THE SUPREME COURT
[Appeal Nos.: 173 and 174/2010]
Denham C.J.
Dunne J.
Charleton J.
BETWEEN
MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES AND MICHAEL O’CONNELL
RESPONDENTS
v.
RICHARD WOOD AND MICHAEL WYMES
APPELLANTS
Judgment of Ms. Justice Dunne delivered the 9th day of March 2017
This is an appeal by the appellants, (hereinafter referred to as “Mr. Wood and Mr. Wymes”) from the order of the High Court (McGovern J.) refusing to dismiss bankruptcy summons filed on the 15th March, 2010 pursuant to s. 8(6)(b) of the Bankruptcy Act 1988 (the Act of 1988) against Mr. Wood and Mr. Wymes, which order was made on the 6th May, 2010 following a full hearing of the applications of Mr. Wood and Mr. Wymes on the 29th April, 2010.
The applications to dismiss the bankruptcy summons were grounded on two affidavits of Mr. Wymes, two affidavits of Mr. Wood and there were two affidavits on behalf of the Minister for Communications, Energy and Natural Resources and Michael O’Connell (hereinafter referred to together as “the Minister”). At the hearing before the High Court, Mr. Wood was represented by his solicitor and Mr. Wymes represented himself. Further affidavits were filed by the parties and their solicitors in the course of the proceedings.
Mr. Wood and Mr. Wymes in their respective notices of appeal have set out some seventy nine grounds of appeal in respect of the order of the High Court. The application of Mr. Wood and Mr. Wymes to dismiss the bankruptcy summons was the subject of an ex tempore ruling by the learned trial judge on the 29th April, 2010 and thereafter a further ruling was given on the 4th May, 2010 dealing with one matter which had been argued before the learned trial judge but which had not been dealt with by him in the course of his earlier ex tempore judgment.
The law
Section 8(6) of the Bankruptcy Act 1988 provides as follows:
“The Court -
(a) may dismiss the summons with or without costs, and
(b) shall dismiss the summons if satisfied that an issue would arise for trial.”
(My emphasis)
The leading judgment on the interpretation of s. 8(6)(b) of the Act of 1988 is the decision in the case of Minister for Communications v. M.W. [2010] 3 IR 1, a decision of McGovern J. in a previous application brought by Mr. Wood and Mr. Wymes for an order dismissing a previous bankruptcy summons between the same parties. In the court of his judgment McGovern J. stated at page 4 as follows:
“In the matter of a bankruptcy summons by St. Kevin's Company against a Debtor (Ex tempore, Supreme Court, 27th January, 1995) the Supreme Court expressed the view that the correct interpretation of s. 8(6)(b) of the Act of 1988 was that the High Court should not undertake an investigation into the merits of the case once it was satisfied that an issue arose on the summons. In those circumstances, the Supreme Court stated that it was mandatory for the court to dismiss the summons if it was satisfied that an issue arose between the parties and the issue would have to be litigated separately outside the bankruptcy process.”
Sanfey and Houlihan in Bankruptcy Law and Practice in Ireland, 2nd Ed., (Dublin, 2010) at para. 2 - 73 having referred to the judgment of McGovern J. in Minister for Communications v. M.W. noted that the ex tempore judgment in the case of St. Kevin's Company against a Debtor is unavailable but the judgment was the subject of an article in the Commercial Law Practitioner (1995), at page 173, in which the facts and basis of the decision are described. In essence it is clear from the decision of the Supreme Court in that case and from the judgment of McGovern J. following that decision that once an issue arose on the summons it was mandatory for the Court to dismiss the summons if it was satisfied that an issue arose between the parties and the issue would have to be litigated separately outside the bankruptcy process.
A number of observations can be made at this point. It is mandatory on the Court to dismiss the summons having regard to the provisions of s. 8(6)(b) if an issue arises on the summons. There is no choice in this matter. The summons must be dismissed. That begs the question as to what is an issue that could give rise to the dismissal of a bankruptcy summons. In Minister for Communications v. M.W. McGovern J. described the test to be applied in deciding whether an issue would arise for trial as follows: “…this is a real and substantial issue and which is, at least, arguable and which has some prospect of success.” (at para. 24). In two subsequent decisions of the High Court, I accepted that this was the appropriate approach to be taken in considering whether an issue would arise for trial. (See Allied Irish Banks plc v Yates [2012] IEHC 360 at p. 29 and Marketspreads Ltd. v O’Neill and Rice [2014] IEHC 14 at p. 32.)
Thus, in order for an application to dismiss a bankruptcy summons to succeed, the issue raised by an applicant must be a real and substantial issue. It should not be fanciful or unreal. It may be an issue of fact or law. If the issue raised is an issue of fact it must have some credibility. If, for example, the applicant for an order pursuant to s. 8(6)(b) of the Act of 1988 denies that he owes the money sought in a bankruptcy summons but has already suffered judgment in that amount, then the conclusion that he or she did not owe the money would simply not be credible. If the issue raised was an issue of law which was well established and as to which there was no doubt and could not avail the applicant, raising such an issue could not give rise to the dismissal of the bankruptcy summons.
There is some assistance to a Court in considering whether the issue raised is a real and substantial issue to be found by comparing an application to dismiss a bankruptcy summons and the test as to what amounts to an arguable defence on foot of an application for summary judgment. In that context, Hardiman J. in Aer Rianta Cpt. V. Ryanair Limited [2001] 4 IR 607 asked (p. 623):
“Is there either no issue to be tried or only issues which are simple and easily determined? Do the defendant's affidavits fail to disclose even an arguable defence?”
The principles applicable to applications for summary judgment were drawn together in the case of Harrisrange Limited v. Duncan [2003] 4 IR 1 at pages 7 to 8, a judgment of the High Court (McKechnie J.). Of course, the analogy between an application for summary judgment and an application to dismiss a bankruptcy summons is not perfect but there are some similarities. Thus, the threshold for leave to defend against an application for summary judgment and on an application to dismiss a bankruptcy summons is a low threshold. One must consider whether there is a real and substantive issue raised by the applicant. If the issue relied on is one of fact that has to be litigated outside the bankruptcy proceedings then clearly, in accordance with the authorities already referred to, the bankruptcy summons has to be dismissed. If the issue is an issue of law which is clearly established and not open to doubt such that, as McKechnie J. in the course of his judgment in Harrisrange identified, is it clear “that fuller argument and greater thought is evidently not required for a better determination of such issues” then the bankruptcy summons should not be dismissed.
In looking at the situation overall one must of course consider whether what is deposed to on affidavit by the applicant is credible. To paraphrase what was said by McKechnie J. in Harrisrange once again, an application to dismiss a bankruptcy summons should not be granted unless it is very clear that no issue arises. It has been said in relation to applications for leave to defend a summary summons that mere assertion is insufficient to entitle a party to be given liberty to defend. This was described by Clarke J. in McGrath v. O’Driscoll [2007] 1 ILRM 203 where he said as follows (at p. 210):
“So far as factual issues are concerned it is clear, therefore, that a mere assertion of a defence is insufficient but any evidence of fact which would, if true, arguably give rise to a defence will, in the ordinary way, be sufficient to require that leave to defend be given so that that issue of fact can be resolved.”
On an application to dismiss a bankruptcy summons, I would adopt that approach so that a mere assertion that an issue arises would be insufficient to succeed in an application to dismiss a bankruptcy summons but any evidence of fact which would, if true, arguably give rise to an issue that requires to be litigated outside the bankruptcy proceedings would be sufficient to establish that the bankruptcy summons should be dismissed.
Judgment of the High Court
Before considering the application of those principles to the appeal of Mr. Wood and Mr. Wymes, I should refer to the judgment of the High Court in relation to this matter.
McGovern J. in the course of his ex tempore judgment in this matter, delivered on 29th April, 2010, referred to the fact that Mr. Wood adopted the arguments made by Mr. Wymes. He pointed out that Mr. Wymes in his affidavit set out his arguments which ran to some 155 paragraphs and some 29 pages. A further affidavit was sworn by Mr. Wymes on the 29th April, 2010 and the matter proceeded although Mr. Newman on behalf of the Minister only received the further affidavit that day. In the course of his judgment, McGovern J. made reference to his earlier decision in Minister for Communications v. M.W. and to a judgment of the High Court (Dunne J.) of the 19th December, 2008 on a separate issue involving the issue of execution of an earlier judgment in proceedings entitled Bula Limited (In Receivership) & Ors. v. Tara Mines Limited & Ors, the case which gave rise to the judgment and order for costs at issue in these proceedings. The grounds relied on by Mr. Wood and Mr. Wymes in seeking to have the bankruptcy summonses dismissed were summarised as follows:
(1) Delay;
(2) Prejudice;
(3) An issue as to whether or not a judgment mortgage is a form of execution;
(4) Alleged abuse of process;
(5) A contention that the judgment at issue in respect of which the order for costs was made was not entered in the Central Office in the proper manner and that no record of it can be found there.
McGovern J. dealt with the issues as follows. Insofar as the issue of delay was concerned Mr. Govern J. quoted from his judgment in the earlier case of Minister for Communications v. M.W. [2010] 3 IR 1, saying:
“In my judgment given in May of last year, I stated that:
‘. . . it was clear that the delay in execution was due to the repeated attempts by the applicants to frustrate various orders of the courts over many years’.
If one looks at the judgment of Dunne J. a similar view is expressed in relation to many aspects of the dispute arising between the petitioner and the respondents and their attempts to recover, on foot of the judgment of Lynch J., which was made as far back as 24th February, 1997.”
He went on to say that Mr. Wymes had argued that there was unexplained delay between March 2000 and the 31st July, 2003. As that point had not been raised before in the previous application to discharge bankruptcy summonses, McGovern J. rejected that argument. Thus for that reason alone he rejected the argument concerning delay. He went on to add that correspondence between the parties shows that from at least the 10th September, 2004 the petitioner was seeking to recover costs awarded on foot of the court order and subsequent certificate of taxation. Complaint was made by Mr. Wymes as to the ten year period post-judgment; that it was wrong to subject Mr. Wood and Mr. Wymes to ten years of delay and then unfair for an application by way of bankruptcy summons to be made out of the blue. McGovern J. found that the claim for costs was not made “out of the blue”. He concluded by saying that there was no basis for any expectation on the part of the debtors that the Minister was going to forgo the claim for costs. He concluded that all the evidence was to the contrary and therefore rejected the argument based on delay. Insofar as the question of prejudice was concerned he said that he could not see how the debtors had been prejudiced by the events which have occurred having regard to the points which arose on the argument made in respect of delay and consequently rejected that argument also.
McGovern J. then dealt with the point raised in relation to the judgment mortgage and stated that Mr. Wymes had tried to argue this point, namely, that a judgment mortgage is not a form of execution, despite the fact that that issue was dealt with in his earlier judgment. In the course of the earlier judgment McGovern J. had held that registration of a judgment mortgage against property belonging to a debtor was not a process of execution. Where a party registered a judgment mortgage it could then proceed to obtain a well charging order and an order for sale but the mere registration of a judgment mortgage was not, without more, execution. Thus that point having been dealt with, McGovern J. was of the view that that matter should not be dealt with again. McGovern J. noted that Mr. Wymes appeared to accept that that issue could not be revisited and that Mr. Wymes was not therefore pressing the matter. In any event, McGovern J. rejected the argument made in relation to that issue.
McGovern J. then proceeded to deal with the allegation in relation to abuse of process. He described this as an argument related to Cork lands owned by Mr. Wood in respect of which “Mr. Wymes may have had some charge interest or equity”. The arguments in this respect arose from the fact that Mr. O’Hagan, the Chief State Solicitor, or others on his behalf had conducted discussions with a solicitor for Mr. Wood in relation to the possible purchase of Mr. Wood’s lands by Cork City or County Council for public amenity purposes. McGovern J. commented:
“The arguments made to the effect that this in some way is related to the process of bankruptcy being pursued by the petitioners, is something I simply do not understand. I think it is at best wild speculation, and merely because Mr. O’Hagan, or others on his behalf, may have been at one point in some discussions with the applicants or either of them, in regard to these lands does not mean that the use of the Bankruptcy Code to pursue their claim for the costs, which have been taxed and ascertained many years ago is an abuse of process.”
To that extent McGovern J. rejected the argument in respect of abuse of process.
Finally McGovern J. dealt with the issue of delay since the dismissal of the previous bankruptcy summons approximately some twelve or so months previously. He concluded that the delay in that regard was not of any significance. His judgment on the previous bankruptcy summons was delivered on the 12th May of 2009 and the hearing at issue took place on the 29th April, 2010. He was of the view that the petitioner was entitled to consider what to do following the dismissal of the previous bankruptcy summons and whether to proceed again and on what basis it would proceed. In those circumstances he again rejected that argument. He concluded by noting that there was no merit in the application made to dismiss the bankruptcy summonses. When the matter was previously before him in 2009 the only basis upon which an argument was raised was whether or not interest beyond a period of six years could be claimed. At that time McGovern J. said he felt constrained to make an order dismissing the summonses in respect of that issue. As he observed: “That seemed to be the only issue that arose then”. In those circumstances he declined to dismiss the applications.
The Appeal
The basis of the appeal to this Court by Mr. Wood and Mr. Wymes has changed to some extent since the hearing before McGovern J. A point which had not been argued before McGovern J. was raised on behalf of Mr. Wood in relation to the calculation of interest in respect of interest payable on the judgment debt in respect of costs. Revised submissions were furnished by Mr. Wymes. The proceedings were adjourned to allow the State to respond to the issue then raised by Mr. Wood. The point raised on behalf of Mr. Wood concerns the calculation of interest on a judgment debt over a six year period having regard to the fact that within that period there is a leap year. Reference was made in that context to the provisions of s. 26 of the Debtors (Ireland) Act 1840, as amended, which provides as follows:
“Every judgment debt due upon any judgment not confessed or recovered for any penal sum for securing principal and interest shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment, or from the time of the commencement of this Act in cases of judgments then entered up and not carrying interest, until the same shall be satisfied; and such interest may be levied under a writ of execution on such judgment.”
It is contended on behalf of Mr. Wood that the reference to “per annum” is to a year running from the date of entering judgment and not to a calendar year. It was contended that the daily rate applicable should be adjusted to take account of a leap year. Reliance was placed on a decision of the Chancery Division of the United Kingdom, Lomas & Ors. v. Burlington Loan Management Ltd. & Ors. [2015] EWHC 2269 and to a passage from the judgment of David Richards J. at para. 241 et seq. where it was said:
“The important point for present purposes under s. 17 is that the judgment creditor is entitled to interest at the rate of 8% [per annum] for each complete year that the judgment debt is outstanding. No distinction is made for these purposes between an ordinary year and a leap year. I cannot therefore see that the position should be any different when it is sought to apply the annual rate to part of a year. If a creditor with a judgment of £1m is entitled to £80,000 for a complete year, whether or not it is a leap year, he is not, in my judgment, entitled to an extra day’s interest for part of a year which happens to include 29 February. This would be to give the creditor interest at a slightly higher rate than that prescribed by the Act.
242. Accordingly, the administrators are in my judgment, correct to approach the calculation of interest for a year which includes 29 February by reference to a daily rate included on the basis of 366 days. In all cases, the start date for the calculation of interest is 15 September 2008, the commencement of the administration of LBIE. A year therefore starts on 15 September and ends on the following 14 September. Interest for part of any such year which includes 29 February should therefore be calculated on the basis of a year comprising 366 days.”
A similar issue arose in this jurisdiction in the case of Harrahill v. Kennedy [2013] IEHC 539 (Dunne J.) in which it was contended that the Revenue were entitled to claim interest for a period of six years only but had in fact claimed interest for a period of six years and one day. The Revenue took issue with that contention and indicated that they were seeking interest for a six year period only which included a 366 day in one of the years to allow for a leap year within that period. In the course of the judgment in that case, I noted the position of the Revenue as to the calculation of interest as set out in their submissions (at p. 7):
“. . . it was stated therein in respect of the judgment obtained on the 16th July, 2002, that interest of €5,596.10 as claimed in the petition was calculated at 8% per annum from the date of judgment for a period of six years - ‘allowing for a leap year falling within the said six years period, thereby introducing a 366th day’.”
I continued:
The decision in that case represents the law in this jurisdiction and is the subject of long established practice in relation to the calculation of Courts Acts Interest on Judgment Debts. The Minister in his submissions noted that the analysis set out in the judgment in Harrahill v. Kennedy accorded with the practice of the Revenue Commissioners. Accordingly it was contended that the appellant, Mr. Wood, had fallen short of demonstrating that the manner in which interest was calculated in accordance with established practice was contrary to law. In those circumstances it seems to me that there is no basis for suggesting that the calculation of interest by the Minister is erroneous as suggested on behalf of Mr. Wood and accordingly there is no error in the sum claimed in the bankruptcy summons. In those circumstances, I am satisfied that no issue has been raised in relation to the calculation of the sums due on foot of the bankruptcy summonses such as to give rise to the dismissal of the bankruptcy summonses.
The arguments of Mr. Wymes
Mr. Wymes relies on a number of specific matters which he says are such as to require the dismissal of the bankruptcy summons. The first matter raised by him in the course of his oral submissions was the issue of delay/prejudice. In that regard he has referred to three periods of delay, the first period being a delay of three years and five months from the 7th March, 2000 (when McGuinness J. dismissed applications for judicial review and a motion to review taxation of costs), which decision was not appealed whereby the stay of execution on the interim certificate was lifted and the issuance of the final taxation certificate on the 31st July, 2003 in the sum of €3,297,493.33. The second period of delay is a period of five years and six months from the date of the final certificate of taxation on the 31st July, 2003 and the date of issue of the first bankruptcy summons on the 9th February, 2009. The final issue of delay is from the period between the date of issue of the first bankruptcy summons on the 9th February, 2009 to the issue of the second bankruptcy summons on the 15th February, 2010.
This amounts in total to a period of some ten years between the 7th March to the date of issue of the second bankruptcy summons at issue on this appeal.
Dealing with the delay issue, McGovern J. in the course of his judgment noted that Mr. Wymes had not in the proceedings in respect of the first bankruptcy summons raised any issue in relation to delay between March 2000 and the 31st July, 2003. He concluded that as that point had not been raised in the previous proceedings it was not appropriate to raise an argument in respect of that matter in the present proceedings. On that ground therefore he rejected the argument. There is long established precedent to the effect that a person may be precluded from litigating an issue that could have been raised in earlier proceedings even if that issue has not previously been decided. (See Henderson v. Henderson (1843) 3 Hare 100, at page 114).
As to delay generally, McGovern J. had commented that he was “aware of the numerous court actions or appeals in which the respondents have sought to frustrate the effect of judgments given against them, whether for costs or otherwise” in the course of his judgment in relation to the first bankruptcy summons (see p. 10 of the judgment). Mr. Wymes commented that insofar as that comment was concerned it mirrored the observation of McGovern J. in respect of the second bankruptcy summons “that it was clear that the delay in execution was due to the repeated attempts by the applicants to frustrate various orders of the Court over many years” (see p. 99 of the transcript). Reference was also made by McGovern J. in the course of his judgment to a judgment of the High Court (Dunne J.) in the related proceedings, Bula Limited (In Receivership) & Ors. v. Tara Mines Limited & Ors. [2008] IEHC 437. That was a case in which the Minister for Energy and Michael O’Connell, the fifteenth and sixteenth defendants in those proceedings, sought leave to issue execution of orders in respect of the costs of the High Court dated the 24th February, 1997 and the order of the Supreme Court dated the 15th January, 1999 in respect of costs. An application was then brought on behalf of Mr. Wood and Mr. Wymes along with the first and second named plaintiffs seeking an order dismissing the application for leave to issue execution on the grounds of inordinate and inexcusable delay and pursuant to the inherent jurisdiction of the Court. The costs at issue are the self same costs that are the subject of the claim in these proceedings. The issue of delay was central to the judgment in that case. In the course of that judgment I noted (at p. 12):
“It is also the case that there can be no merit in any complaint as to delay in execution in respect of the period when the Minister could not execute by virtue of the existence of the stay on the order pending the appeal to the Supreme Court. Complaint has been made that there was no attempt to levy execution since the 24th February, 1997 or at all. Quite clearly, as Bula well knew, execution could not be levied given the stay on the proceedings and then not on the full amount due until the final certificate of taxation issued.”
It was also observed that:
“The final certificate of taxation in respect of the High Court costs did not issue until 2003. It is clear therefore that until the Supreme Court appeal was disposed of, the Minister could take no steps to execute on foot of the order of the High Court in respect of costs. It is also clear that the Minister could not execute the order until the final certificate of taxation was issued in 2003. Croskerrys were then appointed to deal with the costs due to the Minister and there were some difficulties in that regard as previously described and set out above.”
The final point made in the course of that judgment in which reference was made to a criticism as to the length of time involved in the taxation process itself. It was stated at page 12 of the judgment as follows:
“This was a most unusual case and it is not surprising that the taxation took some time.”
In the course of that judgment details are given as to various other steps taken by Croskerrys on behalf of the Minister in relation to attempts to process the paperwork in the case for the purpose of obtaining fi fa orders. In that context there is an explanation for some of the delay. Mr. Wymes in the course of his submissions on the issue of delay referred to a number of well known decisions in the context of delay such as the case of Gilroy v. Flynn [2004] IESC 98, Byrne v. Minister for Defence & Ors. [2005] IEHC 147, Stephens v. Flynn [2008] 4 IR 31, Quinn v. Faukner [2011] IEHC 103 to name a few. It should be emphasised that those judgments are dealing with the issue of delay in the context of the right to have a fair hearing within a reasonable time. In the Bula case, it was accepted in the course of the judgment that a court may have regard to the provisions of Article 6.1 of the European Convention on Human Rights in relation to delay not just leading up to the trial of proceedings but also subsequently. In that regard reference was made to the decision of the European Court of Human Rights in the case of McMullan v. Ireland (App. No. 42297/98) (Unreported, European Court of Human Rights, 29th July, 2004). In that case the ECHR commented (at p. 8):
“In addition, the Court considers the delay in the proceedings after the issuance of the taxation certificate (April 1999) to be entirely attributable to the applicant who has, to date, failed to pay the costs established on taxation as due to KC.”
Thus it appears that delay post determination of a case could be a factor to be considered in deciding whether or not a bankruptcy summons should be dismissed. However on the facts of this case, it is clear that up to the time when judgment was delivered in December 2008, any delay that had occurred was not culpable delay such as to preclude the Minister from obtaining an order pursuant to Order 42, rule 24 of the Rules of the Superior Courts and in those circumstances it is very difficult to see how delay up to that period of time could be such as to affect the entitlement of the Minister to seek to proceed by way of bankruptcy.
Having considered the submissions of Mr. Wymes on the subject of delay it seems to me that one thing can be said clearly. Delay in the execution of an order for costs or taking proceedings such as bankruptcy proceedings in order to recover a debt which has been conclusively found to be due by the courts as in this case on foot of an order for costs does not render the order for costs unenforceable. In other words, it does not seem to me that delay in executing an order for costs or in applying for a bankruptcy summons by itself could give rise to an issue requiring a bankruptcy summons to be dismissed. It is not without significance that considerable latitude is given to the process of execution under the Rules of the Superior Courts which provides for a very lengthy period of time within which to execute judgments, albeit after a period of six years, leave of the Court may be required before pursuing the matter further, as occurred in the Bula case referred to above. That latitude is very much in contrast to the time limits applicable to the commencement of proceedings to be found in the Statute of Limitations. Thus, if delay is an issue which could have a bearing on whether or not the bankruptcy summons should be dismissed, it seems to me that the delay in question must give rise to prejudice of some kind. The question then arises as to whether or not the prejudice asserted by Mr. Wymes in this case can feed into that consideration.
Prejudice
Mr. Wymes raised an issue as to the entry of judgment in respect of the sum due for costs. He contended that it was necessary upon completion of the taxation of costs process to enter judgment for the amount certified. He relied on a number of provisions of the Rules of the Superior Courts in support of his contention. Further, he exhibited in the second affidavit sworn by him on the 29th April, 2010 an affidavit of debt sworn by John Tully on behalf of Tara Mines on the 4th April, 2001 in the course of bankruptcy proceedings against Mr. Wood by Tara in which reference is made to a certificate of registration of a judgment against Mr. Wood in respect of taxed costs and contended that the Minister should have entered the sum due in the proper book in the Central Office in the same way.
On behalf of the Minister reference was made to Order 99, rule 37(34) which provides that:
“In any case in which costs are directed to be paid by any order, and the same shall be subsequently taxed and ascertained, the party entitled to such costs may, upon production of such order, and the Taxing Master's certificate of the amount thereof, have an order of execution for the payment of the certified amount of such costs.”
It was therefore contended that registration such as that which took place by Tara is not necessary. The point made was that registration of a judgment is availed of for the purpose of having the judgment made publicly known. It is not necessary for that step to be taken. McGovern J. in dealing with this aspect of the matter referred to the fact that the attested copy of the judgment had been filed in the Central Office in circumstances where the attested copy clearly emanated from the Central Office. He also referred to the provisions of Order 124 and in particular rule 2 which provides that:
“No application to set aside any proceeding for irregularity shall be allowed unless made within a reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity.”
He noted that the point made in relation to the alleged irregularity had not been made in a reasonable time nor had it been made at the proceedings in relation to the first bankruptcy summons and on that basis he dismissed the application on that point. Apart altogether from that point, it seems to me to be absolutely clear from the provisions of Order 99, rule 37(34) that it is not necessary to register the sum found to be due on foot of a certificate of taxation in order to obtain an order of execution for the payment of the certified amount. That is crystal clear from the terms of Order 99, rule 37(34). All that is required is that one produces the judgment or order awarding costs and then the Taxing Master’s certificate of the amount of the costs. In those circumstances it is clear that the point relied on by Mr. Wymes cannot succeed.
Affidavit of Mr. O’Hagan
Mr. Wymes then took issue with the grounding affidavit of David J. O’Hagan and contended that the provisions of the Rules require that a person swearing the affidavit should be duly authorised in accordance with Order 76, rule 12(3) and that in accordance with Order 76, rule 11(1) the person who swears the affidavit should be in a position to swear positively to the facts verifying the truce of the debt. The point was made on behalf of the Minister that this was not an issue raised before the High Court. Mr. Wymes in his response states that this issue was indeed raised by him in his original grounding affidavit. That is so. Nevertheless, it seems to me to be absolutely clear from the averments of David O’Hagan at paragraph 1 of his affidavit sworn on the 1st February, 2010 that he was duly authorised to make the affidavit on behalf of the Minister and Mr. O’Connell and equally that he was in a position to swear positively to the facts verifying the truth as to the debt concerned. No issue therefore could arise on this basis.
Abuse of process/collateral purpose
Mr. Wymes referred to the well known case of McGinn v. Beagan [1962] I.R. 364 from which it is clear that if the purpose for which a summons was issued was not to secure payments of debts due but was for an improper reason then if the Court is satisfied that the bankruptcy process is being used for an ulterior and collateral purpose then that will not be permitted. It was contended that Mr. O’Hagan, the Chief State Solicitor, had been in discussion with Kevin Nagle, the “local solicitor in Cork of Mr. Wood”. The essence of the complaint made by Mr. Wymes in this regard is that there were discussions between Mr. O’Hagan and Mr. Nagle in relation to a proposed municipal park for Cork in circumstances where lands of Mr. Wood were “being earmarked by the local authorities for this purpose”. It is contended that Mr. Nagle negotiated with Mr. Wymes in the period between March 2009 to November 2009 in relation to Mr. Wymes’ prior security claim over the lands of Mr. Wood in relation to the indebtedness of Mr. Wood to Mr. Wymes. It is further contended that the negotiations that took place between Mr. Nagle and Mr. Wymes took place in circumstances where Mr. Wymes was unaware of any previous discussions between Mr. O’Hagan and Mr. Nagle. In these circumstances, it is contended by Mr. Wymes that “there are substantive grounds for believing that the threatened bankruptcies have an ulterior and collateral purpose for the exercise of pressure so as to facilitate and enable the securing of lands of Mr. Wood by the local authorities at a bargain undervalue, if not fire sale, price”. Thus it is alleged that there was an abuse of process and a collateral and ulterior purpose in issuing bankruptcy proceedings.
In this context it is worth recording what was stated in relation to this argument by the learned trial judge. He stated at p. 102 of the transcript in respect of his ex tempore judgment as follows:
“The evidence of this appears to be primarily related to an argument concerning Cork lands which were owned by Mr. Wood, and in respect of which Mr. Wymes may have had some charge, or interest, or equity. The arguments made to the effect that this in some way related to the process of bankruptcy being pursued by the petitioners, is something I simply do not understand. I think it is at best wild speculation, and merely because Mr. O’Hagan, or others on his behalf, may have been at one point in some discussions with the applicants, or either of them, in regard to these lands, does not mean that the use of the Bankruptcy Code to pursue their claims for the costs, which have been taxed and ascertained many years ago is an abuse of process.”
On that basis he rejected the argument made by Mr. Wymes.
It appears that there are serious disputes between Mr. Wood and Mr. Wymes in relation to the settlement of obligations between themselves, apparently the subject of other proceedings. It seems to me that regardless of the fact that discussions may have taken place between Mr. Nagle and Mr. O’Hagan some years ago in relation to a resolution of the indebtedness of Mr. Wood to the State in respect of the costs at issue in these proceedings, it is difficult to see any factual basis beyond speculation and suspicion on the part of Mr. Wymes for suggesting that there was a collateral or ulterior motive on the part of the State in pursuing these bankruptcy proceedings. That there were discussions to settle the outstanding liabilities of Mr. Wood is not enough. It is clear from the conduct of the Minister in relation to this matter that the purpose of these proceedings is to recover the amount due from Mr. Wood and Mr. Wymes through the bankruptcy process. There was nothing to stop Mr. O’Hagan on behalf of the Minister from entering into negotiations to attempt to resolve the issue with Mr. Wood. The fact that those negotiations were not successful is neither here nor there. There is no basis for concluding that the issue raised in this regard by Mr. Wymes is anymore than an assertion unsupported by any cogent evidence and as such is not one that could succeed and accordingly I reject his submissions on this issue.
Res judicata
Mr. Wymes then raised an argument in relation to the doctrine of res judicata. This concerns an argument made by Mr. Wymes as to whether or not a judgment mortgage is a form of execution. The learned trial judge declined to deal with this argument on the basis that in the earlier bankruptcy proceedings he had dealt with this matter in the course of his judgment. (See page 8 of the judgment of McGovern J. in Minister for Communications v. M.W.). In support of his argument, Mr. Wymes referred to section 135 of the Bankruptcy Act 1988 which provides as follows:
“The Court may review, rescind or vary an order made by it in the course of a bankruptcy matter other than an order of discharge or annulment.”
It is contended that by virtue of this provision the Court has a jurisdiction to revisit its previous decision. It does not seem to me that that provision can avail Mr. Wymes or that it amounts in some way to an exception to the res judicata doctrine. Section 135 is an unusual provision insofar as it does permit the Court to review an earlier order made in the then extant proceedings. While s. 135 may be unusual in allowing a court to review an order previously made in proceedings then before the Court, I cannot see how s. 135 can be relied on to allow an issue decided in other proceedings to be revisited in these proceedings. In those circumstances, I am satisfied that the approach of the learned trial judge was correct.
Insofar as the issue of delay is concerned, it is the case that the learned trial judge in the course of his ex tempore judgment commented as to the views expressed by him in his earlier judgment where he stated (at para. 22 of that judgment):
“It [was] clear that the delay in execution was due to the repeated attempts by the applicants to frustrate various orders of the courts over many years.”
As to a particular period of delay between March 2000 and 31st July, 2003, he commented that no point was raised in regard to that aspect of the matter before in the earlier application to discharge the bankruptcy summons and on that basis he rejected the argument in regard to that. Having said that, he went on to consider the issue of delay generally and the rejected the argument based on delay. In those circumstances, it is clear that the arguments of Mr. Wymes were taken into consideration in relation to the issue of delay and rejected. Thus, the doctrine of res judicata had no bearing on this issue. Insofar as the argument as to the point not raised previously is concerned I have already referred to that argument and to the jurisprudence arising from the decision in the case of Henderson v. Henderson and it is not necessary to repeat that here.
Pre-judgment/bias
The final point raised by Mr. Wymes relates to what is contended by him to be pre-judgment on the part of the learned trial judge. This was encapsulated in his written submissions in which he stated that at the commencement of the hearing the learned trial judge stated that he had read the papers and that there “seemed to be only one issue remaining” which was “whether or not the computation of the interest having regard to the Statute of Limitations” was correct and commented not once to that effect but three times. It seems to me that the argument made by Mr. Wymes in this regard is entirely misplaced. The Court has had the benefit of the transcript of the hearing which took place before the learned trial judge. It is abundantly clear that whatever the initial impression of the trial judge in relation to the issues to be decided at the commencement of the hearing, it is quite clear that Mr. Wymes was able to put all of his arguments and raise all of the issues he wished to raise before the learned trial judge and an extensive ruling was thereafter given by the learned trial judge. It is inevitable that a trial judge in the course of dealing with a matter will make observations and comments in relation to the matter before him.
Counsel on behalf of the Minister referred to the decision of the Supreme Court in the case of O’Callaghan v. Mahon [2008] 2 IR 514 and placed particular reliance on the following paragraph in which Fennelly J. stated (at para. 548):
“It is an inherent and invaluable part of the common law system of justice that open, sometimes even vigorous, argument takes place between bar and bench. Judges, on a daily basis, express opinions in the form of questions, statements or argument in the course of a hearing. The whole purpose of these exchanges is to enable the parties to address doubts or difficulties raised by the judge. Arguments are tested and contested. This can, and frequently does, enable counsel to change the judge's mind. On other occasions, the weakness of an argument is exposed. If judges did not come to the process with some clear, even strongly held, views, based on the experience they bring to the judicial process, they would be of little value as judges. Parties and their legal advisers assess how a case is going. They discern the approach of the judge. This may lead to a settlement. I am aware that there exists a different culture in the courts of some European countries. I understand that in some it is unheard of for the judge to intervene. I can only say that I do not agree. Of course, a judge may so behave that he steps outside his judicial role. If he does, it will be obvious. In my view, that is what is required, something quite outside the bounds of proper judicial behaviour to establish objective bias, based on judicial statements.”
The comments referred to by Mr. Wymes in the course of his submissions on this issue do not in my view give rise to any possible apprehension of bias/pre-judgment on the part of the learned trial judge. The learned trial judge did what is described by Fennelly J as commonplace on a day to day basis in the courts in this jurisdiction, namely making a comment or observation as to what appeared to him to be the issue/s in the case. That is unremarkable. As can be seen, Mr. Wymes made his arguments and submissions before the learned trial judge and the judge ruled on those. In the circumstances, there is no basis at all for asserting that there was any form of pre-judgment/bias on the part of the learned trial judge.
Conclusion
Mr. Wood in these proceedings has raised one issue in relation to the question of computation of interest. The contention of Mr. Wood in this regard has already been determined in this jurisdiction and is settled law and accordingly I am satisfied that no issue arises in this regard. Mr. Wymes has raised a number of points but as has been made clear, having regard to the authorities referred to above, none of the issues raised by Mr. Wymes meet the threshold of being a real and substantive issue that is at least arguable and has some prospect of success. In those circumstances I would dismiss the appeals brought by Mr. Wood and Mr. Wymes in respect of the application to dismiss the bankruptcy summonses herein.
