Personal Insolvency Acts 2012-2015 v Fay (a Debtor)

• Jurisdiction: Ireland
• Judge: Mr. Justice Denis McDonald
• Judgment Date: 08 May 2020
• Neutral Citation: [2020] IEHC 207
• Date: 08 May 2020
• Docket Number: [2019 87 C.A.]
• Court: High Court

MIDLANDS CIRCUIT

COUNTY OF LAOIS

IN THE MATTER OF THE PERSONAL INSOLVENCY ACTS, 2012-2015

AND

IN THE MATTER OF MARK FAY (A DEBTOR)

[2020] IEHC 207

Denis McDonald J.

[2019 87 C.A.]

THE HIGH COURT

CIRCUIT APPEAL

JUDGMENT on costs of Mr. Justice Denis McDonald delivered on 8th May, 2020

1 This judgment deals with the costs of this appeal from the Circuit Court. The substantive appeal was the subject of a judgment delivered by me on 6th April ( [2020] IEHC 163). For the reasons discussed in that judgment, I ultimately determined that I should dismiss the appeal brought by the objecting creditor, Pepper Finance Corporation (Ireland) DAC (” Pepper“) from the decision of the learned Circuit Court judge. Instead, I affirmed the order made by the Circuit Court confirming the coming into effect of a personal insolvency arrangement proposed on behalf of the above named debtor, Mr. Mark Fay, by his personal insolvency practitioner, Ms. Judy Mooney ( “The practitioner”).

2 Following delivery of judgment electronically on 6th April, 2020, I invited submissions from the practitioner and from Pepper in relation to the issue of costs. When no submissions were received within the timeframe envisaged in my judgment of 6th April, 2020, the registrar wrote to the parties that I was proposing to proceed on the basis that there should be no order as to costs. Following that communication from the registrar, written submissions were delivered on behalf of the practitioner in which she formally sought an order for costs. It was stressed in those submissions, that under the Legal Aid Board “Abhaile” scheme, the practitioner is under an obligation to seek costs of any application in which an objection by an objecting creditor is overruled by the court. At the same time, those submissions acknowledged that, in the particular circumstances of this case, it might be more appropriate to make no order as to costs.

3 In circumstances where the practitioner (albeit belatedly) applied for the costs of the appeal, I invited submissions from Pepper. Thereafter, very helpful and comprehensive written submissions were delivered on behalf of Pepper which have been of considerable assistance to me in relation to the issue. In those submissions, Pepper urged that the court should make no order as to costs.

4 In its submissions, Pepper, as a preliminary matter, emphasised that the order to be made by the court should reflect the uncontested application made in the course of the hearing of the appeal to substitute Pepper as the objecting creditor in place of Cooperatieve Rabobank U.A. That application was uncontested and both parties proceeded on the basis that the court would formally make an order at the conclusion of the proceedings giving effect to the agreed position. If such an order has not already been perfected, then it will be incorporated in the final order to be made on foot of this judgment and on foot of the judgment of 6th April, 2020.

5 Insofar as the costs of the appeal are concerned, Pepper understandably emphasises the very particular facts of this case which are addressed in detail in my judgment of 6th April. The striking feature of this case was the issue which arose in relation to the quality of the evidence placed before the court by the practitioner. While the issue arose principally in relation to affidavits sworn by the debtor, I must keep in mind that the practitioner was the moving party and she, therefore, bears ultimate responsibility for the evidence which she chose to place before the court.

6 While I have...