Popely v Popely

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 05 May 2006
• Neutral Citation: [2006] IEHC 134
• Docket Number: [2004 No.
• Court: High Court
• Date: 05 May 2006

[2006] IEHC 134

THE HIGH COURT

[No. 10397 P/2004]

POPELY v POPELY & ORS

BETWEEN/

RONALD ALBERT POPELY

PLAINTIFF

AND

JOHN HENRY POPELY, SIMON ASHLEY COULDRIDGE, CARAGH ANTOINETTE COULDRIDGE, LINDA ENRIGHT, WILLIAM VAN HEIJNINGEN AND DEREK JOHN MURPHY

DEFENDANTS

EEC REG 44/2001 ART 27

EEC REG 44/2001 ART 28

EEC REG 44/2001 ART 24

EEC REG 44/2001 ART 22.2

EEC REG 44/2001 ART 22

BRIGGS & REES CIVIL JURISDICTION & JUDGEMENTS 3ED 2002 77

LAYTON & MERCER EUROPEAN CIVIL PRACTICE 2ED 2004 745

GUBISCH MASCHINENFABRIK AG v PALUMBO 1987 ECR 4861

TATRY v MACIEJ RATAJ 1994 ECR I-5439

GANTNER ELECTRONIC GMBH v BASCH EXPOLITAIRE MAATSCHAPPIJ 2003 ECR I-4207

BRUSSELS CONVENTION ART 21

EEC REG 44/2001 ART 21

EEC REG 44/2001 ART 30

TIMESHARE ACT 1992

EEC REG 44/2001 ART 28.2

EEC REG 44/2001 ART 28.1

EEC REG 44/2001 ART 28.3

CONFLICT OF LAWS

Jurisdiction

Company law - Recognition and enforcement of judgments - Proceedings involving same cause of action in being in England -Whether Irish courts should decline jurisdiction - Whether stay pending proceedings before English courts appropriate- Conditional appearance entered in Irish proceedings - Whether proceedings in Ireland and England have âÇÿsame cause of action' -Whether irreconcilable judgments might result - Whether cases are âÇÿrelated actions' -Case 144/86 Gubish Maschinenfabrik KG v Palumbo [1987] ECR 486, Case C-406/92 The Tatry [1994] ECR I-5439 and Case C-111/01 Ganner Electronic GmbH v Basch Expolitatie Maatschappij BV [2003] ECR I-4207 considered - Council Regulation (EC)No 44/2001, articles 22, 24, 27 and 28 -Relief refused (2004/10397P - Finlay Geoghegan J - 5/5/2006) [2006] IEHC 134, [2006] 4 IR 356 Popely v Popely

The first named defendant brought an application for the Irish Courts decline jurisdiction or to stay proceedings brought, pursuant to Council Regulation EC 44/2001, on the grounds that proceedings involving the same cause of action and same parties had already been brought in England or alternatively that a related action was pending.

Held by Finlay Geoghegan J. that the object of the English proceedings was to establish whether the first named defendant was entitled to a one-third beneficial interest in the proceeds of a sale of a property whereas the object of the Irish proceedings was to determine whether the plaintiff was the beneficial owner of shares in a separate property. Neither the object nor cause of action of the proceedings was the same and no risk of irreconcilable judgements existed.

Reported: E.F.

1 Judgment of Ms. Justice Finlay Geoghegan delivered the 5th day of May, 2006.

2 The present application is brought by the first named defendant, John Henry Popely ("John Popely") on a motion issued on the 14th July, 2005, seeking, inter alia, orders:

3 1. that this Court decline jurisdiction in these proceedings or, in the alternative, stay the proceedings pursuant to article 27 of Council Regulation E.C./44/2001 of 22 December, 2000 on jurisdiction and the recognition and enforcement of judgments in civil commercial matters, O.J. L 012/1 16. 1.2001, by reason of the fact that proceedings involving the same cause of action and between the same parties had already been brought in England and jurisdiction in those courts has been established; and

4 2. in the alternative, an order staying the proceedings between the plaintiff and the first named defendant or, in the alternative, declining jurisdiction pursuant to the provisions of article 28 of Council Regulation E.C./44/2001 on the grounds that a related action between the plaintiff and the first named defendant is pending before the English courts.

Background to proceedings

5 The plaintiff, Ronald Popely is the younger brother of John Popely. It appears that the brothers were in business together for some time prior to 1997. The business related to resort accommodation and facilities in the Turkish Republic of Northern Cyprus known as the Long Beach Club and the Hever Golf and Country Club in Kent, England. The brothers appear to have conducted their business through a complex series of companies, many of which were offshore of the United Kingdom and the shares in those companies also appear to have been held through offshore trusts possibly controlled by the brothers and/or their families. I use the term "possibly" as there is now much dispute between the brothers as to the precise arrangements. Insofar as I describe the background facts I am not intending to make any findings of fact. Much of precise factual situation is not relevant to the issues which I have to determine.

6 It also appears that in 1998 the brothers identified a further potential resort in France and for that purpose arranged to purchase Le Chateau de Francport ("the Chateau"). I do not propose expressing any view as to how that Chateau was purchased, save that it appears to have been purchased in the name of a company incorporated and registered in Ireland called Ruislip International Ltd. ("Ruislip"). That company appears to have been incorporated as a shelf company and then acquired by the brothers or one or other of them or by trusts associated by each or either of them in 1998.

7 Prior to the acquisition of the Chateau it is alleged by John Popely that an agreement had been reached between the brothers that the assets within both the Hever resort and Long Beach resort were to be held between the brothers on the basis of a one-third to two-thirds split of beneficial ownership between John Popely and Ronald Popely respectively. It is also alleged that it was agreed that the present value of those assets be realised and be held offshore by Ronald Popely and John Popely. It is further alleged that all future realisations of or accretions to those assets were similarly to be made on the basis of a one-third to two-thirds split.

8 Disagreement between the brothers appears to have commenced in 1999. Attempted resolution appears to have got as far as draft heads of agreement but ultimately there was no agreement. In 2000 there was a purported transfer from Ruislip to a French company, S.C.I. Le Chateau de Francport ("S.C.I."), for a price of FF5.3m. This is alleged to be a company directly controlled by Ronald Popely. It is further alleged that pursuant to further agreements made by Ronald Popely that S.C.I. transferred the Chateau to R.M.I. for a sum in French francs which represents approximately Stg.£3,205,000. Completion of that sale has not taken place and proceedings have been commenced in France by John Popely and by Ruislip (effectively organised by John Popely pursuant to transactions which are the subject matter of these proceedings) seeking to set aside the transfer of the property from Ruislip to S.C.I. Ruislip had been permitted to be struck off the register in Ireland for failure to make returns and John Popely also arranged for the restoration of Ruislip to the register. The French proceedings are ongoing.

9 John Popely commenced proceedings against Ronald Popely in England on the 13th August, 2001. A second set of English proceedings were commenced by him on the 14th March, 2003. Those proceedings appear to have been consolidated. Ronald Popely challenged the jurisdiction of the English courts (the nature of the challenge is in dispute). However, such challenges were dismissed on the 11th November, 2003, and costs awarded to John Popely on those applications. I will be referring to the nature of the English proceedings in greater detail below.

Irish proceedings

10 These proceedings were issued by Ronald Popely by plenary summons on the 2nd July, 2004. The notice of the summons was served on John Popely on the 6th July, 2004. An unconditional appearance was entered on behalf of John Popely on the 6th October, 2004. A statement of claim dated the 6th July, 2004, was served on John Popely. Notice of motion for judgment in default of defence was issued on the 2nd December, 2004, and by order of the High Court (Clarke J.) judgment was given against John Popely on the 20th December, 2004. On the 18th January, 2005, a motion was issued on behalf of John Popely seeking to set aside the order and judgment of Clarke J. Affidavits were filed on both sides and this was adjourned from time to time. On the 25th April, 2005, the High Court (Gilligan J.) set aside the order of Clarke J. and gave liberty to John Popely to deliver a defence. The defence was delivered on behalf of John Popely. On the 17th May, 2005, two motions were issued on behalf of Ronald Popely, one seeking injunctive relief and the other seeking liberty to join Ruislip as a co-defendant. On the 23rd June, 2005, notice of change of solicitor was served on behalf of John Popely. In the replying affidavits to the May motions of Ronald Popely reference was made to the intention of John Popely to bring this application. Those motions have not yet been heard or determined pending the determination of this application.

11 In relation to the other defendants, the position appears to be as follows. The second and third named defendants are persons resident in the Channel Islands and were the persons to whom the issued shares in Ruislip were transferred on its acquisition for the purpose of purchasing the Castle and were also appointed directors. Leave has been granted to serve them with a notice of the summons. The fourth and fifth named defendants are persons whom it is alleged were appointed directors of Ruislip in July, 2001. A defence has been delivered on behalf of the fourth named defendant. Judgment has been obtained (in default) by order of the High Court (Macken J.) on the 31st January, 2005, against the fifth named defendant. The sixth named defendant is a person who is alleged to have been appointed a director and the secretary of Ruislip. He was subject, with...