High Court of Ireland Decisions

1. There are two motions presently before the court on which rulings are required prior to the trial of issues arising out of the Statute of Limitations .

2. First, the plaintiffs were given liberty by Morris P to issue revised Points of Claim which it is submitted relate to outstanding limitations issues. The defendants submit that what the plaintiffs are seeking to do is to introduce new claims which are within the ambit of an order made by me in this action on 18th June, 1997 and an undertaking given by the plaintiffs pursuant thereto the effect of which prohibits them from making new claims against the defendants or any of them of which the plaintiffs were aware or ought to have been aware at that time. The first preliminary issue for determination, therefore, is whether or not the new claims now sought to be introduced by the plaintiffs are captured by the foregoing prohibition and, therefore, may not be introduced in this action.

3. The second matter is related to the first and arises out of a motion brought by the plaintiffs in which they seek further discovery of documents in connection with the new claims in the proposed revised Points of Claim which it is sought to introduce in connection with the limitation of action issues which are about to be tried by this Court i.e., the residue of outstanding issues in the Bula II action.

4. There is a protracted, intricate history of litigation between the parties to the present action and other parties regarding ore-bearing lands the property of the plaintiff company (Bula) which has gone on for upwards of 14 years. It is unnecessary to refer to each such action. Suffice it to state that there are, or were, two main actions each brought by Bula and its guarantors (Mr. Wymes, Mr. Wood, Mr. Roche Senior - since deceased - and Mr. Roche Junior). In practical terms the person who at all material times has driven the plaintiffs’ litigation in those and other related actions is Mr. Wymes. He has demonstrated over the years a dedicated determination to do everything which he perceives is possible to prevent the sale of Bula’s ore-body notwithstanding the outcome of litigation so far which has been adverse to the interest he seeks to pursue.

5. The first major action was brought by the plaintiffs against Tara Mines and others (Bula I). It continued for 277 days in the High Court before Lynch J and culminated in a judgment in which the learned trial judge rejected the plaintiffs’ claims and , inter alia , criticised the reliability of Mr. Wymes. An appeal was brought to the Supreme Court against that judgment. While the appeal was outstanding the second major action (Bula II i.e., the present action) was commenced before me. It relates, inter alia, to claims made against the Banks named therein and the Receiver who had been appointed by them over the assets of Bula. A number of issues were raised by the plaintiffs in Bula II arising out of facts which had already been determined in Bula I by Lynch J. This posed a question as to whether in the circumstances I should regard myself as bound by the findings of fact made by Lynch J unless and until any such finding was rejected by the Supreme Court on appeal. Having heard arguments on both sides, I delivered a reserved reasoned ruling on that issue on 29th April, 1997. I decided that, subject to the outcome of the appeal in Bula I, I was bound by the findings of fact made by Lynch J in that action. Ultimately it was conceded on behalf of the plaintiffs that if the Supreme Court upheld the judgment of Lynch J, including his findings of fact therein, the plaintiffs could not succeed on any of the issues raised in Bula II save only those relating to the Statute of Limitations. The plaintiffs sought an adjournment of the “non-limitations” issues in Bula II pending the outcome of the appeal in Bula I. They wished to proceed with the issues relating to the Statute of Limitations. However, the defendants were unwilling to proceed with the latter. It was contended that there were issues of fact involved on which the Supreme Court judgment might have a bearing.

6. There is also a third action which has substantial significance in relation to the foregoing issues presently before this Court. Bula commenced an action by plenary summons dated 13th March, 1997 against Mr. Crowley, the Receiver. In it an Order was sought by Bula against the defendant directing him to deliver up possession of the Bula lands consequent upon the contention that his right to possession has been extinguished pursuant to statute. Damages were also sought for trespass, detention, conversion, breach of contract, negligence and/or breach of duty, intimidation, conspiracy, acting in excess of authority, abuse of process, mesne profits, interest and costs. An appearance was entered on 21st March, 1997. Notice of intention to proceed dated 14th May, 1999 was served and on 21st June following a Statement of Claim was delivered. A lis pendens was registered on 17th May, 1999.

7. The Statement of Claim, which ran to 40 paragraphs, was summarised by Carroll J in a reserved judgment to which I shall refer presently in the following terms:-

8. On 5th July, 1999 the Receiver issued a notice of motion claiming that the proceedings should be struck out -

9. An Order vacating the lis pendens registered in the action was also sought.

10. The motion duly came on for hearing before Carroll J and her reserved judgment to which I have already referred was delivered on 15th December, 2000. Inter alia , she considered specifically the grounds relating to breach of undertaking by the plaintiffs referred to in my order of 18th June, 1997, under which they are prohibited from pursuing the

11. In the final paragraph of her judgment Carroll J dealt with the submission made on behalf of Bula that there had been an abuse of the process of the Court by the Banks in not informing me in Bula II on or before 18th June, 1997 about proceedings claiming debts and seeking well-charging orders which had been instituted at that time, and in seeking to utilise such proceedings, not for the purpose stated therein, but simply as a means to stop time running against the claimants. That finding is referred to hereunder .

12. Various affidavits, including several of great length, were filed on behalf of the respective parties. The first was that sworn by Mr. Crowley to ground the motion. It was summarised as follows in the judgment of Carroll J

13. Carroll J referred to the affidavits in reply sworn by Mr. Wymes and set out at length the case made by him. The learned judge stated, inter alia,

14. Mr. Wymes referred in detail to suspense accounts at NBFC and claimed that the total of suspense account money with accrued interest amounted to £4.4 million and serves as a setoff against the £5.2 million allegedly owed to NBFC. He claimed that the solicitors for the banks agreed by letter of 19th December, 1997 that Bula was entitled to such setoff . He further claimed that by reason of the payments made of £3,112,667.90 and the suspense account setoff in the region of £4.4 million the debt of £5.2 million to NBFC arising pursuant to my order made on 29th April, 1997 is extinguished and that NBFC owe Bula £2.3 million. If according to the agreement in 1980 that payments by Bula were to be in respect of principal, the principal amount of £2.75 million would have been reduced by the payments of £1,262,235.70 made prior to demand. Mr. Wymes also contended that he had not been given information sought by him concerning certain guarantees and other matters to which he was entitled. He claimed that he cannot verify the accuracy of relevant figures without that information. He contended that the title of the Receiver and right to execute for repayment of principal and interest are all extinguished; that the object of the Receiver’s appointment no longer exists and that he is not entitled to act and should be discharged. He claims the mortgages and debentures should be cancelled and Bula’s assets returned to it with documents of title and other related documents held by the Receiver.

15. The judgment of Carroll J also contains the following passage at p.11:-

16. The arguments advanced by Mr. Wymes were responded to by the Receiver in his second affidavit which is also referred to in extenso by Carroll J. He set out further details as to various amounts due and payments made prior to and subsequent to demand. He contended that taking the best possible senario as to the plaintiffs’ situation (which was contested by him) was that at best from the point of view of Mr. Wymes there was a balance due to NBFC of £1,394,670.00. The Receiver responded to the various contentions made by Mr. Wymes and an affidavit was also sworn by Mr. Ryan of NBFC confirming that the figures in the Receiver’s grounding and supplemental affidavits are correct. Mr. Wymes responded at length in a second affidavit which gave rise to a third affidavit sworn by the Receiver. In course of the hearing before Carroll J a third affidavit sworn by Mr. Wymes was introduced in evidence. The essence of the foregoing depositions are recited in the judgment of the learned trial judge. She then continued at p. 18 as follows:-

17. Carroll J. referred to and commented on the various written submissions furnished on behalf of the plaintiff. She also considered in detail the order made by me on 18th June, 1997 and the nature of the undertakings given by the plaintiffs in Bula II. She continued at p. 23:-

18. As already stated, Carroll J concluded her judgment by deciding a further issue of law to which I shall return later in this ruling.

19. The plaintiffs’ final re-revised Points of Claim are as set out in the schedule to

20. In deciding whether or not the plaintiffs should be permitted to pursue in Bula II all or any of the foregoing new claims the status of which are challenged by the defendants, there are two aspects of law which are pertinent.

21. The law in that regard was considered by me in this action in the context of the effect of rulings on law and findings of fact made by Lynch J in Bula I and I summarised it in the following passage in my considered ruling delivered on 29th April, 1997 at page 8 as follows:-

22. The status of a prior relevant judgment by a Court of equal jurisdiction was considered by Parke J in Irish Trust Bank -v- Central Bank of Ireland [1976-7] ILRM 50. The judgment contains the following passage at p.53:-

23. I have no doubt that the relevant findings of fact and of law made by Carroll J are four square within the parameters of the judgment of Parke J in Irish Trust Bank -v- Central Bank of Ireland supra and of my ruling in this action to which I have referred.

24. I have no difficulty in accepting that proposition which is supported by long-standing well established authorities. See judgment of the Supreme Court in Baulk -v- Irish National Insurance Company [1969] IR 66 and in particular the judgment of Walsh J which is that of the Court. It contains the following passage at p.71:-

25. This clearly implies that the efficacy of a plenary summons is not dependent on service and that the issuing of it will stop time running per the Statute of Limitations.

26. The second aspect of law which must be addressed is the proper interpretation of Order 28 of the RSC. Rule 1 thereof is in the following terms:-

27. The rule provides that a party may seek to amend his pleadings at any stage of the proceedings and the Court has a discretion to allow or disallow the proposed amendment. It will be noted that in exercising its discretion the primary objective of the Court is to achieve justice between the parties and, subject to that overriding requirement, all amendments shall be authorised as may be necessary for the purpose of determining the real questions in controversy between the parties.

28. In the context of the instant case the overriding requirement of achieving justice between the parties includes the honouring by the plaintiffs of the undertaking given by them which prohibits the introduction of new claims of which they were aware or ought to be have been aware on 18th June, 1997. I regarded that undertaking then, and I continue to regard it now, as being of crucial importance in introducing a fair balance of justice in the conduct of litigation between the parties. If it were ignored by the Court, or not rigorously enforced, I apprehend that in all probability Mr. Wymes would continue orchestrating, as he has done in the past, more and more litigation in pursuit of his huge determination to prevent, or at least postpone indefinitely, the sale of the Bula ore-body. It would be manifestly unjust to allow him to continue manipulating the litigation process in that way and thus frustrating the rights of the defendants. Accordingly, “new claims” must be rigorously examined in the context of the undertakings contained in the order made herein on 18th June, 1997.

29. The foregoing interpretation of Order 28 rule 1 in the context of the introduction of new claims in this action as sought by the plaintiffs is not at variance with the judgments of O’Sullivan J in Cornhill and Others -v- Minister for Agriculture and Food and Others [High Court unreported 13th March, 1998] and Kinlen J in Bell -v- Pederson [1996] 1 ILRM 290 in both of which the importance of achieving justice between the parties is recognised in the context of the Court’s discretion on an application to amend pleadings.

30. Reviewing the new claims in the re-revised Points of Claim now sought to be litigated in Bula II in the context of the foregoing criteria and principles of law, my conclusions are as follows:-

31. There are five new claims now sought to be added to the limitation issues in Bula II. It is contended that all but one of them are matters which have arisen post 18th June, 1997 and are not within the undertaking given by the plaintiffs on that date regarding the initiation of new claims. The following numbered paragraphs relate to the Points of Claim to which I have referred.

32. The proceedings in question were initiated against Bula on various dates in April, 1997 but had not been served at the time of the plaintiffs undertaking given on 18th June, 1997. There is no evidence to suggest that the plaintiffs had any knowledge of such proceedings on the latter date. I accept that they did not know at the time of their undertaking and could not reasonably have been aware that such proceedings had been instituted against Bula. It follows that the claim pleaded in paragraph 23, being new and not covered by the undertaking, is one the inclusion of which the Court might consider favourably. It is not the function of the Court, on an application to amend pleadings by inclusion of a new claim, to assess the weight of the case in support of the proposed claim. In making its decision it is sufficient that the Court should be satisfied that there is a stateable argument in support of the claim which it is sought to include in the proceedings and that its inclusion would not be unjust to the defendants. I am satisfied that these criteria have been met and that the claim pleaded in paragraph 23, including the alternative claim therein, should be allowed. Likewise paragraph 22, which provides relevant factual information, should be allowed.

33. It is submitted on behalf of the plaintiffs that if any of the Banks should be found to be entitled to the recovery of their principal monies, that their consequent interest claims should be limited to six years arrears of interest (as opposed to arrears of interest going back to the late 1970’s). The plaintiffs wish to argue that Bula and the guarantors are entitled to require the Banks to offset as against whatever sum (if any) should ultimately be found to be due and owing to NBFC by Bula the monies held by NBFC in their suspense accounts. It is further contended that any reduction in the principal monies continuing to be owed by Bula to NBFC would also result in a consequent reduction in the calculation of interest payable so as to cause the total figure of six years arrears of interest together with the surviving principal monies to reduce to such a figure as might be capable of repayment or extinguishment by the suspense account monies. It is submitted that the proposed amendment in relation to the NBFC suspense accounts should be allowed on each of four different grounds:-

34. The essence of the difficulty facing the plaintiffs regarding the inclusion of new claims relating to the NBFC suspense accounts is summarised in the submissions on behalf of the Banks at pp. 8 - 11 as follows:-

35. Counsel for the plaintiffs concede that this is the correct legal position.

36. A similar argument has been advanced in submissions furnished on behalf of the Receiver . The following passage occurs at pp. 11/12 under a heading “THE SUSPENSE ACCOUNTS CLAIMS”:

37. In the light of the foregoing it seem to be well established that the argument sought to be advanced on behalf of the plaintiffs regarding the suspense accounts is untenable in Irish law and must fail. In short, the plaintiffs have failed to show that there is a statable argument in support of the new claim they wish to include as to the suspense accounts and I refuse their application in that regard.

38. There is also another aspect to the new claim contained in paragraph 26. It pleads the right to pray in aid the benefit of any other payments received by NBFC “..... on foot or as a result of .....” the personal guarantees. This proposed amendment refers generally to amounts received or payments to the benefit of Bula by any other party or the guarantors, including the Roches, or on foot of or as a result of the guarantees of the Roches.

39. This opens up a contention made by Mr. Wymes based on anecdotal hearsay evidence furnished to him by his daughter, Elizabeth Dillon, which is referred to in an Affidavit sworn by her on 24th January, 2001 . It contains the following averments:-

40. Certain conclusions may be drawn from Kathleen Dillon’s deposition:-

41. Whether or not the Banks may have accepted a cash deposit or other form of security from Mrs. Ann Roche in lieu of lands mortgaged by the Roche guarantors or either of them does not affect the liability of Bula to the Banks or the liability of Mr. Wymes or Mr. Wood on foot of their guarantees. The alleged arrangement, if any, what ever it might have been is irrelevant to the limitation issues with which I am concerned. The claims in paragraphs 26 and 27 are disallowed.

42. The claims referred to therein concern Mr. Wood’s suspense account with AIIB. The argument advanced in support of the claim in the plaintiffs' submissions at pp. 16/19 is as follows:-

43. The response of the Banks is set out at p.11 of their submissions as follows.

44. In considering whether or not to allow the inclusion of the claims at paragraphs 28 and 29 it is important to bear in mind that it is a claim which is being advanced specifically on behalf of Mr. Wood, a party to this action. The issue which arises is in my opinion quite different to that relating to the other suspense accounts. Mr. Wood is entitled to know where he stands vis- à-vis the AIIB suspense account and to make such decisions in that regard as may be open to him when all relevant facts have been revealed and it has been decided whether or not the AIIB debt is statute barred. It is urged on his behalf and on behalf of Mr. Wymes that the end result could have an important bearing on the ultimate indebtedness (if any) of Bula to the Banks and the right of the Receiver to sell the ore-body. It seems to me that a stateable argument has been advanced supporting the inclusion of paragraphs 28 and 29. I also allow the additional wording included in paragraph 30 which is related to paragraphs 28 and 29.

45. It is explained in the plaintiffs’ submissions that this proposed amendment deals with arrangements concerning the past, present or future legal and/or beneficial ownership of securities under two separate headings, namely:

46. Mr. Ryan on behalf of NBFC has sworn two recent affidavits dealing with the issue raised in paragraph 33. It is contended in the plaintiffs’ submissions at pp.22 et seq.

47. The plaintiffs submission on paragraph 33 concludes with the following summary of their argument:-

48. The Banks’ response is contained in the following passage from their submissions at pp.11/12.

49. The application to include paragraph 33 in the Points of Claim is dealt with as follows in the Receiver’s submissions at pp.12/13.

50. Weighing up the foregoing arguments advanced on either side, I am satisfied that the plaintiffs have failed to show that there is a stateable case in support of their contention that the claims pleaded in paragraph 33 should be included in the Points of Claim. In particular, I regard the criticism of Mr. Ryan’s affidavits as being unreal. Accordingly, the inclusion of paragraph 33 is refused.

51. The new claims at (xiii) and (xvii) are approved, but I am not prepared to allow the claims specified at (xiv), (xv) and (xvi). Apart from the claims refereed to herein which I have ruled out, the remainder of the Points of Claim is acceptable and, with the defendants’ defence thereto, will constitute the parameters of the remaining issues outstanding in this action.

52. I am satisfied that the remaining Statute of Limitations issues are essentially matters of law in relation to which no further discovery of documents is required. However, it is proper that there should be up-to-date discovery relating to the suspense accounts held by NBFC and AIIB in connection with Mr. Wood and any company controlled by him .