The Minister for Communications, Energy and Natural Resources and Michael O'Connell v Michael Wymes

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: O'Donnell J.,Dunne J.,Charleton J.,O'Malley J.,Baker J.
• Judgment Date: 14 September 2021
• Neutral Citation: [2021] IESC 63
• Docket Number: S:AP:IE:2020:000125 Bankruptcy No. 4549

In the Matter of Michael Wymes, A Bankrupt

Between/

The Minister for Communications, Energy and Natural Resources and Michael O'Connell

Petitioners/Respondents

and

Michael Wymes

Respondent/Appellant

[2021] IESC 63

O'Donnell J.

Dunne J.

Charleton J.

O'Malley J.

Baker J.

S:AP:IE:2020:000125

A:AP:IE:2019:000247

Bankruptcy No. 4549

THE SUPREME COURT

Costs – Bankruptcy – Public interest litigation – Respondents seeking costs – Whether costs should follow the event

Facts: The appellant, Mr Wymes, appealed to the Supreme Court against the order of Pilkington J. The question for consideration in the appeal was whether a debtor can in the light of the provisions of ss. 7(1)(g),8(5) and 11(1)(c) of the Bankruptcy Act 1988 commit an act of bankruptcy when he or she has challenged the summons relied on by the creditor. The decision of the Court was that an act of bankruptcy can occur notwithstanding that the debtor has made a statutory challenge to the summons, and the Court rejected the argument of the appellant that there was an ambiguity, inconsistency or confusion in the legislation: [2021] IESC 40. The practical effect of the decision on the appeal was that the bankruptcy adjudication was not annulled. The respondents, the Minister for Communications, Energy and Natural Resources and Mr O’Connell, sought the costs of the appeal and argued that they had been “entirely successful” in the appeal within the meaning of s. 169(1) of the Legal Services Regulation Act 2015 and that no circumstances existed to displace the presumptive entitlement to costs. The appellant argued that the Court ought to exercise its discretion to depart from the normal rule as the case was one of general public importance which clarified the law relating to the effect of challenge to a bankruptcy summons.

Held by the Court that the applicant by the appeal sought to overturn his own adjudication, and therefore he could not argue that he was not seeking a private personal advantage; accordingly, the appeal did not meet the test identified in cases such as Dunne v the Minister for the Environment (No. 2) [2008] 2 IR 775, and was not therefore one which meets the test of public interest litigation. The Court did not consider that any basis existed to depart from the normal rule that costs follow the event.

The Court held that the respondents were entitled to the costs of the appeal.

Costs awarded to the respondents.

COSTS...