Paul Coyle v Dennis McHugh, Deirde Murphy and Declan Delacy

JurisdictionIreland
JudgeMr. Justice Murray
Judgment Date08 February 2022
Neutral Citation[2022] IECA 31
Docket NumberCourt of Appeal Record No. 2020/120 High Court Record No. 2017/7252 P
Year2022
CourtCourt of Appeal (Ireland)

In the Matter of Decobake Limited (In Liquidation)

and

In the Matter of the Companies Act 2014

Between
Paul Coyle
Applicant/Appellant
and
Dennis McHugh, Deirde Murphy and Declan De Lacy
Respondents

[2022] IECA 31

Murray J.

Collins J.

Pilkington J.

Court of Appeal Record No. 2020/120

High Court Record No. 2017/225 COS

High Court Record No. 2017/7252 P

THE COURT OF APPEAL

CIVIL

Company – Liquidation – Recusal – Appellant seeking the recusal of the trial judge – Whether the trial judge ought to have recused himself

Facts: The High Court (Allen J), on 18 February 2020 ([2020] IEHC 57), made the following nine orders: (i) an order on foot of the motion of the third respondent, Mr De Lacy (the Liquidator), of 29 August 2018 determining that the members of the committee of inspection were Mr O’Mahony, Ms Kennedy, Mr Kiernan, Ms Murphy, Mr Coyle, Ms Coyle and Mr Moffatt, together with an order refusing the application dispensing with the need to fill the vacancy on the committee of inspection which arose on the resignation of Ms Woods on 16 August 2018; (ii) an order refusing the motion of the appellant, Mr Coyle, of 5 October 2018 seeking orders for the removal of the Liquidator and/or annulment of the winding up order and/or orders for the convening of certain meetings together with other orders directed to the composition of the committee of inspection; (iii) an order refusing Mr Coyle’s motion of 4 June 2019 seeking directions to the Liquidator to comply with his obligation under s. 681 of the Companies Act 2014 to file a statement of proceedings and position of the winding up, together with orders requiring him to comply with ss. 684, 686, and 687 of the 2014 Act and other related relief; (iv) an order refusing the Liquidator’s application of 16 September 2019 for an extension of time within which to comply with the requirements of s. 681 of the 2014 Act; (v) an order for the payment by Mr Coyle of the costs of the Liquidator’s motion of 29 August 2018 and of Mr Coyle’s motion issued on 5 October 2018, these to be costs in the liquidation; (vi) an order that there be no orders as to the costs of either Mr Coyle’s motion issued on 4 June 2019 or of Mr De Lacy’s motion issued on 16 September 2019; (vii) an order refusing Mr Coyle’s application that Allen J recuse himself; (viii) an order refusing Mr Coyle’s application to have various questions referred to the Court of Justice of the European Union; and (ix) an order refusing the application for the release of documents discovered in the plenary action. Mr Coyle appealed to the Court of Appeal, raising twenty-seven grounds of appeal. One (ground 12) was a statement rather than a ground of appeal. Murray J grouped together the remaining grounds under seven headings: the claim that the trial judge ought to have recused himself (grounds 15, 22 and 23); the set aside and annulment applications (grounds 1, 2, 3, 4, and (in part) 17); the refusal of the trial judge to make orders under ss. 179, 566, 634, 680, 681, 684, 686, 687 and 689 of the 2014 Act or to refer matters to the ODCE (grounds 7, 8, 9, 10, 11, 18 and 21); the application to remove and/or discharge the Liquidator and/or to ‘issue an order ... for misfeasance’ and/or to issue orders for the protection of the assets of the creditors and management of the liquidation and/or bias in the appointment of the Liquidator (grounds 13, 16, (in part) 17, 19 and 20); the ‘release of discovery motion’, evidence from other cases and the memory stick (grounds 25, 26 and 27); failure to make references to the European Convention on Human Rights and/or the Court of Justice of the European Union (ground 24); and the order for costs (grounds 5, 6 and 14).

Held by Murray J that Mr Coyle had failed on all aspects of the appeal. Murray J’s provisional view was that the costs of the Liquidator and of the first respondent, Mr McHugh (the petitioner), and the parties associated with Dublin City Council who participated in the appeal should (save in one respect) be ordered in their favour and against Mr Coyle; the exception was the costs of the application under s. 681 of the 2014 Act which was moot.

Murray J was of the initial view that no order should be made in respect of the appeal insofar as that application was concerned. Murray J was also of the provisional view that the Court should not interfere with the orders as to costs made by the High Court.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of Mr. Justice Murray delivered on the 8th of February 2022

TABLE OF CONTENTS

Background

3

The application to wind up the Company

5

Events following the liquidation

10

The applications to the High Court and proceedings before, and Orders of, Allen J

12

The claim that the trial judge ought to have recused himself (Grounds 15, 22 and 23)

15

The set aside and annulment applications (Grounds 1, 2, 3, 4, and (in part) 17)

(i) The issue

17

(ii) The Law

18

(iii) Application of domestic law

21

(iv) The judgment in the appeal against the winding up order

23

(v) The ‘new evidence’

26

(vi) ‘A second chance’ under European law and ECHR: the argument

27

(vii) Analysis of the EU law argument

28

(viii) Issues of Constitutional law

(a) The issues

31

(b) The retrospectivity argument

32

(c) Property rights and fair procedures

32

The refusal of the trial judge to make orders under ss. 179, 566, 634, 680, 681, 684, 686, 687, and 689 of the Companies Act 2014 or to refer matters to the ODCE (Grounds 7, 8, 9, 10, 11, 18 and 21)

(i) Section 179

33

(ii) Section 566

34

(iii) Section 634

34

(iv) Section 680

35

(v) Section 681

35

(vi) Section 684

36

(vii) Section 686

36

(viii) Section 687

36

(ix) Section 689

37

(x) Reference to ODCE: Part 14 Chapter 1 of the Companies Act 2014

37

The application to remove and/or discharge the Liquidator and/or to ‘issue an order … for misfeasance’ and/or to issue orders for the protection of the assets of the creditors and management of the liquidation and/or bias in the appointment of the Liquidator (Grounds 13, 16, (in part) 17, 19 and 20)

(i) The principles

37

(ii) The O'Mahonys

39

(iii) The composition of the Committee of Inspection

41

(iv) The voting by the O'Mahonys at the creditors' meeting

43

(v) TIO

43

(vi) Non-engagement with the Committee of Inspection

44

(vii) Failure to provide information to the Committee of Inspection

44

(viii) Legal proceedings against Mr. Coyle

45

(ix) Other legal cases

46

(x) Miscellaneous

46

The ‘release of discovery motion’, evidence from other cases and the memory stick (Grounds 25, 26 and 27)

46

Failure to make references to the ECHR and/or CJEU (Ground 24)

47

The order for costs (Grounds 5, 6 and 14)

49

Background

1. Decobake Limited (‘the Company’) was incorporated on 5 May 2000. At all relevant times prior to its winding up its directors were Paul Coyle and his wife, Margaret Coyle. The Companies Office returns before the court record Mr. and Mrs. Coyle as the sole and equal shareholders in the Company. Mr. Coyle was also the Company's secretary. The Company carried on the activity of supplying baked goods and similar products — Mr. Coyle describes its essential trade as that of specialised cake decorating. It was, he says, the leading Irish brand in that field. To that end it used various methods of decoration which (Mr. Coyle contends) he devised and invented and the intellectual property rights in which (it is his claim) are vested in him. Both Mr. and Mrs. Coyle were employed in the business, as were their two daughters. The Company operated out of properties comprising a warehouse and retail store at Clane Business Park, Clane, County Kildare, together with premises at 3/4 and 26 Bachelors Walk in Dublin.

2. In 2015, Denis McHugh was a rate collector appointed by Dublin City Council (‘the Council’). His function was to collect rates falling due from the occupiers of rateable premises in Dublin city. He is now retired. In 2015 he issued proceedings in the Dublin District Court to recover an alleged liability of the Company for arrears of rates. The Council's claim is that the Company had paid no rates in respect of the premises occupied by it in Dublin City since 2012. Mr. Coyle says that he disputed that the Company had any obligation to pay some or all of these rates. The grounds on which he said he had no such obligation are not developed in the papers he has filed in this court, but appear to revolve around the claim that the Company did not, at some or all of the relevant times, occupy and/or trade from the Bachelors Walk premises. He also makes reference to unspecified ‘exemptions’ which he says applied. In the course of his affidavit sworn for the purposes of the winding up application, Mr. McHugh's solicitor asserted that the Company never alleged in opposition to the three sets of District Court proceedings brought for non-payment of rates that it was not in occupation of the property.

3. On 7 May 2015 a judge of the Dublin District Court granted a decree/warrant of execution in the amount of €13,878.30 for rates due on the premises at 3/4 Bachelors Walk. An application was thereafter brought by the Company to set aside that decree/warrant of execution. That application came before the District Court (Judge O'Neill) on 22 November 2016 and was listed at the same time as two further proceedings that Mr. McHugh had in the meantime caused to be issued, in each of which he also sought to recover arrears of rates...

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    ...is not in itself a basis on which recusal may properly be sought. See for example In the matter of Decobake Limited (In Liquidation) [2022] IECA 31. 7 . As to the E-mail Ground, it was not suggested that either Binchy J. or I had any knowledge of, still less involvement in, the blocking of ......
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    ...sought in his plenary summons to raise an argument based on the decision in Rousk v. Sweden. However as Murray J. stated in Decobake Ltd [2022] IECA 31 (about Rousk) at para. 70: “As I outlined in the course of my judgment in Fennell v. Corrigan [2021] IECA 248 at paras. 105 and 106, that [......

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