Supporting Documents:
63-19 Resp Notice.web.pdf63-19 AFL.web.pdf

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF A BANKRUPTCY SUMMONS ISSUED BY ENNIS PROPERTY FINANCE DESIGNATED ACTIVITY COMPANY (SUMMONING CREDITOR) AGAINST DOMINIC CARNEY (DEBTOR)

RESULT: The Court does not grant leave to the Debtor / Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 20th February, 2019

DATE OF ORDER: 20th February, 2019

DATE OF PERFECTION OF ORDER: 12th March, 2019

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 1st April, 2019 AND WAS IN TIME.

1. This determination relates to an application for leave to appeal.

2. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

3. Furthermore, the application for leave filed and the Respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.

4. In that context it should be noted that the Respondent does oppose the grant of leave.

Decision

5. The applicant in this case owed a sum of money on foot of a guarantee to Bank of Scotland (Ireland) Limited. By means of a series of transactions, Ennis Property Finance Limited acquired the loan and the security provided by the Applicant herein. It subsequently commenced proceedings seeking to recover the sum alleged to be due on foot of the guarantee and, having changed its name to Ennis Property Finance Designated Activity Company, (Ennis) it obtained judgment against the Applicant herein for the sum of €100,000 on foot of the guarantee. Bankruptcy proceedings were then issued against Mr. Carney on the 22nd May, 2017. On the 31st May, 2017, the Applicant applied to the Court of Appeal to extend the time within which to appeal from the order granting judgment against him on the 27th February, 2017 but was unsuccessful in circumstances where the Court of Appeal concluded that he had not demonstrated any arguable ground of appeal.

6. It appears that there was difficulty in serving the bankruptcy summons on the Applicant herein and ultimately an order was made extending the time within which the bankruptcy summons could be served and it was further ordered that it could be served by ordinary pre-paid post. The Applicant then made an application to the High Court to have the bankruptcy summons dismissed pursuant to the provisions of s. 8(5) of the Bankruptcy Act 1988. That application was grounded on an affidavit sworn by him on the 19th July, 2017. A number of issues were raised by the Applicant as being the basis for setting aside the bankruptcy summons. They included the fact that he wished to appeal the judgment obtained on foot of the guarantee, that he was entitled to notice of the application for substituted service, that Ennis was not the beneficiary of the guarantee, that Ennis had appointed a receiver over the assets of the company which had been guaranteed by the Applicant and had failed to realise their value, that the guarantee had been discharged by providing a promissory note to Bank of Scotland (Ireland) and that Ennis had not "acted with clean hands". The Applicant contended that Ennis had pursued bankruptcy proceedings in breach of his constitutional rights in circumstances where it was not the holder in due course of any loan note/agreement or guarantee.

7. The High Court (Costello J.) in its judgment of the 16th July, 2018 considered the matters raised by the Applicant and concluded that no issue would arise for trial between the parties and in those circumstances, refused the application to dismiss the bankruptcy summons. The matter was then appealed to the Court of Appeal and again the matter was dealt with extensively in that Court in a reserved judgment of the 20th February, 2019 (delivered by Irvine J.). The appeal was dismissed and it is that decision which the Applicant now seeks leave to appeal to this Court.

8. The Applicant in his application for leave has referred to a number of provisions of the Constitution and to the European Convention on Human Rights in asserting that the appeal he wishes to bring gives rise to matters of general public importance justifying an appeal to this Court. He complains that the High Court and the Court of Appeal relied on authorities not advanced by the respondent in support of its arguments and contends that this is a breach of Article 15 of the Constitution. Reference is made as to “without prejudice” discussions that took place after judgment was delivered in the High Court. As the Court of Appeal refused to hear evidence as to these discussions it was contended that this decision of the Court of Appeal was wrong. Further it was contended that that evidence would have demonstrated that the Respondent was holding bankruptcy over the Applicant's head in order to stop him from litigating against "the petitioner's agent", the receiver appointed over the assets of the principal debtor, and thus it was contended that the bankruptcy proceedings amounted to a collateral attack, an abuse of court process, were frivolous, vexatious and for the purpose of stopping the Applicant from pursuing proceedings against the receiver. Finally, reference was made to a number of provisions of the European Convention on Human Rights and it is argued that the hearing before the High Court and the Court of Appeal allowed breaches of those provisions.

9. In addition, a number of matters were said to give rise to reasons why the appeal should be permitted on the basis of the interests of justice. The Applicant re-iterated his complaint as to the use of bankruptcy proceedings. It was contended that there was no evidence before the High Court or indeed the Court of Appeal to the effect that bankruptcy proceedings would result in satisfying the "alleged debt". He repeated the complaint that the proceedings were issued for the purpose of preventing the Applicant from pursuing the receiver appointed by Ennis in order to enable the receiver to sell the Applicant's chattels without incurring liability. It was also said that the effect of adjudication in bankruptcy would be detrimental to the Applicant and that there were other methods of debt recovery which had not been utilised by the Respondent and in those circumstances the "balance of justice should be operated in favour of the Applicant". A general complaint was then made as to the courts applying their own laws without jurisdiction and considering authorities not placed before the court for consideration.

10. The Respondent in its response has contended that there are no matters of general public importance engaged in the appeal and has pointed out that judgment was obtained in the High Court in respect of the sum of €100,000 on the 27th February, 2017 and that the Applicant sought an extension of time to appeal from that decision and that was refused. It is contended that no constitutional issues are engaged in the application for leave to appeal. Complaint is made as to the fact that the Applicant has sought to rely on “without prejudice” communications in the application for leave to appeal and the Respondent challenges the accuracy of the matters set out in relation to that “without prejudice” communication. Further, it is contended that the High Court and the Court of Appeal correctly rejected the claim that the bankruptcy proceedings had been brought for an ulterior purpose. It is stated that the purpose of the proceedings was the recovery of the debt due.

11. It is further contended on behalf of the Respondent that the interests of justice favour the Respondent in seeking to recover its debt through the bankruptcy process.

12. It is abundantly clear from the judgments of the High Court and the Court of Appeal that the decisions of those Courts were based on well established case law. The Courts apply the law and do so having regard to such case law. The authorities referred to in the judgments of the High Court and the Court of Appeal are well known and as such did not have to be referred to by either of the parties to the proceedings.

13. The Court is satisfied that none of the matters raised by the Applicant give rise to any issue of general public importance and that it has not been established that it is in the interests of justice that there should be an appeal to this Court. Further insofar as the applicant has sought a reference to the Court of Justice of the European Union it is clear from the decision of the Court of Appeal that no issue of European law arises.

14. In the circumstances this Court will refuse the application for leave to appeal to this Court.

And it is hereby so ordered accordingly.