Judgment of Macken, J. delivered on the 23rd day of February, 2012
This judgment concerns two applications made pursuant to Notices of Motion brought on behalf of the first and second respondents/defendants, for orders pursuant to Order 58, Rule 17 of the Rules of the Superior Courts, and to the inherent jurisdiction of this Court directing the plaintiffs/appellants to furnish security for the costs of those respondents in respect of the within appeals. Ancillary relief is sought, including the fixing of the amount of security before the Master of the High Court, and requesting that the time be stipulated by this Court within which to provide for such security, together with, in the usual way, an order for a stay on the further prosecution of the appeals pending security for costs being provided.
The application on behalf of First Active Plc. is grounded on the affidavit of Connor McDonnell, solicitor of Arthur Cox, solicitors, which gives the basis for the application being made, and to which reference will be made further in the course of this judgment. For the purposes of this introductory part of the judgment, it is sufficient to indicate the following, namely, that there were several cases heard together, or in sequence, before the High Court (Clarke, J.) in respect of which counterclaims were filed on behalf of the first respondent/defendant. The High Court delivered judgment in favour of that respondent on its counterclaims (by judgment of the 9th July, 2010) in the following sums:
Moorview Developments Limited €60,050,800
Salthill Properties Limited €60,050,800
Valebrook Developments Limited €61,060,576
Springside Properties Limited €59,553,486
The evidence establishes that the above cases, including the appellant’s claims and the respondents’ defences and/or counterclaims, were very time consuming and brief details are as follows:
(a) There were 90 days (full or part day hearings) in court prior to the commencement of the main trial on the 28th April, 2008.
(b) There was extensive discovery by the respondents requiring a review of over 70,000 documents.
(c) A substantial number of lengthy and detailed witness statements had to be prepared in relation both to factual witnesses and expert witnesses testifying on behalf of the respondents.
(d) Over 100 days of hearings took place from the commencement of the main trial on the 28th April, 2008 until completion of all the actions.
(e) Numerous amendment applications were made in relation to the nature of the claims being put forward on behalf of the plaintiffs/appellants, which claims were all found by the learned High Court judge to be without merit.
In relation to the foregoing, it is said that the first respondent’s legal costs in respect of the proceedings before the High Court, amounted to a very significant sum, in the region of millions of Euro incurred over a period of about 7 years. Costs were awarded in favour of all defendants/respondents.
Subsequent to the main judgment delivered on the 6th March, 2009, which is the subject matter also of the main appeal in these proceedings, solicitors acting on behalf of the first defendant/respondent by letters in early 2010 and in early 2011, sought security for costs from the solicitors then acting on behalf of, inter alia, the present appellants, and all the other corporate appellants, as well as a Mr. Brian Cunningham, a personal appellant in a related matter, and the driving force behind the Cunningham Group. Security for costs was declined by those solicitors. It is said on behalf of that respondent that it is apparent from the letter of the 27th January, 2011, from the solicitors then acting on behalf of the corporate appellants, that they were in each case insolvent. There has been no suggestion otherwise to this Court. Insofar as Mr. Cunningham is concerned, in the judgment of the High Court (Clarke, J.) dated the 16th March, 2011, that court drew the inference that he was the promoter of the entire litigation, and in respect of which, it is said, his financial means are not clear. This inference was drawn by the learned High Court judge in his judgment on an application made on behalf of these defendants/respondents to declare Mr. Cunningham personally liable for the costs already awarded against the corporate plaintiffs in favour of these defendants/respondents. That order was made
The appellants resist the applications on the basis that: (i) they have a good and valid appeal; (ii) the appeal is genuine and not a spurious attempt to avoid paying the taxed costs; and (iii) when the Notice of Appeal is considered in detail, while it seeks to set aside the entire of the judgments of the High Court, those grounds of appeal include grounds why, in law, the judgment was incorrect. I point out at this stage that the Notice of Appeal extends to 24 page and raises over 100 separate grounds, covering areas including: (a) the non-suit application; (b) permission to amend; (c) use of the discovered documents; (d) the Witness statements; (e) uncontroversial facts; (f) the fraud and contract claims; (g) the claim for rectification; (h) the nature of a demand facility; (i) the fraud claim; (j) the case against the second respondent; (k) the claim in respect of Malahide Road; (l) the sale of Baily Point; (m) certain dependent claims which it is not necessary to enumerate in this judgment, and certain further so-called independent claims which are also not enumerated. In respect of all of these, it is said that the learned High Court judge misdirected himself to such an extent that the judgment(s) are fatally flawed. Finally, the application is resisted on the basis that a sum of money of this nature, that is to say, by way of security for costs, is, by implication, bound to affect the appellants adversely in their financial affairs, and will also impact on their ability to prosecute the appeal properly.
In the grounding affidavit of Mr. McDonnell, no figure is presented to the Court as to the likely costs, as the fixing of costs is sought to be executed before the Master in the Notice of Motion.
A Notice of Motion for security for costs has also been filed on behalf of the second respondent/defendant, between Moorview Developments Limited and other companies, and is advanced on behalf of Mr. Jackson on the same or on similar grounds to those already mentioned in relation to the first of the Notice of Motions filed.
The written submissions filed cover the appeals of Moorview Developments & Others v. First Active Plc., Ray Jackson, and by order, Bernard Duffy (Appeal No. 250/2010), and what are called related appeals, which are all of those appeals set out above. For completeness sake, the third named respondent/defendant is a person who purchased certain properties formerly owned by the Cunningham Group from the Bank, selling as mortgagee in possession.
On behalf of the first respondent/defendant, senior counsel, Mr. Maurice Collins submits that the application for costs sought in the present set of related proceedings is particularly apt, having regard to the following matters.
The proceedings all arose, it is said, out of the banking relationship between First Active Plc., (“the Bank”) who advanced monies to the corporate appellants who are all part of what became known as “the Cunningham Group” over a period of time, in particular in relation to the acquisition and development of banks of real property. It is said the relationship deteriorated over time, and eventually the Bank appointed a receiver to some or other of the corporate companies within the Group in April, 2003. The second respondent/defendant was the receiver so appointed. Mr. Collins says it is common case that the Cunningham Group is grossly insolvent, or that companies within the Group are so. The present proceedings and the related appeals, were all proceedings commenced by the corporate plaintiffs, and/or by Brian Cunningham, the main mover behind the group of companies.
Insofar as the present appeals and the related proceedings are concerned, these commenced before the High Court (Clarke, J.) and lasted for a period of approximately 66 days. At the end of the plaintiffs’ evidence, the defendants brought applications for a non-suit or a direction, and other applications, in respect of all of the claims by the plaintiffs, which applications were acceded to by the High Court. The High Court pronounced its decision in relation to the main action in December, 2008, but the detailed judgment incorporating the reasons for the same was delivered on the 6th March, 2009, and extends to 170 pages. Again, for completeness sake, there were smaller numbers of ancillary claims which were not the subject of the above application for an non-suit or direction, and which were rejected in subsequent judgments.
The seven relevant proceedings in which security for costs is sought on this motion, were disposed of in the following manner:
(a) Appeal No. 243/2006: Porterridge Trading Ltd. v. First Active plc. This is an appeal arising out of a judgment dated 4th October, 2006 on a preliminary application by the Bank, in which the High Court dismissed the bulk of the Plaintiff’s case in light of an earlier judgment of May, 2006. That concerned an application for directions brought by the second defendant/respondent Pursuant to Section 316 of the Companies Act, 1963 in relation to one of the companies, Re Salthill Properties Ltd., in the Cunningham Group. The principal grounds of appeal relate to the application by the High Court of the rule in Henderson v. Henderson [1843] 3 Hare 100.
(b) Appeal No. 178/2008: This appeal arises out of a ruling of the learned High Court judge in May, 2008, in the course of the hearing in the main proceedings, on an application by the plaintiffs/appellants to amend their pleadings. This application was in part successful. The principal ground of appeal now raised is against the ruling of the High Court refusing leave to amend on two particular grounds, on the basis that they were bound to fail.
(c) Appeal No. 250/2010: This is considered by all the parties as the main appeal. It arises out of the Main Judgment delivered on 6th March, 2009, which also had an effect on the proceedings entitled Brian Cunningham v. First Active plc., and on part of another case. This judgment dismissed the Plaintiffs’ claim on foot of a non-suit application on the grounds that the Plaintiffs’ evidence failed to disclose a prima facie case.
(d) Appeal No. 251/2010: This is an appeal arising out of a judgment of the 17th July, 2009. The Court dismissed the plaintiffs’/appellants’ claims on the remaining issues (not the subject of the non-suit application), in particular, issues described as “Property not within Scope of the Debentures” and the “Kanwell Well-Charging Application”, which includes proceedings entitled Kanwell Developments Limited v. Salthill Properties Limited (In Receivership). The principal issues raised in the appeal relate to whether the High Court was correct in holding that certain properties acquired by the Cunningham Group at Baily Point, Salthill, Co. Galway fell outside the scope of certain debentures executed in favour of the Bank, whether the High Court judge correctly analysed whether freehold and leasehold titles had merged and related matters concerning the sale of certain apartments at the Salthill site.
(e) Appeal No. 252/2010: This appeal arises out of a judgment of the 5th February, 2010. By that judgment the High Court dismissed an application by the Plaintiffs to tender evidence in defence of the first defendant/respondent’s counterclaim in the proceedings in which the non-suit order was made, and in particular whether the dismissal gave rise to a res judicata.
(f) Appeal No. 308/2010: This is an appeal arising out of a judgment of the 9th July, 2010 and a subsequent judgment of the 29th July, 2010, in which the Bank was granted judgment in the sum of €1,900,000 plus interest against Mr. Cunningham in proceedings entitled First Active Plc v. Brian Cunningham. The grounds of appeal largely mirror those raised in Appeal No. 252/2010.
(g) Appeal No. 96/2011: This is an appeal against a judgment dated the 31st July, 2009 in proceedings entitled Brian Cunningham v. Springside Properties Limited (In Receivership), Arthur Cox and First Active Plc (“Case G”) in which the Court dismissed those proceedings. Insofar as the first defendant/respondent is concerned, the principal grounds of appeal relate to the Court’s finding that a cross-guarantee given by the Cunningham Group company, was not ultra vires and a further finding that certain debentures had not been released.
In Mr. Cunningham’s affidavit it is contended that the application for security is being opposed on the following grounds:
(a) the impecuniosity of the Cunningham Group and of Mr. Cunningham, personally, was caused by the Respondents to the appeal;
(b) the appeals are proper appeals brought in good faith and that if security is granted, the appeals will be stifled;
(c) the appeals raise issues of public importance suitable for decision by this Court including whether a non-suit judgment gives rise to a res judicata, whether it was appropriate to order a non-suit where the Plaintiffs’ case depends partly on cross-examination of the Defendants’ witnesses and whether, in a non-suit application, the Plaintiff may rely on the Defendant’s witness statements;
(d) insofar as Mr. Cunningham personally is concerned, for him to be ordered to lodge security would effect an unreasonable restriction on his right of access to the Courts.
RELEVANT LEGAL PRINCIPLES
The applications are made based on two separate grounds, one pursuant to the jurisdiction vested in this Court pursuant to Order 58 of the Rules of the Superior Courts, and as to the corporate appellants, is made also pursuant to S.390 of the Companies Act 1963.
Order 58, Rule 17 of the Rules of the Superior Courts provides:
“Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Supreme Court.”
Section 390 of the Companies Act, 1963 provides:
“Where a limited company is plaintiff in any action or other legal proceeding, any judge having jurisdiction in the matter, may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs and may stay all proceedings until the security is given.”
Counsel for all parties agree that the case law on the question of security for costs, both under the Rules of the Superior Courts, and also under the provisions of s.390 of the Companies Act 1963 is by now well established, and all the parties invoke several judgments of this Court and of the High Court as being of assistance to them and relevant to the decision which this Court must make. For the purposes of this judgment, the distinction drawn between the criteria as to the measure of costs available under one or other hearing is not really material.
In addition, however, Queens Counsel, Mr. Page, on behalf of the appellants, invokes certain English decisions in support of his contention on behalf of the corporate appellants and Mr. Cunningham, that this Court should embark on a considered, and quite detailed, examination of the grounds set forth in the Notice of Appeal and the evidence adduced or established, as well as the determination of the learned High Court judge, for the purposes of assessing the strength of the appeal under several headings. While it was pointed out to counsel that both the practice and the established case law make it clear that this is not an exercise which is proper to be embarked upon on an application of this nature, nevertheless, the Court permitted Mr. Page to draw attention, in considerable detail, to matters of the above type which he wished the Court to have regard to. The case law of this Court, and of the High Court, makes it clear that the practice does not support such an approach. There is a very good reason for this. It is inappropriate in the case of an application for security for costs for the court to embark on a determination as to the strength of an appeal or appeals at this preliminary point. By doing so, it would inevitably lead to the possibility of three of the judges of the Court reaching conclusions on the merits of the appeal. It is sufficient for this Court to say that the series of proceedings in which the learned High Court judge held against the corporate appellants and Mr. Cunningham are complex and complicated, and contain a range of allegations, including those of fraud and rectification which would, moreover, make it impossible to embark on the exercise we are invited to undertake. But for the very same reasons, in light of their nature and complexity, it would be inappropriate to suggest that the appeal is unarguable without considering the nature of the main grounds as invoked in the written submissions and by Mr. Page in oral argument. I deal with these later in the judgment.
The court is also entitled also to have regard for the fact that the main judgment is one in which the High Court granted a non-suit at the close of the plaintiffs’ case, on the basis that their evidence disclosed no cause of action, and in that regard this Court on an appeal will be bound by the principles in Hay v. O’Grady [1992] 1 I.R. 210, as to primary facts, and the more limited function of an appellate Court in reviewing those findings, as referred to in Northern Bank v. Charlton [1979] IR 149.
Having regard to the foregoing, the Court now considers the case law regulating such applications. On a preliminary basis, it is clear from the case law that the rules and practices which govern applications for security for costs in the High Court do not necessarily or in all cases apply automatically to applications made to this Court. There is a discretion vesting in the Court, which may refuse to grant security for costs depending on the existence of special circumstances, and the categories of special circumstances are not closed. It is appropriate to take into account all of the relevant circumstances.
The plaintiffs’ concern that the making of an order for security might stifle the plaintiffs’ appeals by making it impossible to have access to this Court, is of course a serious concern, and one raised by Mr. Cunningham’s in his affidavit. It is not, however, always a determining factor. This very issue has been considered in the course of applications to this court on several occasions. Keane J. in Lismore Homes v. Bank of Ireland Finance [1992] 2 IR 57, in an application for security under Section 390, has stated::
“Section 390 of the Act of 1963 expressly envisages that an impecunious plaintiff company may be required to give security for costs and it may well be that in many cases this will mean the end of the action, unless someone other that the company itself is prepared to put up the security. To refrain from granting an order for security, save in the exceptional circumstances already referred to, simply because it might have the effect of stifling the plaintiff companies' actions would be to render the section nugatory.”
The principles applicable to applications for security for costs, have been established since at least the decision in Midland Bank v. Crossley-Cooke [1969] IR 56, in which this Court reviewed its previous case law, Walsh J. stating that four clear and identifiable points emerged from the earlier jurisprudence, as follows:
“…, first, the Court was free to order security in any type of case. Secondly, that poverty alone was not sufficient to warrant the making of such an order. Thirdly, that poverty, or insufficiency of assets on the part of the appellant, was an essential prerequisite for the making of an order. Fourthly, if a point of law of public importance was in issue, that the Court would not make such an order, even if all the other circumstances existing in the case would themselves have ordinarily caused the Court to make the order, if the effect of making the order would be to prevent the point of law in question being decided.”
Walsh J. continued:
“It would appear that in the circumstances of any particular case the Court could have felt itself justified in making such an order when there was a combination of poverty of the appellant and any one or more of the several factors mentioned in those cases, such as a party being resident out of the jurisdiction, or there being no apparent prima facie grounds for the appeal, or the complexity of the issues, or long delays on the part of the appellant in the conduct of the litigation, or where the appellant is simply a nominal appellant; or, where there are several appellants and poverty is common to each of them, a combination of that and one or more of the other factors even if the other factors affect only one of the appellants.”
These principles have been adopted in one form of wording or another in several cases, most frequently, it is true, in appeals from Orders of the High Court directing or refusing security for costs. It is not necessary to embark on a consideration of all of the case law of this court as the principles are recognised as being clear. In Bula Limited v. Tara Mines Limited (Supreme Court, unreported, 26th March, 1998), Keane, J. (as he then was), a case concerning security for costs in an appeal, stated:
“The principles of law applicable to motions such as these requiring provision of security for the costs of an appeal to this Court are clear. The Court has a discretion as to whether to make such an order under either Order 58, Rule 17 of the Rules of the Superior Courts or Section 390 of the Companies Act, 1963 or both. That discretion must be exercised, however, so as to ensure that the requirements of justice are met in the particular circumstances of the case.”
He relied on an oft quoted extract the judgment of Walsh J. in Midland Bank, supra., concerning the existence of “special circumstances”, and in that regard stated:
“The reference to the ‘complexity of the issues’ must, I think, be seen in the context of the remainder of the passage. Walsh J., presumably, was indicating that the Court might look less favourably on an application for security for costs where, although the Appellant is impoverished, the appeal is unlikely to prove lengthy and expensive and there appears to be an arguable case.”
In West Donegal Land League v. Udaras na Gaeltachta [2007] 1ILRM Geoghegan, J. stated:
“The case law under section 390 establishes that notwithstanding the insertion of the word “may” the court in the absence of special circumstances and as a matter of appropriate exercise of its discretion will in a given case order security for costs in the circumstances provided for by the section. The “special circumstances” would seem to be limited and I will return to them in detail in due course.
It is not seriously in dispute as will be clear from the later part of this judgment that the appellant company prima facie falls within section 390. It is clear from the evidence before the court that in the event of an order for costs being made in favour of the defendant the appellant company would have little or no assets to meet it. The onus is on a defendant to establish that state of affairs but that onus has clearly been discharged in this case. The only remaining question is whether there are special circumstances which might justify refusal of the order. The onus of establishing such special circumstances is on the plaintiff company.
I would agree with the view expressed by Denham J. in her judgment that the categories of special circumstances are not closed. Although in the second edition of Delany and McGrath on Civil Procedure in the Superior Courts four categories of special circumstances are helpfully summarised, these are simply sets of circumstances which have in fact influenced courts in particular cases to refuse the order. I am satisfied, however, that this does not mean that a court is wide open in its discretion as to whether to grant or refuse the order. That approach would defeat a clear and, as Murphy J. pointed out, reasonable aim of the Oireachtas as enacted in section 390. The validity of the view which I have just expressed would appear to be well illustrated by the four sets of circumstances set out in and elaborated upon in Delany and McGrath. These are:
(a) Where inability of the plaintiff to provide security attributable to the actions of the defendant.
(b) Delay.
(c) Point of law of exceptional public importance.
(d) Existence of individual co-plaintiff.”
In the Midland Bank case, supra., this Court also took into account the conduct of the litigation, in particular that a party had pursued allegations which they were unable to support with credible evidence, and that the appellants were unable to establish there were arguable grounds of appeal.
A helpful analysis of the overall approach to security for costs is also summarised in Interfinance Group Limited v. KPMG Pete Marwick (High Court, unreported, 29th June 1998) in which Morris, P. stated:
“a. in order to succeed in obtaining security for costs an initial onus rests upon the moving party to establish:
(i) that he has a prima facie defence to the plaintiff’s (appeal), and
(ii) that the plaintiff will not be able to pay the moving party’s costs if the moving party be successful;
b. In the event that the above two matters are established then security ought to be required unless it can be shown that there are special (specific) circumstances in the case which ought to cause the court to exercise its discretion not to make the order sought. In this regard the onus rests upon the party resisting the order to establish the existence of special circumstances.”
The most obvious examples of special circumstances include cases where a plaintiff’s inability to discharge the defendants’ costs flow from the wrong allegedly committed by the moving party, or where there has been delay by the moving party in seeking the order sought. It is clear that the list of special circumstances is not, however, exhaustive. (see Denham, J. in West Donegal, supra).
I am satisfied that the case law is very well established. There is no doubt of the impecuniosity of the appellants. There has been no real delay on the part of the two defendants/respondents seeking costs. It is true that Mr. Cunningham avers that the troubles, financial and other, which led to the commencement of the proceedings, and to their very impecuniosity are to be laid at the door of the first respondent, but that must be tempered by the fact that the learned High Court judge found against the appellants on all possible grounds, and moreover, in the main judgment, did so on the basis of a failure by the appellants to establish in evidence any stateable case at all.
True it would be difficult to conclude from the history of the judgments, and even having regard to Mr. Page’s elegant submission, that there are reasonable grounds for concluding that the appeal is, on balance, stateable. There are several lengthy, detailed and comprehensive judgments in existence, in respect of the nature of which it is, without going into detail, impossible to say that there is a good prima facie stateable appeal on the merits. However, for the very reason that the issues are complex and complicate, and a great deal interrelated, it is necessary to take account of the primary submissions made in respect of the main grounds of appeal, with a view to assessing whether they, in fact, disclose stateable grounds of appeal. I deal with them in the terms in which they are dealt with in the written submissions, bearing in mind also what was said in relation to them by Mr. Page.
1. Given the nature of the fraud claim, which depended largely upon evidence as to the state of mind of First Active’s staff, and upon dealings between them to which the Plaintiff companies were not a party, it would be unjust to the plaintiff not to give them the opportunity of cross examining First Active’s witnesses on their explanation for the failure to fund completion of Baily Point.
This appears to place the cart before the horse. In an application for a non suit on the basis tendered, namely that there was no evidence to support a prima facie case of fraud, which the learned High Court judge found to be the case, the face that the position might have been different – although there is no evidence to that effect – if the allegor had an opportunity to cross examine, is not supported by the law. The plaintiff must establish his own claim before any cross examination of the other party. This claim does not appear to support a stateable ground of appeal.
2. It is said that the learned High Court judge failed to maintain a rigorous distinction between the fraud claim (dependent on the bank’s alleged representation as to its subjective intention) and the contract claim, which dependent upon an analysis of the legal obligations it had undertaken.
Again, however, the learned High Court judge found that the allegations were not supported by the evidence, and it is unclear how the claim reflects on the merits of any of the grounds of appeal. Nor is it clear from the oral submissions how this might affect the outcome of an appeal where several other grounds of appeal are not stateable,
3. It is said there was no basis for excluding the witness statements of the Bank’s witnesses, which were not privileged documents and had been referred to in court.
On this point also, the appellants appear to misunderstand the status of such witness statements, which is not the same necessarily as in other jurisdictions. Since the application was for a non suit, the witness statements were not relevant to whether or not the appellants had themselves made out a prima facie case such as to resist a non suit, unless they were admissible for that purpose, and no valid ground has been put forward to establish that they were.
4. As to the suggestion that the High Court judge was wrong to find that there was prima facie case for rectification, when there were allegedly “key” changes made to facility letters between a meeting on the 15th August and a signature on the 16th August, with no notice to the Plaintiffs of the changes, the learned High Court judge found that the appellant’s evidence did not support any suggestion of any improper change, and that the changes had been agreed with the appellants’ legal representative.
A similar approach can be taken to the remaining three specific items invoked by the appellants in their written submissions as being the primary bases for the main grounds of appeal which they wish to advance. And the same might be said for the appellant’s argument in relation to the issue of res judicata,
It is difficult to conclude, admittedly on a relatively cursory analysis of the apparent merits of the grounds of appeal being advanced as those of most importance, that the appellants have established that they have arguable grounds of appeal of the type one would expect to be able to present for the purposes of an application of this nature, and I find that no such arguable grounds have been established.
In light of the foregoing, the position appears to be as follows. It is common case that the Plaintiffs are impecunious. It is clear that the respondents will not, if they are successful, be recompensed for the costs involved in the appeal. Although in the case law, if an appeal raises points of law of exceptional public importance (of the type which ordinarily might support a certificate for leave to appeal pursuant to s.29 of the Courts of Justice Act, 1924, as amended), the Court might exercise its discretion, in that exceptional circumstance, and refuse security for costs, no such circumstances arise here. None of the points transcend the individual facts and parties in the proceedings. While, as mentioned above, the manner in which the proceedings have been conducted may also be a ground for granting security for costs, I do not base my judgment on that possible ground, and make no comment on it, as if security for costs is granted and paid, it would be inappropriate to do so.
I base my finding that orders for security for costs should be granted in respect of both applicants, on the basis that the appellants are insolvent and/or impecunious, there are no disclosed clear arguable grounds of appeal, and the appeal is likely to be of significant length.
I would propose to make orders in the terms of the notices of motion, and will hear the parties in respect of ancillary orders sought.
