Walsh v Walsh

• Jurisdiction: Ireland
• Judge: Mr. Justice Richard Humphreys
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] IEHC 177
• Court: High Court
• Docket Number: [2013 No. 13066P]
• Date: 13 February 2017

[2017] IEHC 177

THE HIGH COURT

Humphreys J.

[2013 No. 13066P]

BETWEEN

DAVID WALSH

PLAINTIFF

AND

MARY WALSH

DEFENDANT

(No. 2)

Practice & Procedures – Grant of post-judgment injunction – Requirement of undertaking Amount granted in injunction being subject to expenditure on living expenses

Facts: Following the delivery of substantive judgment in favour of the plaintiff together with time-bound post - judgment injunction, the plaintiff now sought an injunction for restraining the defendant from disposing any of the assets and other ancillary reliefs.

Mr. Justice Richard Humphreys granted the injunction sought by the plaintiff, thereby directing the defendant not to reduce her assets below the specified amount. The Court also granted certain other ancillary reliefs asked for in relation to disclosure and discovery. The Court observed that given the conduct and demeanour of the defendant and false evidence, it was possible that the defendant could dissipate her assets. The Court held that a successful plaintiff had the right to a guarantee of access to funds, which would be able to satisfy the costs of obtaining and enforcing the judgment. The Court held that the defendant was not precluded to spend the required money on her living expenses from her old-age pension.

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 13th day of February, 2017

1 In Walsh v. Walsh (No. 1) (Unreported, ex tempore, High Court, 2nd February, 2017) I gave judgment in favour of the plaintiff in the substantive action in this matter, together with a stay on that decision conditional on the lodgement of €929,965.66 in court, and granted a time-limited post-judgment injunction restraining the defendant from reducing her assets below €929,965.66 pending the issue of a notice of motion in that regard. Before the court now is the plaintiff's Notice of Motion dated 6th February, 2017, seeking the following principal reliefs:

(i). An injunction restraining the defendant either by herself, her servants or agents or any person acting on her behalf, or any person having knowledge of the making of this order or otherwise, from removing from the State or in any way disposing of, reducing, transferring, charging, diminishing the value thereof or otherwise dealing with all or any of her assets which are in the State save and insofar as the value of the said assets shall exceed the sum of €929,965.66 pending enforcement and/or execution of the judgment in the proceedings herein.

(ii). An order directing the defendant to disclose to the plaintiff in writing within such period as this Honourable Court shall deem meet all of her assets, and whether held in her own name or by nominees or otherwise and whether held solely or jointly, and detailing the value, location and specific descriptions of all such assets and without prejudice to the generality of the foregoing, that the defendant shall identify all bank accounts or accounts with financial institutions, and whether held in own name or by nominees or otherwise and whether held solely or jointly.

(iii). An order directing the defendant to disclose to the plaintiff in writing forthwith all financial transactions effected with respect to the monies she received from the lotto win on or about the 27th day of January 2011, together with an order for discovery of all financial records, bank statements, instructions, and other documentation and correspondence in connection with the transactions aforesaid since the 27th January 2011.

(iv). Further or other order, including if necessary an order for discovery in aid of execution and directions as to service of the order, as to this Honourable Court shall deem meet.

2 I would like to express my gratitude to Mr. Kenneth Bredin B.L. for the plaintiff, and Mr. Darren Lehane B.L. for the defendant, for their assistance with the issues arising on the motion.

Is an undertaking as to damages required in a post-judgment injunction?

3 The first issue is whether an undertaking as to damages is required in this case. In that regard I accept that the law is as stated in Steven Gee, Commercial Injunctions, 5th Ed. (London, Sweet and Maxwell, 2004), at p. 322, as follows:

'If a claimant succeeds at trial on a claim which results in the granting of a final injunction, no cross-undertaking in damages is required. This is because the claimant has succeeded and the final injunction is relief to which he has been adjudged entitled...

If Mareva relief [i.e., under Mareva Compania Naviera SA v. International Bulk Carriers SA [1975] 2 Lloyd's Law Rep. 509] is sought post-judgment, the purpose is to preserve assets so that the judgment can be satisfied. If such an injunction is sought ex parte, or whilst there is the possibility that it may be said that the injunction was wrongly granted, the cross-undertaking must be given. If the relief is granted inter partes, after the judgment debtor has had an opportunity to dispute the granting of the injunction if he wishes, then if there is no prospect of an issue about the injunction being 'wrongly granted' or improperly used, it may be appropriate to dispense with the cross undertaking in favour of the judgment debtor. This is because the judgement debtor has brought about the position by defaulting on the judgment.'

4 The situation is that in the week-and-a-half since the substantive order, the defendant hasn't paid anything to the plaintiff or lodged anything in court; and it seems to me based on what is said by Gee that an undertaking in damages is not required. However, the plaintiff was prepared to offer one if the court required it, so in fact it doesn't make a huge amount of difference to the manner in which I am going to deal with this motion, but having regard to the position as I have just outlined it I don't in fact require it.

What needs to be established for the grant of an injunction post-judgment?

5 Secondly, an issue arises as to the basis of the jurisdiction to grant an injunction in a case such as this. It seems to me that the situation arising here has to be viewed as a distinct situation from a normal Mareva injunction. This is a claim for an injunction post-judgment and in particular a proprietary claim and it seems to me, therefore, that the plaintiff does not have to establish a risk of dissipation as far as the amount of the award is concerned.

6 As far as the amount of costs are concerned I will assume without so deciding that the granting of an injunction at this stage does require proof of either risk of dissipation or an intention to dissipate. On that issue I have no doubt that there is both a risk of dissipation and an intention to dissipate on the part of the defendant, and I have regard to the factors to which I referred when giving judgment and when giving a ruling on the immediate post-judgment injunction; in particular, the following:

(a). that the defendant completed a Revenue affidavit which she knew to be false;

(b). that she did so for the purpose of concealing assets from persons entitled to have access to that information, including the plaintiff;

(c). that her evidence in the witness box was inaccurate and evasive;

(d). that I held that she was a person of considerable calculation and design, particularly having regard to her lengthy, detailed and elaborate efforts to secure all of the assets of her late husband through survivorship whereby it was intended by her that he would not leave any estate;

(e). that this conclusion as to her calculation and design can only be reinforced by what's happened since, which I will come back to;

(f). that the money has never been fully accounted for;

(g). that replies to particulars were not fully complete in terms of disclosure as to what payments had been made;

(h). that her latest affidavit only purports to be an overview or summary of her asset position;

(i). that even with this latest affidavit, what has happened to the rest of the money is still a mystery; the lotto win was €3,389,790.66; the present assets of the plaintiff are, according to her, €673,465.89, so that leaves €2,716,324.77 unaccounted for;

(j). that, what is more striking even than that figure, is the fact that her liquid assets in bank accounts are minimal, amounting to only €6,991.61 - essentially, the money has been cleaned out apart from fixed assets that are difficult to dispose of.

7 I am therefore hugely apprehensive that there will be inadequate assets left to satisfy the judgment and costs. Certainly the assets that are...