Protégé International Group (Cyprus) Ltd and anor v Irish Distillers Ltd

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,O'Malley J.
• Judgment Date: 17 September 2020
• Neutral Citation: [2020] IESCDET 106
• Date: 17 September 2020
• Court: Supreme Court
• Docket Number: Supreme Court record no: S:AP:IE:2020:000076 High Court record no: 2018 No. 6087 P

BETWEEN

PROTÉGÉ INTERNATIONAL GROUP (CYPRUS) LIMITED

AND

AVALON INTERNATIONAL MANAGEMENT INC

PLAINTIFFS

AND

IRISH DISTILLERS LIMITED

DEFENDANT

[2020] IESCDET 106

Clarke C.J.

MacMenamin J.

O'Malley J.

Supreme Court record no: S:AP:IE:2020:000076

Court of Appeal record no: A:AP:IE:2019:000323

High Court record no: 2018 No. 6087 P

THE SUPREME COURT

DETERMINATION

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Plaintiffs / Applicants to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 2 nd April, 2020

DATE OF ORDER: 16 th June, 2020

DATE OF PERFECTION OF ORDER: 29 th June, 2020

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 17 th July, 2020 AND WAS IN TIME.

General Considerations

1 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the Thirty-third Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions[2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O'Donnell J. in Quinn Insurance Ltd. v PricewaterhouseCoopers[2017] IESC 73, [2017] 3 I.R. 812. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions[2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

2 Furthermore, the application for leave filed and the respondent's notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

3 In that context, it should be noted that the respondent does oppose the grant of leave.

Discussion

4 As appears from the notices filed and from the judgments of the High Court and the Court of Appeal in these proceedings, the issue in respect of which leave to appeal to this Court is now sought relates to an order requiring the plaintiff/applicant (“Protégé”) to provide security for costs in the sum of €1M. The underlying proceedings allege breach of competition law. Protégé does not dispute that it would be unable to pay the costs of the defendants/respondents (“Irish Distillers”) should Irish Distillers successfully defend the proceedings and be awarded costs. In those circumstances there was an understandable concentration on the question of whether Protégé could establish that its impecuniosity, leading to its inability to be able to pay costs should they be awarded, was arguably due to the wrongdoing of Irish Distillers. The Court of Appeal concluded (see- Protégé International Group (Cyprus) Ltd. v....