR 97 JUDGE MAH......
  • Neal R Cutler, MD v Azur Pharma International III Ltd and Others
    • Ireland
    • High Court
    • 11 June 2015
    ...a discretion in relation to the matter as recognised in the judgment of Denham J. (as she then was) in Novell Inc. v. MCB Enterprises [2001] 1 I.R. 608, although he accepted that the same judgment was authority for the proposition that the court should be favourably disposed towards giving......
  • U.Dori Construction Ltd v Greaney
    • Ireland
    • High Court
    • 7 July 2017
    ...party in the same or related proceedings, and he quoted from Denham J. in the Supreme Court in Novell Inc. v. M.C.B. Enterprises [2001] 1 I.R. 608. She said:- ‘There are essentially two matters which the court has to decide. The first is whether in all the circumstances the proposed examina......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT