Philip Ward v Tower Trade Finance (Ireland) Ltd & Aengus Burns
| Jurisdiction | Ireland |
| Judge | Mr. Justice Haughton,Mr. Justice Noonan |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] IECA 9 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Number: 2021/97 |
[2022] IECA 9
Whelan J.
Noonan J.
Haughton J.
Court of Appeal Record Number: 2021/97
High Court Record Number: 2021/849P
THE COURT OF APPEAL
Interlocutory injunction – Sale of lands – Fair issue to be tried – Appellant seeking an interlocutory injunction – Whether the appellant had established a fair issue to be tried
Facts: The plaintiff/appellant, Mr Ward, the registered owner of lands, applied to the High court seeking an interlocutory injunction restraining the sale of lands by the first defendant/respondent, Tower Trade Finance (Ireland) Ltd, to whom the lands had been charged by the plaintiff, or the second defendant/respondent, Mr Burns, who was a receiver appointed by the first defendant in exercise of a power created by the deed of charge. The core underlying claim was for a declaration that the charge was invalid and an order for the rectification of the Register. The High Court (Allen J) held that the onus was on the plaintiff to establish, in the first place, that there was a fair issue to be tried. Allen J was satisfied that the plaintiff had failed to do so. The plaintiff appealed to the Court of Appeal from the judgment and order of Allen J of the 12th March, 2021 whereby he refused the plaintiff’s application for an interlocutory injunction.
Held by Noonan J that the trial judge applied the correct test in applications for interlocutory injunctions by reference to long established and well settled case law. Noonan J held that the plaintiff had not raised any issue in the proceedings which would remotely qualify as a fair issue to be tried and it seemed to Noonan J that that must be the end of the enquiry. Noonan J held that, this being a discretionary interlocutory application, it was well settled that the Court of Appeal would be very slow to interfere with the exercise of that discretion by the High Court unless a clear error of law had been made or an injustice arose. Noonan J held that there was nothing in this case to suggest either of those things.
Noonan J dismissed the appeal.
Appeal dismissed.
JUDGMENT ( Ex Tempore) of Mr. Justice Haughton delivered on the 13th day of January, 2022
I agree with the judgment just delivered by Judge Noonan, but would add the following.
The first requirement for a plaintiff seeking a prohibitory interlocutory injunction is that they show a fair or serious question to be tried. Absent a fair question to be tried, it is not necessary for the court to proceed to consider the balance of convenience or adequacy of damages.
The appellant in essence argues that two issues arise for trial:
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(a) The first is based on clause 24 of the Trading Agreement in which the parties submitted to South African law and jurisdiction. This is unstateable firstly because clause 24 uses the phrase “non-exclusive jurisdiction”, thus not excluding jurisdiction before the Irish courts, and secondly because the agreement is in any event clearly superseded by the Settlement Agreement in which the appellant expressly submits to the exclusive jurisdiction of the Irish Courts. This was expressly agreed by Philip Ward in clause 7 of the Settlement Agreement entitled “ENTIRE AGREEMENT” which provides:
“This settlement agreement, to include the documents annexed hereto, constitutes the entire agreement between the Parties with respect to the within actions and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter”
This makes it clear that the Trading Agreement was extinguished by the Settlement. This was one of the clauses which the court is entitled to assume was explained by Ms. Skinnader to the appellant.
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(b) The second issue argued is a claim based on misrepresentation in relation to the Trading Agreement and clause 24, and is also unstateable. There is no evidence of any misrepresentation whatsoever. Philip Ward signed the Trading Agreement on behalf of the company and must therefore be taken to have known and understood the contents of that agreement. There is no evidence that the Trading Agreement was not disclosed — it is accepted that it was an exhibit in an affidavit sworn in the Summary Summons proceedings. Moreover the Settlement Agreement was obviously reached at arms-length and independent legal advice was sought and received by the appellant before he entered into the Settlement.
These arguments, which were made and correctly rejected in the High Court, do not come near reaching the relatively low threshold test of a fair or serious question to be tried. They are, as Judge Noonan has said, “patently untenable and misconceived”.
I would go further, and describe them as spurious, being entirely unfounded in law and fact, and entirely without merit.
This appeal is frivolous and vexatious and in my view should not have been pursued. It is one that in my view responsible solicitors and counsel would have advised their client should not be pursued.
I would also dismiss this appeal.
Whelan and Noonan JJ. concur with this judgment.
JUDGMENT ( Ex Tempore) of Mr. Justice Noonan delivered on the 13th day of January, 2022
The appeal before the court today is brought from the judgment and order of the High Court (Allen J.) of the 12th March, 2021 whereby he refused the plaintiff's application for an interlocutory injunction restraining the sale of certain lands.
I propose to adopt the statement of the facts, which are not in dispute, set out in the judgment of the High Court and a brief summary of the relevant matters will suffice.
The plaintiff is the father of Michael Ward who appears to be the beneficial owner of a company called Michael Ward Engineering Limited (“the Company”). The plaintiff and his son are both directors of the Company. On the 8th December, 2014, the first defendant (“Tower”) entered into a contract with the Company described as a Trading Agreement. This agreement was in effect a form of loan arrangement whereby Tower agreed to discharge debts to the Company's trade creditors as they fell due in consideration of specified commission and charges levied by Tower. The agreement was executed on behalf of the Company by the plaintiff and his son. Clause 24 of the agreement provided as follows:-
“The terms and conditions of this agreement shall be construed in accordance with the laws of South Africa. The supplier and buyer submit to the non-exclusive jurisdiction of the High Court of South Africa, South Gauteng Local Division.”
On the same date as the Company entered into the Trading Agreement, Michael Ward entered into a guarantee and indemnity with Tower whereby he agreed to guarantee, as principal obligor, all sums due by the Company to Tower. Clause 25 of the guarantee provided as follows:-
“25.1 This guarantee and indemnity is governed by and shall be construed in accordance with the laws of Ireland and the guarantor hereby irrevocably submits to the jurisdiction of the Irish courts.”
Pursuant to the terms of the Trading Agreement, by a further agreement of the 11th February, 2015 Tower made available to the Company a trading facility of €100,000. On foot of that facility, Tower paid various suppliers of the Company the sum of €100,125.74. The Company defaulted in repaying this sum to Tower and this eventually led to the Company being wound up on the 16th October, 2015. Arising from the Company's default, demands for payment of the sums due by the Company were made of Michael Ward pursuant to his guarantee in the total amount of €132,032.40. This comprised the principal sum together with accrued contractual interest.
On the 20th November, 2015, Tower issued a summary summons against Michael Ward seeking judgment for the amount claimed. No proceedings issued against the Company.
It would appear that the summary proceedings came before the High Court on a number of occasions and ultimately were compromised. The terms were reduced to writing in a document entitled “Settlement Agreement”. There is no dispute about the terms of this agreement. The parties to the agreement are Tower, Michael Ward and the plaintiff. It provided that Michael Ward consented to judgment for the full sum claimed of €132,032.40. However, there would be a stay for 12 months on entry and execution of judgment on condition that the sum of €100,000 was paid by Michael Ward to Tower within that period whereupon the stay would become permanent.
In addition, the plaintiff consented to provide security for his son's obligations under the settlement agreement in the form of a charge over lands owned by the plaintiff and comprised in Folio 12329F, County Monaghan, being a little over 12 acres of agricultural land. The plaintiff further agreed to execute a suite of documents including a guarantee, a family home declaration and a deed of charge. Clause 10 of the settlement agreement provided that it was to be governed by Irish law and the parties submitted to the exclusive jurisdiction of the Irish courts.
In the summary proceedings against Michael Ward, he was represented by Mr. Matthew Wales, solicitor, and counsel at all material times. The terms of relevant correspondence concerning the settlement agreement between Mr. Wales and the plaintiff are set out in full in the High Court judgment herein. Essentially, Mr. Wales advised the plaintiff that he should seek independent legal advice before executing the settlement agreement.
The plaintiff did so and was provided with such advice by Ms. Anne Skinnader of McEntee and O'Doherty Solicitors. The fact that he was provided with such independent advice by Ms. Skinnader is demonstrated by a memorandum to that effect signed by her and attached to the settlement...
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