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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Ancorde Ltd & Anor -v- Horgan & Ors [2013] IEHC 266 (06 June 2013)
URL: http://www.bailii.org/ie/cases/IEHC/2013/H266.html
Cite as: [2013] IEHC 266
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Judgment Title: Ancorde Limited & Anor -v- Horgan & Ors Neutral Citation: [2013] IEHC 266 High Court Record Number: 2012 12487 P & 2012 12606 P Date of Delivery: 06/06/2013 Court: High Court Composition of Court: Judgment by: Laffoy J. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 266 THE HIGH COURT [2012 No. 12487P and 2012 No. 12606P] BETWEEN ANCORDE LIMITED AND BARRY HARTE PLAINTIFFS AND
MIRANDA HORGAN, COLLETTE SWEETNAM AND ASHWOOD INVESTMENTS LIMITED DEFENDANTS AND (BY ORDER OF THE COURT) –
BARRY HARTE, DAMIEN RYAN AND ANCORDE LIMITED DEFENDANTS TO THE COUNTERCLAIM Judgment of Ms. Justice Laffoy delivered on 6th day of June, 2013. The proceedings and the application
(b) proceedings between the Company and the Horgan Parties, as plaintiffs, and the Harte Parties and Damien Ryan, as defendants (Record No. 2012/12606P). 2. Before the Injunctions Judgment was delivered, by notice of motion dated 17th April, 2013, the defendants in the consolidated proceedings, that is to say, the Horgan Parties and the Company had sought the following reliefs:
(b) an order discharging the defendants, that is to say, the Horgan Parties and the Company “from their interlocutory undertakings to the Court” on the same grounds. 3. In the affidavit grounding that application, which was sworn on 12th April, 2013, Ms. Horgan averred that a very serious matter came to light for the first time on 10th April, 2012, being the surreptitious and secret recording by the Harte Parties of the meeting of the board of directors of the Company which took place on 6th November, 2012. Arising from replies dated 27th March, 2013 by the plaintiffs’ solicitors to a notice for particulars delivered by the defendants’ solicitors, on 10th April, 2012 the plaintiffs’ solicitors sent by e-mail a document transcribed by Gwen Malone Stenography Services Limited, which was represented as being the “minutes” of the meeting on 6th November, 2012. In fact, it was a transcript or, as the Horgan Parties contend, a partial transcript of a recording made of the meeting on a mobile phone. Ms. Horgan’s position is that there was deliberate subterfuge and concealment, a lack of candour, and a failure to make full and frank disclosure of all material matters to the Court in the course of the hearing of the applications for interlocutory injunctive relief which resulted in a deliberate misleading of the Court and further that a major breach of trust occurred as a result of the secret recording. 4. Mr. Harte’s response, in his replying affidavit sworn on 29th April, 2013, was that the recording was made by Mr. Hilary Haydon, who was present at the meeting on 6th November, 2012 as “Financial Advisor” to the Company and that he, Mr. Harte, was unaware that the recording was being made and had only recently been notified about it. Mr. Harte then, in what only can be viewed as an unproductive “tit for tat” response, asserted his belief that Ms. Horgan had made a recording of the meeting on 3rd December, 2012, which is referred to in some detail in the Injunctions Judgment, although professing that he was not raising any objection to that having occurred. I am quite satisfied on the basis of Ms. Horgan’s further affidavit sworn on 8th May, 2013, which is corroborated by an affidavit sworn by Ms. Sweetnam on 7th May, 2013, that Ms. Horgan did not make a recording of the meeting of 6th December, 2012. 5. In her grounding affidavit sworn on 12th April, 2013, Ms. Horgan outlined matters which the transcript which she had received of the recording of the meeting on 6th November, 2012 at that stage revealed and which she considered to be of significance. The general thrust of the matters she has averred to is that they corroborate her account of what happened at the meeting on 6th November, 2012 and what was happening in relation to the affair of the Company at that time. To take one example, she has averred that the “repeated claims” by Mr. Harte in his affidavits that Mr. Haydon was a mere “financial advisor” are “exploded” by the transcript and that the transcript demonstrates that Mr. Harte did not speak for, or represent, Ancorde but that it was Mr. Haydon who at all times spoke for and represented Ancorde. It is reasonable to anticipate that the existence of the transcript and of the further evidence in relation to what transpired at the meeting of 6th November, 2012 averred to by Ms. Horgan in her second affidavit sworn on 8th May, 2013 will be of significance in resolving evidential conflicts which will inevitably arise at the hearing of the substantive consolidated proceedings, including a conflict which I flagged in the Injunctions Judgment, that is to say, as to who was the driving force in Ancorde, which is likely to have a bearing on the broader issues in the consolidated proceedings. However, as regards the specific issues with which the Court was concerned on the hearing of the applications for interlocutory injunctive relief, which I referred to as the shareholder issue and the directorship issue and also the issue in relation to the amended Articles of Association of the Company, having regard to the relevant legal principles applicable, that evidence would not be of relevance to the issues if it had been adduced on the hearing of the applications for interlocutory injunctive relief. Submissions on the legal principles applicable
1. The materiality of the facts not disclosed. 2. The extent to which it may be said that the plaintiff is culpable in respect of a failure to disclose. A deliberate misleading of the court is likely to weigh more heavily in favour of the discretion being exercised against the continuance of an injunction than an innocent omission. There are obviously intermediate cases where the court may not be satisfied that there was a deliberate attempt to mislead but that the plaintiff was, nonetheless, significantly culpable in failing to disclose. 3. The overall circumstances of the case which lead to the application in the first place.”
8. The response of counsel for the Horgan Parties was that when the Harte Parties’ application for interlocutory relief first came before the Court on 13th December, 2012, the Horgan Parties gave an undertaking to the Court, which I have quoted in the Injunctions Judgment, and that the undertaking was, in substance, similar to the Court making an ex parte order. I do not necessarily think that that is a correct analogy in this case because, at the time the undertaking was given, the Horgan Parties had an opportunity to consider the affidavit evidence put before the Court by the Harte Parties and, additionally, a replying affidavit had been sworn by Ms. Horgan on 12th December, 2012. However, I do not think it would be proper to determine the issue now before the Court on that ground alone. 9. Counsel for the Harte Parties acknowledged that a factor which the Court has to have regard to in determining whether or not to exercise an equitable discretionary remedy is the conduct of the party invoking the jurisdiction of the Court, citing the commentary in Delany on Equity and the Law of Trusts in Ireland, 5th Ed. (at p. 521). As is pointed out by Delany, in this regard, one of the equitable maxims which comes into play is “he who comes to equity must come with clean hands”. However, the court will decline to intervene on the basis of the “clean hands” principle unless there is a sufficient connection between the inequitable conduct and the subject matter of the dispute and, in this connection, Delany quotes the following comment from Scrutton L.J. in Moody v. Cox [1917] 2 Ch. 71 (at p. 87 – 88):
10. In the Injunctions Judgment, it was necessary to pare down the reliefs sought on the two applications for interlocutory relief before the Court for the purposes of identifying the issues the Court had to address on those applications and, as I have stated, there were three issues: the directorship issue; the shareholder issue; and the issue in relation to the amended Articles of Association of the Company. Although there was evidence before the Court as to what happened at the meeting of the board of directors of the Company on 6th November, 2012, I concluded that what happened at that meeting was not material to the Court’s function in relation to the three issues which were raised on the interlocutory applications. It is for that reason that, in summarising the core factual underlay which had given rise to those issues, I did not include in the chronology the meeting of 6th November, 2012. 11. On the application by the Harte Parties for interlocutory injunctive relief, the Court’s function was to establish whether a fair issue had been raised as to the shareholder issue and the directorship issue, the exercise of which involved a low threshold. I was satisfied that the threshold had been met by reference to what happened from between 15th November, 2012 and the initiation of the proceedings by the Harte Parties. That conclusion would not have been affected, even if the evidence which has been adduced on this application had been adduced on the hearing of the applications for interlocutory relief. In short, in my view, what happened at the meeting on 6th November, 2012, applying the test of materiality indicated by Clarke J. in Bambrick v Cobley, could not reasonably be regarded as material from an objective perspective in determining whether there was a fair issue to be tried in relation to the shareholder issue or the directorship issue, both of which issues were triggered by the action of Ms. Sweetnam’s solicitor in serving the notice of 15th November, 2012. It was that action, in which the persons who attended the meeting on 6th November, 2012 did not participate, coupled with what happened subsequently, which had an immediate and necessary relation to the injunctive relief which Mr. Harte sought. 12. Having heard the applications for interlocutory relief but not having delivered judgment on them before this application was made, I considered that the proper course was to determine the applications for interlocutory relief on the evidence before the Court at the hearing. If, on the evidence adduced on this application I had come to the conclusion that there was a material non-disclosure on the part of the Harte Parties, which breached the equitable “clean hands” maxim, it would have been appropriate to consider discharging the interlocutory orders. However, I am satisfied that there was no such non-disclosure which was material to and connected with the decisions which I made. Of course, that is not to say, as I have made clear earlier, that the evidence which has emerged will not be significant on the hearing of the substantive consolidated action. 13. Accordingly, the defendants’ application will be dismissed.
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