Re S.D. (a bankrupt)
| Jurisdiction | Ireland |
| Judge | Ms. Justice Pilkington |
| Judgment Date | 01 May 2019 |
| Neutral Citation | [2019] IEHC 282 |
| Docket Number | [NO. 2478] |
| Court | High Court |
| Date | 01 May 2019 |
[2019] IEHC 282
THE HIGH COURT
BANKRUPTCY
Pilkington J.
[NO. 2478]
IN THE MATTER OF S.D.
BANKRUPT - 2478
Bankruptcy – Estate – Documentation – Applicant seeking an order granting leave for the use of documentation insofar as it relates to the bankrupt’s estate – Whether this was an appropriate case for invoking s. 135 of the Bankruptcy Act 1998
Facts: The applicant, the Official Assignee in bankruptcy, by notice of motion dated 10 March 2019, sought the following reliefs: (i) an order granting leave for the use of documentation from proceedings entitled J.D. v S.D. [1997] 58 M, insofar as it relates to the bankrupt’s estate, in proceedings entitled Richard Coan v S.D. et al 3: 15-cv– 0050 – (JAM)/Ad Proc 15 5019; (name redacted); (ii) if necessary directions in relation to the use of the said documentation; (iii) an order pursuant to s. 134 of the Bankruptcy Act 1988 that the within application be heard in camera; and (iv) further or other order and costs. The High Court (Pilkington J) noted the reference to the documentation as originating within family law proceedings, which also involved a notice party who was not before the court. Accordingly, an order was made pursuant to s. 134 of the 1988 Act that the application shall be in private. The applicant argued that the orders sought by it within the motion was simply a refinement of the existing orders and the comity between the courts whereby the consolidated U.S. proceedings proceeded to trial and simply sought confirmation that it may continue to use the documentation as it had heretofore. It also followed it was argued from the orders of Abbott J and McGovern J in Ireland’s jurisdiction and in the U.S. Courts of Judges Schiff and Meyer. The application was sought by the applicant at the request of the U.S. Trustee in Bankruptcy.
Held by Pilkington J that this was an appropriate case for invoking s. 135 of the Bankruptcy Act 1998 in the events that had happened. It had been suggested by the applicant that perhaps no order was necessary but in Pilkington J’s view she should do so following the order of McGovern J in November 2014.
Pilkington J held that, pursuant to s. 135, she would review and vary that order to the following effect: the order of McGovern J dated 19th November 2014 ordered “That the Official Assignee in bankruptcy do have liberty to furnish documentation in proceedings entitled J.D. v. S.D. [1997] 58 M and in proceedings entitled S.D. v. J.D. [2001/168M] to US trustee Richard Coan in accordance with the order of the US Bankruptcy Court (Schiff J) dated the 15th of July 2014.” In Pilkington J’s view consequent upon that order, invoking s. 135, the court would order that in respect of the documentation furnished to the U.S. Trustee in Bankruptcy pursuant to the order of McGovern J on 19 November 2014 that the U.S. Trustee has leave for the use of documentation from proceedings entitled J.D. v S.D. [1997] 58 M, insofar as it relates to the bankrupt’s estate, in proceedings entitled Richard Coan v. SD et al 3: 15-cv– 0050 – (JAM)/Ad Proc 15 5019 in accordance with the order of the U.S. Court (Judge Meyer) dated the 15th February 2019.
Order granted.
By notice of motion dated 10 March 2019 the Official Assignee in bankruptcy (‘the applicant’) seeks the following reliefs: -
(i) An order granting leave for the use of documentation from proceedings entitled J.D. v S.D. [1997] 58 M, insofar as it relates to the bankrupt's estate, in proceedings entitled Richard Coan v. S.D. et al 3: 15-cv– 0050 – (JAM)/Ad Proc 15 5019; (name redacted)
(ii) If necessary directions in relation to the use of the said documentation;
(iii) An order pursuant to s. 134 of the Bankruptcy Act 1988 that the within application be heard in camera; and
(iv) Further or other order and costs.
Section 134 of the Bankruptcy Act 1988 (“the 1988 Act”) provides that: -
‘The Court may direct that the whole or any part of any sitting of the Court or proceeding in any matter under this Act shall be in private.’
Two notice parties to the motion, namely S.D. and G.K, appeared and at the outset sought that the application be heard in camera. This was also one of the reliefs sought by the applicant within its motion. I note the reference to the documentation as originating within family law proceedings, which also involved J.D. who was not before this court. Accordingly, an order was made pursuant to s. 134 of the 1988 Act that this application shall be in private.
With regard to the notice party J.C. (J.D.) by letter dated 20 March 2019 her solicitors wrote stating that she had no objection to the reliefs sought within the motion but noted that their client ‘…is however anxious to maintain confidentiality around the documentation and consents to the use of the documentation for the purposes of the trial in the United States in the proceedings referred to at paragraph 1 of the motion on the understanding that the said documentation will not come into the public domain.’
On 8 April 2019 this application was allocated a hearing on the final two days of the Hilary Term. I understand that the trial referred to within this application (and in respect of which the documentation is sought) begins with jury selection on 2 May 2019. That date had been fixed for some time. In advance of this application affidavits were filed by the applicant, on behalf of the U.S. Trustee in Bankruptcy and the notice parties S.D. and G.K.. Additional affidavits were filed after this application commenced (with leave of the Court).
S.D. filed for bankruptcy under Chapter VII of the United States Bankruptcy Code on 29 March 2013. He was adjudicated a bankrupt in this jurisdiction by Dunne J. on 29 July 2013 and an application to show cause on foot of that adjudication was rejected by the High and Supreme Courts [2015] IESC 42. He remains a bankrupt.
Whilst this application is a discreet one, there has been significant litigation attendant upon the bankruptcy of S.D. and other related matters.
In general terms, the applicant had secured previous orders (in particular of McGovern J. on 19 November 2014) to furnish certain documentation in respect of the bankrupt's estate to the U.S. Trustee in Bankruptcy, Mr Richard Coan. As the documentation was disclosed within family law proceedings J.D. v. S.D. [1997] 58 M [“the family law proceedings”] the initial order for the lifting of the in camera rule within those proceedings was made by Abbott J. on 14 February 2014.
In order to deal with the present application, it is necessary to consider its background.
The initial application seeking to lift the in camera rule within the family law proceedings was brought by NALM an entity within NAMA (on its own behalf and on behalf of the U.S. Trustee in Bankruptcy), where reliefs were sought for the disclosure of certain documents within those proceedings.
Pursuant to that application Abbott J. delivered judgment on 6 December 2013 and an order consequent upon that judgment and certain other matters issued on 14 February 2014.
The order of 14 February 2014 recites on its face;
(a) that J.D. and S.D. were heard in respect of that application, there was no attendance by or on behalf of G.K. as the notice party to those proceedings.
(b) that when the matter came before the court on 31 January 2014, a draft order and protocol had been prepared and orders made with regard to the manner in which any documentation was to be dealt with (and various other matters set out within the schedules to that order).
(c) S.D. was granted a stay for a period of 21 days in the event of an appeal. Counsel for S.D. within this application was unable to confirm that any appeal took place and I am informed that there is no record of it.
Accordingly, I note in respect of the application before Abbott J. that G.K. was on notice of the proceedings but did not advance submissions and S.D. made submissions to the court but did not appeal the order of Abbott J.
It is to be noted that the order and attached schedules of Abbott J. in February 2014 directed that protocols be put in place with regard to the documentation and the manner of its disclosure: -
(a) The first schedule to that order sets out the materials to be disclosed and the second and third schedules, under the sub-heading “Agreed Protocol” set out a suggested protocol in relation to the redaction process which is detailed and comprehensive.
(b) With regard to the disclosure by NALM/NAMA to the U.S. Trustee, the order directs that this can only be done within the following constraints: (a) that it be used for investigative purposes within the U.S. bankruptcy only; (b) that it will not be disclosed to any third party, other that the legal advisers of the Trustee; and (c) that in the event that the Trustee wishes to examine S.D. in relation to the material disclosed, such examination will take place in private and the transcript of the examination will be sealed.
Thereafter;
(a) Abbott J., by order dated 7 March 2014, records that pursuant to a motion by the applicant herein it was ordered that the Official Assignee in bankruptcy was joined as a respondent to the family law proceedings (S.D. having been adjudicated a bankrupt).
(b) On 2 May 2014, Abbott J. makes, inter alia, orders regarding the furnishing of certain documentation pursuant to his order of 14 February 2014 to the applicant.
(c) On 16 May 2014 Abbott J. orders that the remaining motions be adjourned for hearing before McGovern J. on a de novo basis (save for the order of 7 May 2014 joining the Official Assignee as a party to the family law proceedings).
On 15 July 2014 Judge Schiff of the United States Bankruptcy Court, District of Connecticut, Bridgeport Division in case no. 13 – 50484 (AHUWS) in Re: S.D. a Debtor (name redacted)...
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