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Cite as: Bula Holdings & ors -v- Roche & ors [2009 IESC 36

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Judgment Title: Bula Holdings & ors -v- Roche & ors

Neutral Citation: [2009 IESC 36

Supreme Court Record Number: 364/08

High Court Record Number: 2007 192p

Date of Delivery: 03 April 2009

Court: Supreme Court

Composition of Court: Denham J., Kearns J., McGovern J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Kearns J.	Appeal dismissed - affirm High Court Order	Denham J., McGovern J.

Outcome: Dismiss

Notes on Memo: Refuse Notice of Motion

THE SUPREME COURT

Denham J.
Kearns J.
McGovern J.

[S.C. No. 364 of 2008]

BETWEEN

BULA HOLDINGS, BULA TRUST, LOIRE INVESTMENTS,
BULA LIMITED, MICHAEL J. WYMES, MICHAEL T. WYMES
AND RICHARD F. WOOD

PLAINTIFFS

AND

THOMAS J. ROCHE, CRINDLE INVESTMENTS,
THOMAS J. ROCHE AND FRANCIS PLUNKETT DILLON

DEFENDANTS

JUDGMENT delivered by Mr. Justice Kearns on the 3rd day of April, 2009

This is an application brought on behalf of the plaintiffs seeking an extension of time for the service of a Notice of Appeal from the judgment of the High Court (Edwards J.) delivered on 6th May, 2008 which dismissed the above entitled proceedings both on the grounds that the same had no reasonable prospects of success and were bound to fail and further on the basis that the said proceedings represented an attempt to abuse the process of the court. The order of the court was perfected on 11th September, 2008.

It is clear from the affidavit of Gregory Ryan sworn herein and the exhibits therein contained firstly, that the plaintiffs had formed a bona fide intention to appeal from the judgment of Edwards J. and, secondly, that the failure to serve and file Notice of Appeal arose as a result of error on the part of the plaintiffs’ solicitor who was away on holiday at the time the order was perfected. Having discovered the error, Mr. Ryan wrote to the defendants’ solicitors seeking consent for the late filing and service of the Notice of Appeal but by letter dated 4th November, 2008 such consent was refused. As a result the Notice of Motion presently before the Court issued on 7th November, 2008.

There is no dispute between the parties as to the relevant legal conditions applicable where time has expired for the service of a Notice of Appeal and an extension of time is then sought for filing such notice. These conditions were set out by this Court in Eire Continental Trading Co. Ltd., v. Clonmel Foods Ltd. [1955] IR 170 and are as follows:-

1. The applicant must show that he had a bona fide intention to appeal formed within the permitted time.

2. He must show the existence of something like a mistake, such as occurred in the instant case on the part of the plaintiffs’ solicitor.

3. He must establish that an arguable ground of appeal exists.

As was stated by Lavery J. at p.173 of his judgment:-

“In my opinion these three conditions are proper matters for the consideration of the Court in determining whether time should be extended but they must be considered in relation to all the circumstances of the particular case. In the words of Sir Wilfred Greene M.R., in Gatti v. Shoosmith [1939] 1 CH 841:-

"The discretion of the Court being, as I conceive it, a perfectly free one, the only question is whether, upon the facts of this particular case, that discretion should be exercised."”

The Court is satisfied that the first two conditions have been met in the instant case.

I can therefore move directly to the central point raised by Mr. Wymes in the current proceedings. It is the plaintiffs’ contention that certain final judgments and orders, including costs orders made by the High Court and this Court in two sets of proceedings commenced by Crindle Investments, should be set aside. The first of the said proceedings were commenced by Crindle pursuant to s.205 of the Companies Act, 1963 in January, 1993 and re-entered in November, 1993, January, 1994 and in March, 1997. The other set of proceedings were proceedings commenced by Crindle pursuant to s.205 of the Act of 1963 in March, 1997. In the course of those proceedings a number of judgments were delivered and orders made by the High Court and by this Court which said judgments and orders found against the interests represented by both Mr. Wymes and Bula. By order of the High Court dated 2nd August, 2002, the plaintiffs herein were ordered to pay to Crindle the costs reserved by orders made in the 1993 s.205 proceedings when taxed and ascertained. Those costs were duly taxed in favour of the defendants in the sum of €462,642.98. Those costs have not been paid or discharged by Mr. Wymes and the sum now due on foot of the order for costs is approximately €550,000.

In their pleadings in the present litigation, the plaintiffs assert a multiplicity of grounds for attempting to set aside the various judgments and orders of the High Court and this Court, on grounds including fraud, misrepresentation, conspiracy, negligence, breach of duty, unlawful interference with the interests of the plaintiffs and obstruction and/or perversion of the course of justice and perjury. Amongst the allegations raised by Mr. Wymes is one to the effect that the court was misled by the defendants and induced into error as a result of false averments made by or on behalf of Crindle by Thomas J Roche. Thomas J. Roche swore affidavits on 5th March, 1997 and 10th March, 1997 for the purpose of verifying the facts set forth in the petition in the 1997 s.205 proceedings. The ownership of Crindle was confirmed as follows on behalf of the petitioner:-

“The petitioner is an unlimited company which has an issued share capital of Ir.£11,000 divided into 1,100,000 A Ordinary Shares of 1p each. The entire issued share capital of the petitioner is as and from 13th January, 1995, beneficially owned by Mr. Roche Jnr., through a structure involving a US limited partnership and US limited liability corporations.”

Mr. Roche verified these matters in affidavits sworn by him on 5th March, 1997 and 10th March, 1997.

The purported evidential basis upon which the plaintiffs rest their allegations may be summarised as follows:-

(i) A partner in Arthur Cox (Stephen Hegarty) acted in such a way at a meeting on 15th January, 2001 as to give the impression that Crindle had a non-Roche beneficial ownership.

(ii) A deed executed on 16th January, 2001 indicated that Crindle had a non-Roche beneficial ownership.

(iii) Certain correspondence in January and September, 2001 from Mr. Michael Peart, the solicitor then acting for the plaintiffs, reserved the position of the plaintiffs with regard to these matters.

(iv) A memorandum prepared by Miriam Delaney of Vincent & Beatty, solicitors, in April, 1997 is also said to support the plaintiffs contentions of fraudulent concealment on the part of Mr. Roche.

Beyond those matters, Mr. Wymes in the second affidavit which he swore before the High Court in these proceedings on 24th August, 2007, stated he was not in a position to confirm conclusively where the ownership of Crindle rested in 1997. He contended, however, that what transpired at the meeting in the offices of Arthur Cox on 15th January, 2001 was “highly evidential, if not confirmatory” of the fact that Crindle was not in the sole beneficial ownership of Mr. Roche Junior.

The relevant paragraph in the attendance dated 3rd April, 1997 of the meeting which occurred in the offices of KPMG records as follows:-

“We digressed and talked about the warranty we are seeking that there are no other encumbrances attaching to the shares. Tom will not give that warranty. We discussed the Bula situation. Basically Tom extricated himself from Crindle as of 1st January, 1995 and whilst he cannot be absolutely certain he feels that the Bula liabilities will stop at Crindle and because he no longer has an involvement in it that he is safe.”

It is further contended on behalf of Mr. Wymes that there are other “indicia” to be gleaned from the same memorandum that Tom Roche was making arrangements to avoid legal liabilities and those references appear at p.p.24/25/26 of Book 11 which contains the attendance memorandum.

In his affidavit sworn herein, Mr. Wymes deposes that the memorandum in question provides firm coroboration of there being non-Roche ownership of Crindle since January, 1995. Although he became aware of a non-Roche ownership in 2001, Mr. Wymes contends that the ensuing delay had taken place because there was difficulty in tying in this attendance to a time relevant to the Crindle proceedings. He thus maintained he was not seeking to re-litigate the issues determined in the Crindle proceedings, that is to say the two sets of s.205 proceedings. However, at par.52 of the second affidavit sworn by Mr. Wymes herein, he confirmed he was not in a position to say conclusively where the ownership of Crindle rested in 1997.

As against those contentions, there are unequivocal sworn statements both by Mr. Roche and by Isabel Foley, solicitor of Arthur Cox & Co., who are the solicitors acting for the defendants herein, that the ownership of Crindle was, as was stated to the Court at all material times (and in particular, in 1993, 1994, 1997 and 1998), that prior to 13th January, 1995, Crindle was beneficially owned by Mr. Roche, his father (the late Thomas C. Roche) and Conor Holdings Limited, and that since 13th January, 1995 has been in the sole beneficial ownership of Mr. Roche through a structure involving US entities. There is also a statement from Stephen Hegarty that he never made any statement to Mr. Wymes suggesting that Crindle was not in the beneficial ownership of Mr. Roche and that there was any non-Roche ownership of Crindle.

This then is the entire basis for the allegation of fraud which, it is acknowledged, would constitute the only basis for setting aside previous decisions of the High Court and of this Court.

In the course of his judgment delivered herein Edwards J. concluded as follows in relation to the allegation of fraud:-

“It is extremely significant that Mr. Wymes admits that he does not know, and cannot produce evidence as to, who is/are the ultimate beneficial owners of Crindle. Yet he has accused Mr. Roche, in explicit terms, of having perjured himself in that regard. He has no evidence whatsoever that there is, or has at any material time been, a non-Roche component in the ownership of Crindle. He has no evidence of fraud. He has no actual evidence of misrepresentation, or of breach of fiduciary duty, or of deceit, or of conspiracy, or of an intention to pervert the course of justice. What he does have is a giant suspicion (and he must be given the benefit of the doubt as to whether on a forensic testing of his evidence that suspicion would ultimately be regarded as justified and reasonable) but there exists a seemingly insurmountable obstacle to improving the truth of his suspicions.

In any case I am completely satisfied that even if Murphy J. had been appraised of a non-Roche component to Crindle, it is very unlikely to have affected the outcome of the 1997 s.205 proceedings. Mr. Justice Murphy was aware that the ownership of Crindle had been reconstructed so that the members were no longer exposed to unlimited liability. While exposure of the members to unlimited liability had significantly influenced his decisions in the 1993 s.205, his decision of the 1997 s.205 proceedings was based on different considerations. He took the view that Crindle, regardless of the underlying ownership, was a legal person in its own right and as such was entitled to protection from oppression.”

I am satisfied, as was the learned High Court judge, that at its “high water mark” the evidence at its height could only establish on the balance of probabilities that the representations alleged to have been made by Mr. Hegarty were in fact made. However, as noted by the trial judge, such evidence would not be sufficient to prove the truth or accuracy of those representations. It would merely establish that Mr. Wymes may have had some grounds for suspicion but no more than that.

The allegations contained both in pleadings and correspondence herein, being allegations of fraud, are allegations of the utmost gravity and seriousness. By letter dated 9th May, 2007, Mr. Wymes’ solicitors so acknowledged. The third paragraph of the letter of that date went so far as to warn the defendants’ solicitors “of the serious criminal connotations attaching to the swearing of a falsehood, and perversion of the course of justice”. The letter went on to threaten the “procurement of the prosecution of criminal proceedings against all wrongdoers on foot of the perjury and perversion of the course of justice referred to above, as well as such other sanctions of a legal and professional nature as are available to them.”

I am satisfied that none of the matters relied upon by the plaintiffs show that in 1997 Mr. Roche had knowledge of the sort complained of. I am equally satisfied that no arguable case has been made out whereby this Court could be satisfied that an appeal was likely to succeed. The Hegarty memorandum falls well short of supporting any such allegation, and the so called “indicia” of fraud which it is suggested can be gathered from the balance of the Hegarty document fall short to an even greater degree in evidential terms from that contended for by the plaintiffs.

The learned trial judge gave a most carefully reasoned judgment in this case in which he explored all issues and evidence in the most detailed manner before concluding that the present proceedings had no reasonable prospect of success and were an abuse of process. He was satisfied that the same had been brought for the improper purpose of stalling or further delaying the order for payment of costs of the two sets of s.205 proceedings.

However, for present purposes this Court need go no further than to identify whether or not an arguable appeal may be said to arise from any of the findings of the learned High Court judge. In my view, having carefully considered all the affidavit evidence herein and the exhibits therein referred to, that no arguable ground of appeal exists.

For that reason I would decline to extend the time for service of Notice of Appeal and would refuse the relief sought in the Notice of Motion.