High Court of Ireland Decisions

1. In this action the plaintiff's (Holdings) claim against the defendant (Bula) is for repayment of £100,950,760.00 being capital allegedly advanced on divers dates from 23rd December, 1979 by Holdings to Bula and interest thereon up to 31st March, 1997 and continuing thereafter. Bula is in receivership. Mr. Laurence G. Crowley, the receiver, disputes the claim by Holdings on three grounds. First, that the action, having been commenced on 22nd August, 1997 without prior warning, he had not had sufficient time up to the hearing of a motion herein on 13th November, 1997 to investigate fully the nature and veracity of the plaintiff's claim. Secondly, it is submitted that part of the claim for interest in not recoverable and, thirdly, it is also submitted that the entire claim for capital and interest is statute barred.

2. This action is the latest in a protracted litany of litigation from 1986 relating to mining interests of Bula at Nevinstown, Co. Meath. There are two primary actions; one brought by Bula and others, including Holdings, against Tara Mines, the State and others (Bula I). Judgment was delivered in that action by Lynch J. in February, 1997. The plaintiffs failed on all grounds and an appeal is pending in the Supreme Court against the entire of the judgment. The second primary action (Bula II) has been brought by the same plaintiffs as in Bula I and is against Mr. Crowley, various banks and a firm of mining engineers. The claims made therein are based on alleged negligence and breach of contract by the defendants and each of them. That action commenced before me in April, 1997. It emerged that many matters of fact and law found by Lynch J. in Bula I are relevant also to issues raised in Bula II. In a reserved ruling delivered on 29th April, 1997 I held, for the reasons therein stated, that I regarded myself as bound by relevant findings of fact and law made by Lynch J. unless and until they were set aside by the Supreme Court in the Bula I appeal.

3. When the Bula II action resumed on 10th June, 1997 Mr. Traynor, counsel for the plaintiffs, informed the court that in the light of my ruling on the status in Bula II of relevant findings of fact and law made by Lynch J. in Bula I, it was then conceded on behalf of the plaintiff that the claims made in Bula II (other than those relating to the Statute of Limitations) cannot succeed against the defendants or any of them (the banks and the receiver) while certain findings of fact made by Lynch J. in his judgment retain their present status and validity. In short, it was conceded by Mr. Traynor on behalf of his clients that all claims made by the plaintiffs against the banks and the receiver in Bula II, other than outstanding issues relating to the Statute of Limitations, must fail unless Bula is successful on its appeal to the Supreme Court in Bula I and the relevant findings made by Lynch J. are set aside by that court. Accordingly, Mr. Traynor sought an order staying Bula II or, alternatively, adjourning it pending the outcome of the plaintiffs' appeal to the Supreme Court in Bula I. The banks and the receiver opposed the application.

4. Having reserved my decision, I delivered a formal ruling on 18th June in which, inter alia, I acceded to Mr. Traynor's application but on certain terms which included the following:-

5. An undertaking in those terms was duly given on behalf of the plaintiffs, including Holdings.

6. The present action was commenced by summary summons dated 22nd August, 1997. Bula (in effect Mr. Crowley, the receiver) has by motion on notice sought an order staying the action pending the outcome of the appeal to the Supreme Court in Bula I on the ground that, although the present action is not strictly in contravention of the embargo on further proceedings and the undertaking on behalf of Holdings in that regard which was a condition of the adjournment of Bula II, it is contrary to the spirit of the undertaking given on behalf of Holdings and the intention of the embargo as to further proceedings. Mr. Crowley's contention is that it would be unjust in all the circumstances to permit Holdings to proceed with this action prior to the judgment of the Supreme Court on the appeal in Bula I and that this court has authority to stay these proceedings.

7. There are two points which are crucial to the application on behalf of Bula. First, the embargo on further litigation imposed by me in connection with the adjournment of Bula II relates to claims based on wrong-doing e.g. alleged negligence and/or breach of contract by the defendants in Bula II or any of them. The claim made herein by Holdings does not involve, directly or indirectly, any allegation of negligence or breach of contract or other wrong-doing by Bula or its receiver. It is, therefore, not only outside the strict terms of the undertaking regarding further proceedings given on behalf of Holdings, but it also does not offend the spirit of the undertaking. Secondly, Holdings is entitled to take all steps lawfully open to it to protect its position and that of the persons it represents. If its claim against Bula for refund of capital and interest is successful in whole or in part, it will be entitled to register its judgment against the property of Bula at Nevinstown. One advantage of so doing is that it would provide Holdings with some leverage in negotiations with the receiver of Bula, and the banks which appointed him, in the event of a proposed sale of the Bula mining property by the receiver. It appears that there is a large tax advantage in selling the property in the receivership rather than directly by the banks which is the alternative route. I accept that it is in the interest of Holdings to proceed for judgment against Bula as soon as possible because there are other competing claims which may result in various substantial judgment mortgages being registered against the property in question in due course. The most important of these is a potentially huge bill of costs for which Bula would be liable if the appeal to the Supreme Court in Bula I is unsuccessful. If Holdings are forced to delay the prosecution of their claim herein judgments may be obtained by other creditors which could be registered as mortgages against Bula's property ahead of whatever judgment Holdings may obtain in its claim herein. I make no finding on whether the court has power to stay the present action brought by Holdings. Suffice it to say that in my opinion it would be unjust to inhibit Holdings from proceeding with its claim against Bula in these proceedings.

8. The defendant's application is refused.