High Court of Ireland Decisions

Judgment Title: Earl -v- Cremin & Ors

Neutral Citation: [2007] IEHC 69


High Court Record Number: 2005 1528 P

Date of Delivery: 27 February 2007

Court: High Court

JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON
TUESDAY, THE 27TH DAY OF FEBRUARY 2007
Introduction:
These proceedings were commenced by Plenary Summons issued on 29th April 2005. That Plenary Summons was amended on 1st June 2005 pursuant to an Order made by
Mr. Justice Clarke on 31st May 2005 and again on 11th April 2006 pursuant to an order made by Ms. Justice Finlay Geoghegan on 7th April 2006. The
effect of the amendments made on 1st June was to add the Sixth and Seventh Named Defendants to the proceedings whereas the effect of the amendments on
11th April 2006 was to abandon the claim for certain
reliefs which had been advanced against the Defendants. A conditional appearance was entered on behalf of the 3rd, 4th, 5th and 6th Defendants on
12th May 2006 and 25th May 2006. The Plaintiff
purported to serve a Statement of Claim and Notice For Directions returnable before the Court on
20th May 2006.
The Amended Plenary Summons served on the 3rd, 4th,
5th and 6th Defendants set out the following reliefs
against them:-
"(a) A declaration that the Third,
Fourth and/or Fifth Named Defendant
and/or the Sixth Named Defendant and/or
Seventh Named Defendant are directors
and shadow directors within the meaning
of that term pursuant to Section 27 of

that the Companies Act, 1990.
(b) A declaration that the Defendants
(and/or each of them) were knowingly a
party to the carrying on of business of
Cedarlease Limited in a reckless
manner.
(c) A declaration that the Defendants
should be made personally liable
without any limitation of liability for
all or part of the debts of Cedarlease
Limited.
(d) Damages for misfeasance pursuant
to Section 298 of the Companies Act
1963, and
(e) (An order directing the Defendants
and/or each of them) to a repair or
restore the money or property or any
part thereof respectively with interest
at such rate, or pay compensation in
respect of the breach of Section 298 as
the court thinks just."

The Plaintiff effectively seeks relief in these
proceedings against the Defendants pursuant to
Sections 297(a) and 298 of the Companies Act, 1963.
However, under Order 74 rules 49 and 136 of the Rules
of the Superior Courts, an application for relief
pursuant to those sections ought to be brought by way
of originating Notice of Motion supported by
affidavit(s) rather than Plenary Summons. Accordingly, it was submitted by all the Defendants that these proceedings are improperly constituted and
should be struck out on that basis.

In summary, the submissions of the Defendants are

that the proceedings are a nullity, not having been
issued in accordance with the Rules of the Superior Courts and that the Court has no power under Order 124 r.1 or otherwise to cure that nullity.
Alternatively, if the Court decides that the
proceedings are irregular rather than a nullity, then
it was submitted that the proceedings should be struck out because of the deliberate decision of the Plaintiff to adopt the wrong procedure, a decision
which has prejudiced the Defendants.

I am satisfied and find as a fact, on a consideration of the case as a whole and on the submissions made in court, that as at the time the various applications
were made concerning the summons neither Counsel, the
Court Registrar or the particular Judge adverted to the specific provisions of the rules and that this was a matter of oversight, not a matter of deliberate
choice to place the Defendants or any of them at a disadvantage. There was certainly no mala fides of any description in this regard.

Factual Background:
The First and Second Defendants were at all material
times the Directors of Cedarlease Limited ("the Company"). All reliefs sought by the Plaintiff in these proceedings as against these Defendants are
pursuant to Sections 297(a) and 298 of the Companies
Act, 1963 in respect of alleged reckless trading and

misfeasance respectively, and the relief sought against the Seventh Defendant is of the like character.

The Company was one which was established in order to implement a VAT avoidance scheme (the details of the background of the scheme are set out in a letter
dated 10th June 2005 from Eugene F Collins, Solicitors, to Lennon Heather & Company, Solicitors, exhibited as part of "TL" of the affidavit of Terry Leggett of 12th June 2006). The details of this complex and elaborate scheme are set out in extenso
at paragraphs 11-19 of the Statement of Claim of 25th May 2006.

The scheme was challenged by HM Custom & Excise and
VAT assessments were raised by it which were not
discharged. The gravamen of the Plaintiff's claim is that the Company allowed payments to be made to Brog Leasing Limited, another company which participated
in the scheme in February and September 2000 in the
combined sum of Stg£1,326,100 in circumstances where
the Defendants knew or ought to have known of a possible liability on the part of the Company to pay value added tax to HM Customs & Excise.

It is common case that the instant proceedings were issued by Plenary Summons which issued on 29th April 2005 but which was not served on the First and Second

Defendants' solicitors until about 18th April 2006,
and other Defendants were not served when the summons
issued either. It is equally clear from the documentation that the decision to institute
proceedings by way of Plenary Summons was a conscious one, which was made in an attempt to stop time running under the Statute of Limitations. I am
satisfied that such was the purpose of the issue of the summons, but I am equally satisfied that there was no intendment to disadvantage the Defendants or
any of them by reason of choosing the issue of Plenary Summons rather than a Notice of Motion grounded upon affidavit. In my judgment proceedings
sanctioned by the court in accordance with the exact terms of the rule would be proceedings that would have had the self same effect as inhibiting the
effect of the Statute of Limitations.

I am satisfied on the facts as disclosed to me in this case that there was no improper motive in the withholding of serving of the proceedings until all the requisite evidence was available to the Plaintiff to issue and serve the Statement of Claim. Indeed,
the very proprietary of this conduct by the Plaintiff is illustrated by their omitting from the Statement of Claim certain charges which presumably on the
state of the evidence as they then knew it at the time they first applied to Ms. Justice Finlay Geoghegan on 29th April 2005 existed.

The relevant provisions of the Rules:
Order 74 r.49 of the Rules of the Superior Courts
provides:-
"An application made to the Court
under:
(a) Section 184;
(b) Subsections (2) of Section 297;
(c) Section 298, or
(d) subsection (2) of Section 391,
shall be made by motion in which shall
be stated the nature of the declaration
or order for which application is made
and the grounds of the application, a
notice of such motion, together with a
copy of every report and affidavit upon
which it is intended to be grounded,
shall be served personally on every
person against whom an order is sought,
not less than seven clear days before
the date named therein for hearing the
application. Where the application is
made by the Official Liquidator, he may
make a report to the Court stating any
relevant facts and information which he
shall verify by affidavit. Where an
application is made by any other
person, it shall be supported by
affidavit to be filed by him. The
Court may give such directions as to
the procedure for the hearing of the
application and may direct that the
date fixed for the hearing shall be
advertised in such form as the Court
may approve, and on the hearing the
Court may allow any person interested
to appear either by counsel or in
person to cross-examine any of the
witnesses giving evidence or to give
evidence."

Similarly Order 74 r.136 as amended, provides:-

"In any winding up, an application
under Sections 297(A), 298 ... of the
Companies Act 1963 [or under various
sections] shall in the case of a
winding up by the Court, be made by
motion on notice and in case of a
voluntary winding up by originating
Notice of Motion."

Order 124 r.1 of the Rules of the Superior Courts
provides as follows:-
"Non-compliance with these rules shall
not render any proceedings void unless
the Court shall so direct, but such
proceedings may be set aside either
wholly or in part as irregular or
amended, or otherwise dealt with in
such manner and upon such terms as the
Court shall think fit."

In the course of his submissions to the Court,
Mr. Barniville drew my attention, as did Mr. Murphy,
to the provisions of Order 70 Rule 1 of the English
Rules of the Superior Courts which was until 1964
almost in virtually identical terms to our rule. The English authorities in relation to Order 70 Rule 1 have held that there is a distinction which endures
between proceedings which are a nullity, and those
which are merely irregular. If proceedings are a
nullity, then the Court has no power to cure the defect in the proceedings.
The authorities were comprehensively reviewed in
Re Prichard (deceased) [1963] Ch. 502; [1963) 1 AER

387 where the distinction between proceedings which
were a nullity and those which were merely irregular
was considered in the context of a defect in the commencement of proceedings. The effect of the majority decision in Prichard was in effect reversed
in its result by the ameliorating provisions of new
rules which abolished the distinction between a nullity and an irregularity. I have considered the decision in Prichard as reported in the official
reports and it is little wonder that the rules making
committee brought in amended rules in the light of
the majority decision of the Court of Appeal in Prichard. Neither Prichard nor the rules of the English courts are in any way binding upon the courts
in this jurisdiction and, in my judgment, the amended rules in England reflected the necessity of spelling out in the rules that which was clearly inferred as
existing in the rules then extant as perceived by Denning MR. Rigidity of interpretation of the English rules as they stood before their alteration
subsequent to Prichard does not commend itself to me in terms of logic or of justice. Notwithstanding the clear distinction between Croke v Waterford Crystal &
Anor [2005] 2 IR 383, which dealt with an amendment
of Pleadings, the more liberal approach of our courts
to the interpretation of the Rules seems to me to be
the appropriate course to follow and is wholly
consistent with the approach of Denning MR in the Prichard case.

Mr. Murphy for the Defendant Cleminson drew my attention and made a considerable analysis of the difference between the rules as applicable in this
jurisdiction and the new rules brought into effect in
England in the 1960s. His submission was that the
Irish rules consciously adopted a particular procedure with regard to the four types of
proceedings in question and urged that the failure of
the Applicant/Plaintiff in the instant case to act timeously is fatal. All Defendants contended that the rules as formulated in this jurisdiction
obligated the Plaintiff to make available to them at the time of the application to the Court for leave to issue the proceedings not only the evidence, but all
supporting documentation upon which the Plaintiff
would seek to rely in the event of the proceedings going to hearing. In fact, what has occurred in the instant case is that some of the information was made
available at different stages to different Defendants as the Plaintiff became more appraised of matters.

Mr. Black's affidavit sworn on behalf of the Defendants (represented by Mr. Barniville) sworn on 2nd June 2006 puts the case for his clients as
follows:-
"6. It is important to emphasise that
the objection raised as to the form of
the proceedings is not simply technical
in nature as the Third, Fourth, Fifth
and Sixth Named Defendants have been
prejudiced by the failure of the

Plaintiff to adopt the correct
procedure. Under Order 74 r. 49 an
applicant for relief is required to
serve, in addition to the Notice of
Motion, a copy of every report and affidavit upon which it is intended to
ground the application. Therefore, if the plaintiff had proceeded by means of
the correct procedure, the Third, Fourth, Fifth and Sixth Named
Defendants would have the benefit of detailed reports and/or affidavits
setting out the nature of the case made
against them. In the absence of that
grounding documentation, it is difficult for me to advise any clients
in relation to the application or to brief Counsel adequately.

7. Insofar as it might be suggested
that the Statement of Claim served
herein constitutes a substitute for
such reports or affidavits required to
be served under Order 74 r.49, I say
and believe that it is evidence that
its service does not ameliorate the
prejudice to my clients. Firstly, it
does not contain the level of detail
which would be required in an affidavit. Secondly, it does not
exhibit the documents upon which the Plaintiff intends to rely. Thirdly,
the facts stated therein are not
verified by affidavit. These procedural disadvantages have been
exacerbated by the refusal of the
Plaintiff's solicitors to furnish details of the claim to be made, the
status of the liquidation, the funding
of same and the procedural history of the proceedings and the papers filed in
that regard."

There has been protracted correspondence between the Plaintiff's solicitors and the solicitors for the various other parties over the period of time and I
am satisfied that the Liquidator is prepared to verify his claim as against the Defendants on affidavit (paragraph 24 of the affidavit of Hugh Kane

filed on 19th June 2006).

The argument advanced by the Defendants is that if
the documentation had been given to the Defendants in
the manner and at the time which is contended it
ought to have been given to them, they could have
sought to move the Court to dismiss the case on the
basis of either failing to disclose a prima facie
case or an inadequacy of a case to proceed, or to
have sought directions and the assistance of the Court in their Defence. In itself it appears principally to consider directions as to cross-examination and, as was submitted by Mr. McCann on behalf of the Plaintiff in the instant case, the
matters in issue in these proceedings, whether they had been originated by Notice of Motion grounded on affidavit or, as they were, by way of Plenary Summons
and Statement of Claim would inevitably lead to a situation in which the matter would require to be dealt with by way of oral hearing. There was
considerable force in his argument that if the affidavits that might have been filed had the matter proceeded in strict and absolute accordance with the
rules arisen, that as a matter of probability and, indeed, inevitability is that the Court would have called upon the parties to formulate Points of Claim
and Points of Defence. Whereas, by proceeding as has been done heretofore, the Statement of Claim is extant and the Defendants can plead to such in their

Defences. I reject, however, the submission made on
behalf of the Plaintiff that by entering an
appearance, particularly in respect of Mr. Barniville's clients, that a conditional
appearance in any way precludes them from raising the
points they did in these proceedings by way of motion before me. The Defendants in their various guises have taken issue with the Plaintiff as to the
correctness of the procedure almost from the
beginning of their correspondence. The entry of an
appearance merely acknowledges the jurisdiction of
the Court, not necessarily the correctness of the procedure adopted by the Plaintiff.

It was submitted on behalf of the Defendant Cleminson
that the drafters of Rule 49, though following the general format of Rule 68 in the United Kingdom, consciously departed from the procedure in the United
Kingdom model and placed very clear obligations upon
the movers of applications under the relevant sections that they have their evidence in place before commencing proceedings. It is contended that
this obligation, though clear, is in no way burdensome given the investigative function and powers in liquidations. In the instant case, I am
unable to accept that submission because it seems to
me that in many cases the evidence in its totality may not be available before proceedings are commenced. Furthermore, it is clear from the

affidavits filed on behalf of the Plaintiff in this
case that there were continuing and ongoing
investigations made subsequent to the first application made to the Court for leave to issue proceedings and that such when completed indicated to
the Plaintiff that certain aspects of the claim originally intended to be advanced could not be sustained and therefore ought not to be made and,
accordingly, were the subject of the amended summons
and formulated correctly in the Statement of Claim. The condition under the rule is for liquidators to obtain leave of the Court before proceeding against
persons such as the Defendants in the circumstances that have arisen. The Court must be satisfied, and clearly was, that there was a sufficiency of
information before it to enable the proceedings to issue (albeit not in precisely the form envisaged by the rules).

The Irish courts do not appear to have discussed the
distinction between nullity and irregularity to the same extent as appears from the reported cases in England. Two cases in particular were drawn to my
attention. In Meares v Connolly [1930] I.R. 333
proceedings seeking the recovery of premises founded on a notice to quit were commenced by Summary Summons in circumstances where a Plenary Summons was the appropriate originating procedure. O'Byrne J. came to the conclusion:-

"That these proceedings have been
brought in a form that is not only not
authorised by the rules but is
expressly prohibited by them."

In the instant case there is a clear direction in the rules that the proceedings be taken by way of motion grounded on affidavit, but there is no express
prohibition against proceedings being issued by
Plenary Summons and, in my view, this is a clearly distinguishable case from Meares. The other case drawn to my attention by the Defendants was Bank of
Ireland v Lady Leesa (Ireland) Limited [1992] 1 I.R. 404 where proceedings were brought by way of Summary Summons for recovery of land for non-payment
of rent in circumstances where this procedure was erroneous. In the course of his judgment at p.410 O'Hanlon J. by reference to the earlier case of
Meares v Connolly stated as follows:-
"It was held that procedure by Summary
Summons was not applicable in an action
for the recovery of premises founded on
a notice to quit, where the right to
give the notice depends upon the
happening of a contingency. It was
further held that the court had no
power to amend the Summary Summons and
allow the action to proceed as if
commenced by Plenary Summons and,
accordingly, the case was struck out."

The Meares case and the Bank of Ireland case were
considered by Finnegan P. (as he then was) in the
course of his judgment "In the Matter of the Proceeds

of Crime Act 1996: McKenna v JG, GG, DG & TG"
unreported 30th January 2006. The President observes at p.9 of the transcript of the unreported judgment that in those cases Order 124 does not appear to have
been considered. It seems to me that is, altogether
from any other observations made in the course of his
judgment by Finnegan P., a matter that clearly distinguishes Meares and Bank of Ireland from the instant case where the provisions of Order 124 were
put before the Court and urged upon it by the Plaintiff to be applied notwithstanding the submissions of the Defendants. I do not consider
myself in any way departing from established case law in situations where; (a) the subject matter of the litigation is radically different, and (b) where
specific orders of the rules were not considered. Furthermore, there is a differences between the instant case where the widest possible inquiry can be
made under plenary proceedings and those in the case
of both Meares and the Bank of Ireland where a restricted form of procedure was being invoked such as might preclude the Defendant in each case from
advancing such evidence as the proceedings of wider scope would have enabled. While it is undoubtedly true, as Mr. Barniville submitted, that under
Order 74 Rules 49 and 136 an application for relief
under the sections is directed to be brought by way of originating Notice of Motion and no express provision is made for such relief to be sought by way

of Plenary Summons, in my judgment, such is directory and not exclusively mandatory and, if mandatory, is not exclusively so.

McDonnell v Dun Laoghaire Corporation [1991] ILRM 301
although dealing with a completely different matter, i.e. the Planning Code, enabled Costello P. to come to a view that notwithstanding the provisions of the
Planning Acts laying down a procedure to be followed by applicants seeking relief under those Acts (i.e. Judicial Review) that did not preclude a person from
issuing proceedings by way of Plenary Summons, though the consequence of so doing would delimit the entitlements operating such procedural mechanism to
their restraints or limitations of Order 84 Rule 21. In my judgment, it was permissible, if undesirable, in the instant case that proceedings were instituted
by way of Plenary Summons rather than by Notice of Motion grounded on affidavit as provided for in the rules.

Discretion under Order 124 Rule 1: The Defendants submitted that if the Court were to
hold that the proceedings were not a nullity and void but merely irregular and voidable, then the Court should exercise its discretion to strike out the
proceedings. It is submitted that in the instant case the Defendants were entitled to that relief ex debito justitiae and this point was urged with

particular emphasis by Mr. Kennedy in his able
submissions to the Court. In this regard the
following factors were relied upon:-
"1. The incorrect procedure was not
due to inadvertence or a mistake but
was a calculated decision taken by the
Plaintiff in order to obtain a
procedural advantage which was not
brought to the attention of, still less
sanctioned, by the Court, and
2. The Defendants have been prejudiced
by the failure to adopt the correct
procedure."

It is, as was correctly submitted by the Defendants,
a case in which Plenary Summons was issued in order
to avoid a substantial portion of the proceedings becoming statute barred, though I do not think it was absolutely essential to follow that course as early
indicated in this judgment. Accordingly, even though there may have been inadvertence as to the correct piece of legal machinery to apply, there was not an
inadvertence in seeking to have the benefits or, more
correctly, avoiding the disadvantages of the Statute of Limitations. In my judgment, as already determined, it was a matter of inadvertence that the
incorrect procedure was adopted but if it was a mistake, and mistake it was, was that step or mistake of a calculated decision in order not to obtain a
procedural advantage but merely to stop a statute running? It is clear from the documentation that the

mistake was not brought to the attention of the Court, nor did the Court alert itself or its official alert him/her self to the fact that it was a mistaken
form of procedure. The fact that investigations might have been incomplete did not and would not mean that the alleged impropriety or illegality or
non-compliance with the law by the Defendants would alter. What would alter is the amount of evidence that the Plaintiff could place before the Court if
the matter had been called on immediately at that time or very shortly thereafter. In my judgment, as a matter of probability there was an sufficiency of
evidence certainly to warrant the issue of the proceedings even if all the evidence had not been obtained and analysed by the Plaintiff.

The wrong, if wrong it be, that was committed by the Defendants was that alleged in the proceedings and such had all occurred before the appointment of the
Liquidator. Some weight was put upon the fact that
HM Customs & Excise had engaged the firm of solicitors who came to act for the Liquidator and, accordingly, they ought to have been in a position to
advance matters more fully and properly from the outset. In my judgment, this is a purely fortuitous circumstance and ought not to affect the validity or
proprietary of the step taken by the Liquidator in his capacity as such. The Plaintiff was in a position to institute proceedings using the more

correct procedure within the limitation period, but as a matter of probability on the basis of the incomplete investigation should have invoked the assistance of the Court not to refrain from pursuing the Defendants until the correct information in all
its particulars was available to him. I do not see
the Plaintiff as having circumvented the statutory protection afforded to potential defendants by the Statute of Limitations when in fact the range of
inquiry raised in the Statement of Claim is less than
that which emerged in the summons. There might be some force in this argument if new causes of action or new allegations were introduced at the Statement
of Claim stage. It was suggested at the Bar that, in the event that
the proceedings are not a nullity, the Defendants are
still entitled ex debito justitiae to an order setting aside the summons under Order 124, having regard to the nature of the defect, i.e. that insofar
as the remedy sought by the Defendants (and particularly the First and Second Defendant) it is discretionary and can only be exercised in one way:
by granting the order sought. In the course of his
judgment in Prichard's case UpJohn L.J. said that the
phrase ex debito justitiae means that the Defendant
is entitled as a matter of right to have the proceedings set aside. The remarks of Upjohn L.J. are referable to a context of a settled practice (see

page 521 of the Prichard's case). In the instant case there is no settled practice in this area of law in this jurisdiction.

In the instant case the decision to proceed by way of
summons had only one conscious reason, i.e. to prevent the claim or claims of the Plaintiff from being barred by the Statute of Limitations (which
could, as I have already observed, been achieved as readily by the issuing of proceedings by way of Notice of Motion had such been adverted to). The
Court was not informed as to the correct procedure,
through omission and not by a deliberate act of commission.

The Defendants submitted that if the Court were minded to approach the non-compliance by the Plaintiff as a technicality regard should be had to
the fact that on several occasions upon which the
Court was moved ex parte to make orders in his favour
no effort to correct the error was made by the Plaintiff and there was no excusing significance in several orders having been made in the Plaintiff's
favour. In my judgment the probabilities were that
once leave had been given to issue proceedings by Ms. Justice Finlay Geoghegan no one ever afterwards (until the issue was raised by the Defendants that
led to these proceedings) considered whether the proceedings indicated that the rules had been

followed.

The question of the prejudice stated to have been suffered by the Defendants was the common complaintof all of them. While the provisions of the rules
are designed so as to fully appraise those against whom complaint is made, at the time the Court is moved to sanction the issuing of proceedings, so as
to enable them to know from the outset what the nature and extent of the case they may have to meet: complex and involved incomplete examinations must
from time to time involve the supplementing of such
information. Furthermore, on occasion complaints made at the time the Court grants leave to issue proceedings are deleted or 'dropped' when more
fulsome information becomes available - this is as possible whether the proceedings are by way of a Notice of Motion grounded on affidavit or Plenary
Summons and Statement of Claim.

In my judgment this is not a case of Defendants who do not fully understand the case being made against them. Furthermore they have much but not all of the
documentation upon which the Liquidator relies, but they certainly have not had it timeously. They are entitled to all the documentation as provided for in
the Rules and these proceedings will be stayed until the undertaking given to the Court by Mr. McCann S.C. in accord with the averments of paragraph 24 of Mr.

Kane's affidavit sworn on 19th June 2006 is complied with. Furthermore no procedural advantage has in anyway accrued to the Plaintiff by the issue of plenary
proceedings even before these motions where issued by the Defendants (or indeed since) and any prejudice perceived by the Defendants lack reality in my judgment.

I am satisfied and find as a fact that while the Plaintiff was sufficiently acquainted with the affairs of the company as to seek leave of the Court
to issue the proceedings, he was not so thoroughly acquainted, as evidenced by his requirement to have the proceedings amended and to delete some complaints
made in the first instance before Ms. Justice Finlay Geoghegan. This case is clearly distinguishable from Geoch's case (1872) 7 Ch. App. 207, Adams-v-Director
of Public Prosecutions [2001] 2 ILRM 401, where Kelly J. at p.417 very properly expressed concern in a case where counsel who considered, inter alia, the
relevant Rules and then decided they were not relevant and did not in such circumstances draw their attention to the judge hearing the matter ex parte.
There is a clear distinction between innocent
inadvertence and deliberation. Neither is the case of Re Timberland Limited [1997] 2 ACLR 259 applicable, not only on its facts but on the
principles upon which that such case was decided. The inadvertence of counsel, court official or the

Court itself to a specific detailed provision of the
Rules is not to be in any way equated with the failure in duty of uberrimae fidei on an issue of fact applicable to any ex parte applications to the Court.

The defects in the Plaintiff's proceedings are purely
procedural in nature and do not go to jurisdiction.
The correct approach to the instant case is, in my
judgment, that indicated in the approach of Denning
MR in his minority judgment in Re Prichard (deceased)
[1963] CH. 502 at 513, when he stated:-

"If a plaintiff has commenced a known
genuine case before the time limit has
expired, but has made a technical slip
in his procedure, then he will be
allowed to rectify the defect if it can
be done without injustice to the
defendant."

Again at p.516:-
"When an officer of the court itself
makes a mistake, the consequences
should not be visited on the
unfortunate litigant, but they should
be remedied by court itself."

While those factors are not identical to the facts of the instant case the underlying reasoning behind them in my judgment is applicable.

The curial part of the original order of 29th April 2005 provides:
"IT IS ORDERED pursuant to section 231
of the Companies Act 1963 that the
official Liquidator be and is hereby at
liberty to issue proceedings against
Patrick Cornelius Cremin, Alex Cremin,
John Sinclair Williams, Justin Sinclair
Williams and Gareth Sinclair Williams
in the form of the draft proceedings
produced to the Court or as amended as
advised by Counsel and that service of
the proceedings be subject to further
direction of the Court."

In my judgment no injustice will be done to the Defendants by the Court now ordering that these proceedings be stayed until the Plaintiff do provide to the Defendants within a given limited time the documentation envisaged and provided for under Order
74 rules 49 and 136 not already provided to them.
Such an approach in my judgment is in accord with the curative provisions of Order 124 r.1 and the perceived necessary directions in the curial part of
the original order made in these proceedings.

In coming to this conclusion I have given special consideration to Mr. Barniville's submission that had the exact procedure in the Rules been followed by his
clients his clients might have decided not to hand
over certain files at a date by which the proceedings were sanctioned but not served. Had such occurred I apprehend as a matter of probability that the Plaintiff would have sought the assistance of the

Court to secure them, most especially if they could in the widest sense be categorised as company records or company property. In the events the Order I
propose redresses any possible advantage the Defendants might perceive has been gained by the Plaintiff. This is not a case in which a Plaintiff
had no reasonable grounds to justify what he had done in seeking the documents in the context of where he had not served the proceedings (Cavern Systems
Limited-v-Clontarf Residents Association [1984] 1ILRM 24 is clearly distinguishable). I am unable to accept as warranted by the evidence the submission
that the Plaintiff exploited the ignorance of the Defendants as to the existence of the proceedings to induce or cause them to hand over files to him. It
is clear from the evidence that when the Plaintiff was fully informed he very properly, no doubt on advice, decided to delete unsustainable claims first made on incomplete information.
END OF JUDGMENT