Re: McNamara & The Personal Insolvency Acts 2012- 2015, [2018] IEHC 730 (2018)

Docket Number:2016 39






JUDGMENT of Mr. Justice Denis McDonald delivered on 17 December, 2018.

The application before the court

  1. This judgment deals solely with the relief sought in the notice of motion dated 1st June, 2018 brought by James Green, Personal Insolvency Practitioner (“the Practitioner”) on behalf of the above named debtor in which the Practitioner seeks to amend the wording of the notice of motion previously filed in these proceedings on 2 February, 2017, which had sought an order pursuant to s. 115A(9) of the Personal Insolvency Act 2012 (“the 2012 Act”) as amended by the Personal Insolvency (Amendment) Act 2015 (“the 2015 Act”). Under s. 115A(9) of the 2012 Act (as amended) an order can be sought from the court (subject to compliance with a significant number of conditions) confirming the coming into force of a proposed Personal Insolvency Arrangement (“PIA”) notwithstanding that the proposals have been rejected by the creditors of the debtor.

  2. The notice of motion seeking relief under s. 115A(9) (“the originating notice of motion”) indicated, in its opening words that the application would be moved by: “solicitors/counsel on behalf of the Debtor” (emphasis added). Although the notice of motion was signed by the Practitioner, the opening words clearly suggested that the application was made on behalf of the debtor himself.

  3. As a consequence of two decisions of Baker J. (addressed in more detail below) both of which were delivered after the originating notice of motion had been issued, it was clarified that, under the 2012 Acts (as amended), the only party who can make an application under s. 115A is a Personal Insolvency Practitioner. In those circumstances, the Practitioner here has brought the present application seeking to amend the originating notice of motion so as to make clear, in its opening words, that the application is brought by the Practitioner on behalf of the debtor. That application is strenuously opposed by the Objecting Creditor, Tanager DAC (“Tanager”) albeit that no such objection was identified at any point in its notice of objection dated 10th February, 2017 or in the affidavit of Angela O’Brien sworn on its behalf on 11th May, 2017.

  4. Before dealing with the issues which arise on the present motion, it is necessary, in the first instance, to consider the two judgments of Baker J. which were delivered subsequent to the filing and service of the originating notice of motion.

    The judgments of Baker J.

  5. On 5th October, 2017, Baker J. gave judgment in Darren Reilly [2017] IEHC 558 in which she carefully considered the provisions of s. 115A in the context of an appeal from the Circuit Court. The appeal in that case had been brought in the name of the debtor rather than in the name of the practitioner. In para. 26 of her judgment Baker J. identified the question which arose for consideration in that case namely – whether a debtor (as opposed to a practitioner) has an independent and free-standing right to appeal a refusal by the Circuit Court under s. 115A to approve the coming into effect of a PIA. Baker J. answered that question in para. 67 of her judgment in the following terms:-

    “An application under s. 115A may be instituted only by a PIP, and a debtor has no statutory standing to initiate the application without the active and substantive engagement of the PIP with the process.”

  6. Earlier, in para. 56 of her judgment, Baker J. had summarised the role of the practitioner on an application under s. 115A in the following way:-

    “The fact that a PIP performs a role of responsibility and substance, and is required for the purposes of bringing an application under s. 115A to exercise professional judgement, provides to a large extent the backdrop to the procedural requirements... In bringing a professionally qualified person into the heart of the process, the Oireachtas sought to achieve the orderly processing and formulation of a PIA and of an application by way of review to a relevant court. The process is envisaged as being for the benefit of the debtor, but is not one driven by the debtor, nor can he or she engage the process without an intermediary who cannot be said to act merely on instructions, but is required at all times to seek to achieve the resolution of debt, to do so in the exercise of professional judgement, and to engage his or her knowledge or experience in financial matters to fashion a remedy which is satisfactory to all parties concerned. The PIP is an intermediary therefore in a true sense, and neither the creditor nor the debtor can be said to be his or her client.”

  7. Subsequently, in Niamh Meeley [2018] IEHC 38 Baker J. had to consider a similar question in the context of an originating application in the High Court for relief under s. 115A (i.e. similar to the originating notice of motion in this case). In para. 11 of her judgment in Niamh Meeley, Baker J. summarised her previous decision in Darren Reilly as:-

    “…authority for a narrow proposition, that the involvement of the PIP in the process is mandatory, and that a debtor does not have an independent or free standing right to appeal a decision of the Circuit Court under s. 115A.”

  8. In para. 135 of her judgment in Niamh Meeley, Baker J. expressed the view (consistent with her decision Darren Reilly), that an originating motion must sufficiently identify:-

    “…that the application is that of the PIP, and as it is self evident that the PIP does so on behalf of the debtor, that phrase is unnecessary, albeit to use it could not be said to be incorrect. A motion is not to be dismissed on account of superfluous or unnecessary words.”

  9. In Niamh Meeley, the notice of motion did not identify that the practitioner was the applicant. In para. 142 of her judgment Baker J. categorised this as “an error in that it fails to identify that the PIP makes the application.”

  10. In the concluding paragraph of her judgment (para. 154), Baker J. noted that it had previously been agreed that any question of substitution or amendment of the notice of motion would await her ruling. She added:-

    “I am not satisfied that the procedural incorrectness is such as justifies the striking out of the proceedings without further argument or application.”

  11. The parties before me were agreed that subsequent to the decisions in Darren Reilly and Niamh Meeley the applications in both of those cases were subsequently amended without opposition from the objecting creditors. Thereafter, the court, in each case, proceeded to deal with the s. 115A applications on their respective merits. It was therefore unnecessary for the court in those cases, to deal with whether it was legally possible to amend the originating notice of motion in order to comply with the judgments in Darren Reilly and Niamh Meeley.

    The arguments of the parties in this case

  12. There was a fundamental disagreement between the parties as to the governing rule or other jurisdiction for an application of this kind. It was argued by counsel for the Practitioner, Mr. Declan McGrath SC, that an application of this kind falls within (a) O. 28, r. 12 (RSC); (b) s. 115A(14) of the 2012 Act (as amended); (c) O.28, r.1; or alternatively under the inherent jurisdiction of the court.

  13. It should be noted, at this point, that in the notice of motion seeking liberty to make the proposed amendment, a number of bases had been relied upon including O. 63, r. 1(15) and O. 124. In the course of the hearing, no argument was ultimately made in reliance on O. 63, r. 1(15). Some reliance was sought to be placed on O. 124 but, in my view, O. 124 is clearly not capable of being relied upon here. As counsel for Tanager, Mr. Bernard Dunleavy SC, made clear, O. 124 is concerned with noncompliance with the Rules. It is not relevant to a failure to comply with a statutory requirement. It is relevant to the submission made on behalf of Tanager that the provisions of O. 75A were not complied with. However, the issue here is the non-compliance with the provision of s. 115A. The complaint by Tanager that there has been a failure to comply with O. 75A is, in my view, a side-issue which does not require consideration here. Any failure to comply with the Rules can be readily overcome.

  14. In contrast to the position taken by the Practitioner, the case made on behalf of Tanager was that the present application is, in substance, an application to substitute a new party – namely an application to substitute the Practitioner for the debtor. In the written submissions delivered on behalf of Tanager, it was argued that the only application which might be capable of curing the error would be an order substituting the Practitioner as applicant in lieu of the debtor.

  15. In the submissions made on behalf of Tanager, there was a focus on two rules in particular, namely:

    (a) O. 15, r. 2. Under that rule, where an action has been commenced in the name of the wrong person as “plaintiff” the court may “if satisfied that it has been so commenced through a bona fide mistake, and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted…as plaintiff upon such terms as may be just”;

    (b) O. 15, r. 13. Under that rule, the court is given a power at any stage of the proceedings to order the names of any parties improperly joined to be struck out and to order that the names of any parties who ought to have been joined should be added.

  16. In reliance on the decision of Kearns P. in Sandy Lane Hotel Ltd. v. Times Newspapers Ltd. [2014] 3 I.R. 369, Tanager submitted that, in circumstances where there was no evidence that a bona fide mistake had been made in naming the debtor as applicant in the originating notice of motion, the only...

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