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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Irish Bank Resolution Corporation Ltd -v- Quinn & ors [2014] IESC 11 (26 February 2014)
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Cite as: [2014] IESC 11
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Judgment Title: Irish Bank Resolution Corporation Limited -v- Quinn & ors Neutral Citation: [2014] IESC 11 Supreme Court Record Number: 535/12 High Court Record Number: 2011 5843 P Date of Delivery: 26/02/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Clarke J. Judgment by: Clarke J. Status of Judgment: Approved
Notes on Memo: Strike out appeal. | ||||||||||||||||
THE SUPREME COURT [Appeal No: 535/12] Denham C.J. Murray J. Clarke J.
Irish Bank Resolution Corporation Limited,
Quinn Investments Sweden AB and Leif Baecklund Plaintiffs/ Respondents -and-
Sean Quinn, Ciara Quinn, Colette Quinn, Sean Quinn Jnr, Brenda Quinn, Aoife Quinn, Stephen Kelly, Peter Darragh Quinn, Niall McPartland, Indian Trust AB, Forfar Overseas AS. Lockerbie Investments AS, Clonmore Investments AS, Marfine Investments Limited, Blandun Enterprises Limited, Mecon FZE, CJSC Vneshkonsalt, OOO Striotelnye Tekhnologii, OOO RLC Development and Karen Woods, Defendants/ Appellants Judgment of Mr. Justice Clarke delivered the 26th February, 2014. 1. Introduction 1.2 For present purposes, it is sufficient to note that, in the context of allegations made by the plaintiffs/respondents (collectively "IBRC") to the effect that certain assets formerly owned by companies within the Quinn Group had, contrary to orders of the High Court, been wrongfully placed outside the reach of those charged with getting in those assets, receivers ("the Receivers") were ultimately appointed by the Court in aid of certain court orders. 1.3 Of direct relevance to the issue which this Court now has to decide is the fact that, on the 8th November, 2012, a motion came before the High Court (Kelly J.) which was brought by the Receivers. A range of orders were applied for against some of the defendants/appellants (described in the order and in this judgment as the "Relevant Defendants") which sought that they be required to deliver documents, electronic devices and the like to the Receivers together with an order directing two of the defendants/appeallants to provide the Receivers with certain specified information. 1.4 However, of particular relevance to the issue which this Court now has to decide, the Receivers also sought at para. 4 of the notice of motion, a "direction of the Court confirming that the Receivers may provide the Plaintiffs herein with any non-legally privileged information that it [sic] receives either from the Relevant Defendants or any third party in their capacity as Receivers over the assets of the Relevant Defendants which they have been appointed over pursuant to Orders dated 29 June 2012, 30 July 2012 and 31 July 2012". 1.5 On the 9th November, Kelly J. made the order sought although with some amendment. In particular Kelly J. granted, without amendment, the direction set out at para. 4 which I have already quoted. In addition, Kelly J. specified in the order a series of nine procedures which were to be followed so that, as it was put, "the legal and constitutional entitlements of the Relevant Defendants are given due respect in the context of this litigation". 1.6 The Relevant Defendants appealed to this Court against that order of Kelly J. As a result of the filing of supplemental submissions, it became clear that the particular focus of the arguments addressed on behalf of the Relevant Defendants in their appeal was an assertion that the procedures to which reference has just been made breached their entitlement to claim legal professional privilege over documents and electronic material. The procedures specified in the order of Kelly J. required the relevant materials to be handed over to the Receivers but also provided that, in any case where there might be any question of any privilege arising, the Receivers were, prior to handing over any such materials to IBRC, to raise the question of privilege with the solicitors for the Relevant Defendants so that any question of legal professional privilege could either be agreed or referred to the Court for ruling. It was argued in the relevant written submissions that, by permitting privileged materials to be handed over to a third party, even on the basis of such a regime, the fundamental entitlement of a party to assert legal professional privilege was impermissibly weakened. It is agreed that negotiations between counsel followed which focused solely on the question of putting in place an alternative regime to that specified in the order of Kelly J., which regime would somewhat reverse the process by allowing the Relevant Defendants to first assert privilege and then provide a means for determining any disputed privilege issues which might arise. 1.7 Subsequent to counsel reaching an agreement on such revised procedures, correspondence ensued between the respective solicitors leading to the production of a document which, in form, was an amended version of the original order made by Kelly J. but incorporating the changes which had been agreed. There were also some other differences between the original order made by Kelly J. and this document to which reference will need to be made in due course, for those differences lie at the heart of the dispute between the parties which arose. In any event, the parties presented that document to this Court and invited the Court to make an order in those terms. For reasons which I will touch on in early course, this Court did not consider it appropriate to make such an order in that form and invited the parties to return at a later date with a revised order which would, in form, correspond with this Court's view as to what was appropriate. At that stage, difficulties were encountered in agreeing the final form of order and the parties asked that the matter be relisted before this Court to enable the issue which had arisen between them to be resolved. The matter was argued on the 19th February, 2014, and this judgment relates to the issue raised in the course of that argument. One development, to which it will be necessary to refer in due course, occurred after the case had been argued but before this judgment was delivered. In order to understand the precise issues which arose, it is necessary to start by briefly outlining the reasons why this Court did not consider the original settlement document to be in an appropriate form to be adopted, without adjustment, as an order of this Court. 2. The Problem with the original Settlement Document 2.1 The document concerned was annexed or scheduled to terms of settlement signed on behalf of the parties. The first such term specified that the parties agreed "to the Supreme Court varying the High Court order of 9 November 2012 on consent by the substitution for the said order of the order set out in the Schedule hereto" 2.2 The scheduled document ("the scheduled draft order") was in the form of a High Court order purporting to have been made by Kelly J. on the 9th November, 2013 (although no order was made by Kelly J. on that date but rather the original order had been made on the 9th November 2012). Furthermore, the document is titled The Supreme Court but is in form the same as the order made by Kelly J. on the 9th November 2012 save for some adjustments to reflect what was said to be necessary to meet the terms of the agreement between the parties and further save for one omission to which it will be necessary to make specific reference in due course. 2.3 All courts in Ireland are now courts of record. That means that the official record of orders made by the courts are to be found in the formal written orders produced which are, subject to the entitlement of the court to correct any errors in same, a definitive account of what a court determined on a relevant occasion and in respect of the specified proceedings. It is, therefore, of the utmost importance that the record be accurate. 2.4 The form of the scheduled draft order, if it had been made an actual order of this Court without change, would have created an inaccurate record for it would have led to the production of an official court document which would have been misleading. The document, while titled "The Supreme Court", made reference to the order being made by Kelly J. The disparity in date has already been mentioned. But perhaps the most serious problem was that the form of substantive order which followed was not one which had ever been made by Kelly J. but rather was one which involved a variation on the order made by Kelly J. to which the parties agreed. While it can be said that the scheduled draft order reflected where the parties wished to end up (i.e. with an order in that form), to make such an order in that form would have been to allow the official record of the court to be at variance with what actually occurred. That was something which this Court could not allow. 2.5 It was on that basis that the Court invited the parties to go away and attempt to agree a proper form of order which would reflect the fact that what was now to be put in place was an amendment to the original order of Kelly J., which amendment was to be made by consent of the parties. There would, of course, have been a number of ways in which that end could have been achieved. This Court did not seek to be prescriptive about what format should be used provided only that the format did not create a record which was at variance with what had actually occurred. 2.6 However, at the centre of the issue which arose is a problem concerning the omission (for whatever reason) of one paragraph which had been present in the order of Kelly J. but which was not present in the scheduled draft order. I, therefore, turn to that difference. 3. The Difference in the Orders 3.2 The order then went on, perhaps unnecessarily, to make specific orders or give a specific direction in the form of each of the reliefs sought incorporating, where appropriate, the amendments or variations which had already been specified. In that context, the order included a direction in respect of the Receivers which reproduced precisely the form of words in which that direction had been sought at para. 4 of the notice of motion. 3.3 It follows that there were three mentions of that direction in the order of Kelly J. First, there was a recital of the direction which was sought at para. 4. Second, there was a statement that the relief at para. 4 (being the relevant direction), was granted. Third, there was a specific direction made in identical terms to the text in which the direction was sought. 3.4 The problem which emerged stems from the fact that, in the varied or amended order originally placed before the Court, in the circumstances already described (being the scheduled draft order), the first two of those references, but not the third, was included. How the third reference came to be omitted is not a matter on which this Court can make any comment at this stage. 3.5 The scheduled draft order was, therefore, in the form of an order which recited the direction sought at para. 4 and included provision that the relief sought at that paragraph was granted. While the order went on, in that draft form, to add express orders which reproduced the terms of the orders sought at paras. 1 to 3 with such variations as had been identified by Kelly J., the document was simply silent about including a similar express direction in respect of the contentious para. 4. 3.6 Thereby lay the dispute between the parties. A revised draft order was urged on behalf of IBRC which sought to reintroduce a provision containing such an express direction. The Relevant Defendants argued that such a paragraph, having been omitted, for whatever reason, in the document which was agreed between the parties, could not be reintroduced. 4. The Argument 4.2 Counsel for the Receivers acknowledged that an express reference to the text of the direction to hand over non-privileged documents to IBRC was omitted in the drafting process that led up to the presentation to the Court of scheduled draft order. However, counsel argued that such an omission was not of any relevance because the same document retained the reference which had been included in the original order of Kelly J. which expressly stated that the relief claimed at para. 4 of the original notice of motion was granted. 4.3 Thus, counsel argued, there was a sense in which both the original order of Kelly J. and the scheduled draft order contained surplusage in that, in respect of each item of relief sought in the notice of motion, the order both recorded the fact that the relevant relief was granted (with or without adjustment) and then went on to further expressly make an order or direction in the form of the relief sought (again with or without amendment). It was, of course, the case that, in the scheduled draft order, however, the second provision did not appear but only in respect of the direction concerning the making of non-privileged documents available to IBRC. Counsel's argument was to the effect that the second provision, being surplusage, was not really necessary given that the scheduled draft order did include an express statement that the relief sought at para. 4 of the notice of motion was granted. 4.4 However, counsel argued that, for the avoidance of doubt, and having regard to the fact that the other three orders were, in addition to being recorded as being granted, with or without variation, expressly repeated, it would be appropriate to include an express direction incorporating the terms of para. 4. Counsel argued that leaving this out might lead to some possible confusion or dispute as to what the order actually meant. Counsel argued that there could be no legitimate basis for contesting that a direction in that form was agreed to be granted for, he suggested, the scheduled draft order expressly refers to the granting of the relief claimed at para. 4 of the original notice of motion and, therefore, it was said that the scheduled draft order could bear no other meaning. 4.5 Counsel for the Relevant Defendants accepted that the factual account given by his colleague was correct. However, he drew attention to the fact that, for whatever reason, the scheduled draft order did not in fact include an express direction concerning the handing over of non privileged documents to IBRC. On that basis, counsel indicated that it was his instructions that his clients were not agreeable to any variation in the terms of the substance of the scheduled draft order. On that basis, it was suggested that, if the Receivers wished that the omitted clause be included in any order of the Court, there was no true agreement between the parties as to any court order which should be made and that the only option would be that the appeal would have to be heard on the merits. 4.6 Three further points need to be noted. First, counsel representing IBRC appeared and supported the position adopted by the Receivers. Second, the Court raised with the parties the question of the extent, if any, to which the Court could or should truly resolve issues arising between the parties where there is a dispute as to the terms of a settlement in the manner in which same was sought to be done in this case. In that context, the Court pointed out that, at least ordinarily, the proper procedure to be adopted by a party who seeks to enforce the terms of a settlement of one set of proceedings is by means of separate proceedings in which the contract (which is the settlement) is sought to be enforced. 4.7 Third, it needs to be noted that, subsequent to the hearing, correspondence was received by the Court from solicitors acting for the Relevant Defendants which indicated that they now agreed to a court order in the form proposed by IBRC. 4.8 Against that backdrop, I propose to deal briefly with the issues which arose. 5. Discussion 5.2 However, in this case there was no factual dispute but that a settlement in the terms of the scheduled draft order was entered into. As has already been noted that settlement involves a document (the scheduled draft order) which, for the reasons already analysed, while wrong in form, might still be said to represent the substance of what the parties had agreed. If there could be no dispute as to the substance of the parties' agreement, then it seems to me that, exceptionally, a court, including this Court, can deal with issues arising on a settlement for the purposes of ensuring that the form of order made is not one which could be the subject of any ambiguity or difficulty. It seems to me that all courts have an obligation to ensure that their orders are free of ambiguity or potential confusion. It follows that courts have an inherent jurisdiction to ensure that the form in which any order made, even on consent, takes is one which is free of such ambiguity. Where there can be no doubt as to what the substance of the agreement between the parties is and where the only question is as to the form in which that substance should be reproduced in an order of the Court, then it seems to me that the Court can intervene, without fresh proceedings, to ensure that an order is made which reflects the undoubted substance of the matters agreed between the parties but which is in a form which the Court itself considers satisfactory. 5.3 It is also for that reason that it is appropriate for this Court to rule on the issue debated at the hearing notwithstanding the belated agreement between the parties. The form of any court order is, ultimately, a matter for the Court and not the parties, although a court will, ordinarily, be happy to make an order in a form which the parties agree unless the Court is concerned that by so doing it may create ambiguity or otherwise make an order which is wrong in form. 5.4 If, therefore, it can be said that there is no doubt as to the substance of what was agreed between the parties, I am satisfied that this Court has jurisdiction, on an application such as this, to ensure that the substance of that agreement is incorporated into an order of this Court which is appropriate in form. On the other hand, if there is any true doubt as to the substance of what was agreed between the parties then the matter would, inevitably, either have to be litigated in fresh proceedings (if either of the parties wished to sue upon what was said to be a binding settlement) or, if neither party so elected, by the substance of the appeal going ahead on the merits. On that basis, it seems to me that the question which this Court was asked is as to whether, in the circumstances of this case, there could be no doubt as to the substance of the terms of settlement. 5.5 It seemed to me that such was the case in any event. The scheduled draft order contains clear provision to the effect that the reliefs sought at para. 4 of the original notice of motion to the High Court is granted. The form of direction which the Receivers sought to have included in the order is simply a reproduction of the text of that paragraph. There can, therefore, in my view, be no doubt but that the scheduled draft order included provision for a direction in that form by means of the express statement to the effect that the relief sought at para. 4 was to be granted. The fact that the scheduled draft order did not go on to say the same thing for a second time by setting out the direction in terms is, therefore, neither here nor there. There was, in my view, therefore, no basis for any dispute about the meaning of the substance of the settlement which finds its form in the scheduled draft order. The order to be made as a result of the settlement includes a direction in the terms of para. 4 of the original notice of motion because it says so in such terms. 5.6 However, as pointed out, the form of the order is a matter for the Court irrespective of the agreement of the parties. As to the form of the order which this Court should make, I agreed with counsel for the Receivers that it is appropriate that an express direction in those terms be included in the order. In many ways, such a direction is not necessary for the scheduled draft order already includes, as I have pointed out, reference to a direction in those terms as sought being granted. However, given that all of the other orders are dealt with twice in the sense of being referred to as being granted by reference to the notice of motion (with or without variation) and, then dealt with again by setting out the text of the order, again with or without such variations, it seemed to me to be preferable, as a matter of form and for the avoidance of any possible confusion, that the direction concerning non-privileged documents being made available to IBRC should be treated in the same way. In so doing, this Court is not varying the settlement reached between the parties. Rather this Court is putting into a form which this Court considers acceptable the undoubted substance of what was agreed between the parties. While the belated agreement as to form takes some of the controversy away, the form of the order is, as already pointed out, a matter for the Court. 6 Conclusions 6.2 That draft will include an express direction which is in the terms of para. 4 of the original High Court notice of motion.
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