Thema International Fund Plc and Others v Thema Asset Management Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Clarke |
| Judgment Date | 04 August 2011 |
| Neutral Citation | [2011] IEHC 344 |
| Court | High Court |
| Date | 04 August 2011 |
[2011] IEHC 344
THE HIGH COURT
BETWEEN
AND
AND
KALIX FUND LTD v HSBC INSTITUTIONAL TRUST SERVICES (IRL) LTD 2009 2 IR 581 2009/29/7216 2009 IEHC 457
EEC REG 44/2001
EEC REG 864/2007
FLIGHTLEASE (IRL) LTD, IN RE 2008 1 ILRM 543 2006/24/5007 2006 IEHC 193
FOSS v HARBOTTLE 67 ER 189 1843 2 HARE 461
PRACTICE AND PROCEDURE
Case management
Related proceedings - Settlement in other jurisdiction - Impact on proceedings - Timing of hearing as to impact - Case management - Correspondence with registrar - Registrar copied on argumentative correspondence between parties - Whether appropriate - Directions given (2008/10983P - Clarke J - 4/8/2011) [2011] IEHC 344
Thema International Fund plc v HSBC Institutional Trust Services Ltd
Facts: The Court had been asked to rule on matters which might arise in the proceedings. The proceedings concerned the Madoff litigation which was being case managed by the Court (Kalix Fund v. HSBC International Services (Ireland) Limited [2009] IEHC 457). The issue arose concerning the interaction of the proceedings with a case taken in the US which would compromise a class action where a settlement was proposed.
Held by Clarke J. that the parties had to set out in a document the effect the settlement would have on the Irish proceedings and if they declined to file such a document, those issues would be left over to trial. As a postscript to the decision finalised by the Court, subsequently, a US Court had asked the parties to sought information from the parties whether they were willing to revise their settlement. Both parties were similarly sought a determination of the recognition and enforceability questions before the Court. The Court saw no reason to depart from its earlier determination and the Court would accommodate the parties in early October.
Reporter: E.F.
2 1.1 Curiously, in this judgment, I am not asked to rule on any questions of law or fact but rather to decide when it would be appropriate to rule on issues which may arise in these proceedings.
3 1.2 These proceedings are part of the general Madoff litigation which is being case managed together for the reasons set out in Kalix Fund v. HSBC International Services (Ireland) Limited [2009] IEHC 457. In this judgment the parties are described and terms are used in the same manner as in Kalix. To bring matters up to date it should be recorded that the case management of the proceedings linked as a result of the judgment in Kalix. has proceeded at a pace so that it is now anticipated that the discovery process (which had proved problematic and, not surprisingly, lengthy) is expected to be completed in September. Pre-trial directions concerning the exchange of witness statements, the furnishing of written submissions and decisions concerning the form of trial (particularly whether and, if so, to what extent it should be modular) are expected to be made soon thereafter.
4 1.3 Into that general matrix a possible issue concerning the interaction with these proceedings of a case taken in the United States Federal Courts (Southern District of New York) has arisen. In accordance with US federal law, those proceedings ( Davis v Benhasset et al 09 Civ. 2558 (RMB)) comprise a class action in respect of which a settlement is proposed. It will be necessary to refer briefly to the process by which the settlement of a class action may be approved in due course. There is at least a possibility that should a final settlement of those proceedings be approved, some practical consequences might lie for the proceedings with which I am concerned in this jurisdiction. It is in that context that Thema has brought a motion before the court seeking to have the potential consequences for these proceedings of the approval of a settlement in the US class action decided sooner rather than later. Before turning to Thema's application, I wish to record my views on a matter of concern which, while not confined to this case, does arise in the context of these proceedings.
2 2.1 The probability that an application to the Irish courts in these proceedings might be necessary arising out of relevant US proceedings first came to my attention when a letter was written by the solicitors acting on behalf of HTIE to the Court Registrar, which letter was passed on to me. There followed further correspondence between the parties which can, I think, be reasonably characterised as highly argumentative on the issues, which correspondence was also copied to the courts. I eventually requested that that process stop.
3 2.2 It has become a growing practice for solicitors acting for parties in cases before the courts (and, I would venture to suggest, in particular, the Commercial Court) to copy correspondence to the court. Some lay litigants have adopted the same course. It is important that I here distinguish between two different types of such communications.
4 2.3 First, it is, of course, the case that the papers properly before the court for any application pending are frequently required to be lodged in advance so that the judge can have an opportunity to read them in accordance with modern case progression practices. There is nothing at all, therefore, inappropriate (indeed, it is often required) that there be relevant communications associated with ensuring that all of the documentation properly before the court for any particular application has been filed and is available for reading by the judge. Sometimes that involves late correspondence where relevant documentation (such as replying affidavits or submissions) only arrives after the main documentation has been filed. Again, in the ordinary way, there is nothing wrong with such communications. I would only add one rider. Difficulties can arise where there is a known dispute between the parties as to whether such late filed documentation is to be properly admissible (for example, where one party proposes to file documents after a time limit imposed by the court). In those circumstances, care should be exercised that documents which may not ultimately be admitted are not brought to the court's attention until such time as there has been a proper decision as to whether the relevant documentation is to be admitted. There is nothing at all wrong (indeed, it is to be commended) in ensuring that all relevant documents are filed in a timely fashion. Where there is no disagreement as to what the boundaries of the relevant documentation may be, then no problem arises. However, parties should exercise care to ensure that only documents which are properly before the court are included. It should not be assumed that a party has a right to bring documents to the court's attention where there is at least an argument as to whether the document is properly before the court. Simply sending documents to the Court Registrar for the attention of the judge, without reaching agreement with the other side, is, in those circumstances not, in my view, proper practice.
5 2.4 In addition, it is obviously useful for the court to receive early information as to developments which may affect the court's process. The fact that there may be an application for an adjournment, whether on consent or otherwise, or any other information that might be useful for the court in planning its diary, should, of course, be communicated. Against that background, it is not surprising that a much greater degree of correspondence between solicitors acting on behalf of parties and the court has arisen in recent times. Most of that correspondence is connected to the entirely legitimate purposes to which I have referred.
6 2.5 However, there has, in my view, in recent times, grown up alongside that practice a tendency for parties to copy argumentative correspondence, about issues which may be due to come before the court, to the Registrar. It needs to be recalled that justice is, under the Constitution, to be administered in public, save in very limited circumstances. The materials which the court is entitled to take into account are those materials which are properly before the court and thus open to public examination. Where there is, for example, a motion before the court, then any affidavits relevant to that motion, together with exhibits and the like are, of course, properly before the court. However, argumentative correspondence about applications that might be brought or positions that might be adopted or complaints that might be made to the court, are not, in my view, properly brought to the attention of the court, at least in the absence of an agreement by all sides. It is, of course, the case that, in the ordinary way, modern case management frequently involves applications being dealt with in an informal way (that is, without the need to issue a formal motion) when the case comes before the court in the ordinary course of case management. It is obviously useful that any applications that are going to be made in that context are notified in advance by correspondence and, indeed, that the position of the parties on any such applications is explored and narrowed in correspondence before they are actually dealt with in court. In those circumstances, the sending, by agreement between both parties, of a file of correspondence which defines the issues likely to arise in an application to be made in the context of case management, is entirely helpful.
7 2.6 What is not, however, in my view, appropriate, is for one side to simply communicate to the court general...
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