Supreme Court of Ireland Decisions
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Cite as: [2015] IESC 14
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Judgment
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THE SUPREME COURT [Appeal No. 403/2013] Denham C.J. Murray J. Hardiman J. MacMenamin J. Laffoy J. IN THE MATTER OF THE BANKRUPTCY ACT 1988 AND IN THE MATTER OF A PETITION FOR ADJUDICATION OF BANKRUPTCY OF THE APPELLANTS BRIAN AND MARY PATRICIA O’DONNELL BETWEEN BRIAN O’DONNELL AND MARY PATRICIA O’DONNELL RESPONDENTS/APPELLANTS AND THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND PETITIONER/RESPONDENT Judgment of Ms. Justice Laffoy delivered on 25th day of February, 2015
Appeal and its background 2. The procedural steps in the High Court which led to the orders made on 2nd September, 2013 were as follows:
(b) Each of the petitions was verified by a verifying affidavit sworn by Richie Boucher (Mr. Boucher), a director of the petitioner. Further, each was grounded on an affidavit of debt sworn by Mr. Boucher, wherein it was averred that each of the appellants was indebted to the petitioner in the sum of €71,575,991.29 plus interest at the rate of 8% per annum from 12th December, 2011 on foot of a judgment obtained in the High Court on 12th December, 2011 in proceedings in the High Court Commercial (Record No. 2010 No. 6100S) between the petitioner, as plaintiff, and the appellants, as defendants. It was further averred that each of the appellants had within three months before the presentation of the petition committed an act of bankruptcy within the meaning of s. 7(1)(f) of the Bankruptcy Act 1988 in respect of the said sum, details of which were outlined. (c) Prior to the presentation of the petitions, both appellants had on 27th March, 2012 presented petitions to the High Court of Justice of England and Wales asking for bankruptcy orders to be made against them on the basis that the centre of main interests of each of them was at that time within the jurisdiction of the courts of England and Wales. The hearing of the bankruptcy proceedings initiated by the petitioner in the High Court was adjourned by agreement of the parties pending the outcome of those proceedings. Following a hearing over seven days, judgment was delivered in the High Court of Justice by Newey J. on 21st December, 2012 ([2012] EWHC 3749 (Ch)), wherein it was held (at para. 56) that the centre of main interests of the appellants as at 27th March, 2012 was in this jurisdiction and not in England. Accordingly, by orders dated 21st December, 2012 the petition of each of the appellants was dismissed. Following dismissal, by orders dated 6th March, 2013, by Newey J. of applications by the appellants to review the orders of 6th December, 2012, further applications by the appellants to the Court of Appeal (Civil Division) of England and Wales for permission to appeal against the orders of 21st December, 2012 and 6th March, 2013 were refused by judgment delivered on 26th June, 2013 by Sir Terence Etherton C ([2013] EWCA Civ 956.). (d) Following the presentation of the petitions in the High Court, the bankruptcy proceedings had been the subject of case management in the Bankruptcy list in the High Court. It became apparent that the appellants were disputing the petitioner’s contention that the centre of main interests of each of them was in this jurisdiction when the petitions were presented. In accordance with the directions of the High Court the following evidence was put before the High Court on that issue: (i) an affidavit sworn by Mr. O’Donnell on 10th June, 2013, in which the facts on which the appellants were relying as demonstrating that the centre of main interests of each was in England at the relevant date were averred to, (ii) an extensive and comprehensive replying affidavit sworn on 27th June, 2013 by Des Hanrahan (Mr. Hanrahan), an official of the petitioner, on behalf of the petitioner, which, inter alia, addressed the averments contained in Mr. O’Donnell’s affidavit and which was so extensive that the affidavit and exhibits on a rough estimate ran to about 1,700 pages, (iii) an affidavit sworn on 26th June, 2013 by Declan Byrne (Mr. Byrne), a director of Shale Construction Limited, which was a creditor of the appellants, which affidavit was filed on behalf of the petitioner. No other affidavit evidence was before the High Court dealing with the issue of the centre of main interests of the appellants. In particular, the appellants did not file any affidavit in response to Mr. Hanrahan’s affidavit. At the hearing in the High Court counsel for the petitioner submitted a document in tabular form entitled “Timeline of Relevant Dates December 2011 to July 2013”. It is clear from the transcript of the hearing in the High Court that, having been given an opportunity by the Court overnight to consider that document and to agree or disagree with its contents, counsel then acting for the appellants informed the High Court that the contents of that document had been agreed overnight. The trial judge, as he was entitled to do, had regard to that document. (e) The appellants did not at any time seek to adduce oral evidence on the hearing of the petition, although it was made clear in the course of the case management process that it was open to them to do so. Nor did the appellants seek to cross-examine Mr. Hanrahan on the replying affidavit sworn by him on 27th June, 2013, although it was also made clear that it was open to either side to cross-examine the other side’s deponent or deponents. Similarly, the petitioner did not seek to cross-examine Mr. O’Donnell on the affidavit sworn by him on 10th June, 2013. (f) The petitions were heard in the High Court on the affidavit evidence by Charleton J., who delivered judgment on 23rd August, 2013 ([2013] IEHC 395). 3. In his judgment, Charleton J. identified six questions for determination on the hearing of each of the petitions. 4. The first question was formulated as follows:
5. Charleton J. identified two questions for determination in relation to the appellants’ centre of main interests and formulated them as follows:
(3) if the centre of main interest has changed from Ireland to England is it ascertainable by creditors;.”
Grounds of appeal 7. In short, each of the six grounds of appeal relied upon by the appellants in their amended notice of appeal relates to the determination of the trial judge that the centre of main interests of each of the appellants at the relevant date was in Ireland, which it is contended is wrong in law and on the facts. While that is the core contentious issue on the appeal, having regard to the conduct of the appeal, it is appropriate to address the question whether there was controversy in the High Court as to on which of the parties, whether the petitioner or each of the appellants, the onus of proving that the centre of main interests of each of the appellants was in this jurisdiction when the relevant petition was presented to the High Court lay. Having read the transcript of the proceedings in the High Court and the written submissions from each side, it is clear that each side presented a different argument as to where the onus of proof lay. The position adopted by counsel who appeared on behalf of the appellants in the High Court was that the onus of proving that, at the relevant dates, the centre of main interests of the relevant petitioner was in this jurisdiction lay on the petitioner. Counsel for the petitioner, on the other hand, submitted that the High Court was bound by the decision of the Courts of England and Wales and that, as of 27th March, 2012, the centre of main interests of the appellants was not within the jurisdiction of the Courts of England and Wales but was in this jurisdiction and that it was for the appellants to adduce evidence to show that the centre of main interests of each had changed between 27th March, 2012 and 1st June, 2012 in the case of Mr. O’Donnell and 27th March, 2012 and 7th June, 2012 in the case of Mrs. O’Donnell. As will be outlined later, Charleton J. rejected the first limb of that argument, holding that he was not bound by the decision of Newey J. On the appeal, the petitioner did not pursue the second limb. 8. When the matter was initially before this Court on 23rd July, 2014, counsel who was then acting for the appellants, but who had not acted for them in the High Court, submitted that the judgment of the High Court had wrongfully placed the burden of proof on the appellants, rather than on the petitioner, in circumstances where, as a matter of law, the burden of proving that the centre of main interests of each of the petitioners at the relevant date was borne by the petitioner. At that hearing, counsel for the petitioner informed this Court that the question where the burden of proof lay was not an issue in the High Court. On the basis of the transcript of the hearing in the High Court, I consider that he was mistaken on that. Similarly, I consider that he was mistaken when he told this Court at the hearing on 22nd January, 2015 that there was no controversy as to where the onus of proof lay in the High Court, which Mr. O’Donnell, by reference to the transcript, sought to contradict in reply. However, the controversy as to what was argued in the High Court is not of relevance to the determinations this Court has to make. In the written submissions filed on behalf of the petitioner on the appeal the assertion of the appellants that “. . . the proper application of the burden of proof in an application for bankruptcy is on the Petitioner and it is a matter for the Petitioner to establish, on the balance of probabilities, that the [bankrupts’] COMI was in Ireland” was quoted. It was then stated that, as a proposition of law, that assertion was correct, but that there was no basis for the assertion that Charleton J. departed from that fundamental principle. Accordingly, on the hearing of the appeal, there was consensus that it was the petitioner who bore the burden of proving that the centre of main interests of each of the appellants was in this jurisdiction at the relevant date. Therefore, the only issue for this Court, in relation to the burden of proof, is whether the trial judge applied it correctly. 9. On the initial hearing of the appeal counsel for the appellants stated that the exposition of the law in the judgment of the High Court was uncontroversial. It was the manner in which the law was applied in the High Court which was controversial, he submitted. I understand that to mean that the appellants were satisfied that, as a matter of law, Charleton J. identified the correct legal principles and the correct test as to determining where the centre of main interests of each of the appellants was at the relevant date. Accordingly, the basis of the appellants’ appeal is that the trial judge misapplied the rule that the burden of proof lay on the petitioner and that he also misapplied the legal principles applicable to, and the test for, determining the centre of main interests of a debtor to the facts before the High Court. Before considering the appellants’ argument in support of that proposition, the legal principles identified by the trial judge as to identifying where the centre of main interests of a debtor is at a particular time will be outlined. Identifying a debtor’s centre of main interests: legal principles
13. In supplemental submissions filed on behalf of the petitioner for the purposes of the appeal, it was suggested that the trial judge, in dealing with the centre of main interests issue, did not deal in detail with the case law and that he referred only to the decision in Irish Bank Resolution Corporation v. Quinn. That is not strictly speaking correct. In paragraph 27, he also referred to the decision of the Court of Justice of the European Union in Case C - 396/09 - Interedil, stating that the Court -
14. Moreover, in the paragraphs from the Interedil judgment cited by the trial judge, there are references to the judgment of the European Court of Justice in Case C - 341/04 Eurofood IFSC Ltd. As particular emphasis was placed by counsel for the petitioner on paragraph 33 of that judgment, which is cited and paraphrased in the Interedil case, it is appropriate to quote it. It stated:
15. Counsel for the petitioner also pointed to an elaboration of the last sentence in the passage from the Virgós- Schmidt report quoted earlier contained in the judgment of Deeney J. in Irish Bank Resolution Corporation v. Quinn, an authority specifically cited by the trial judge. Having quoted paragraph 75, Deeney J. stated (in para. 20):
‘For individuals, if the debtor is engaged in an independent business or professional activity, the centre of main interest will normally correspond to the State where he has his business or professional centre (i.e. his ‘professional domicile’), provided that it is business or professional activity that is at the root of the insolvency. In other cases is will be the individual's habitual residence.’” 16. Although, in the context of considering where the centre of main interests of each of the appellants was at the relevant dates, the trial judge did not cite all of the authorities to which he had been referred by the parties and did not quote all of the passages from those authorities relied on by the parties, it is quite clear from his judgment that he properly identified the legal principles applicable to determining where the centre of main interests of a debtor is for the purposes of the application of the Insolvency Regulation. Indeed, as has been noted, counsel for the appellants did not take issue with his exposition of the legal principles, but rather took issue with the manner in which he applied them. 17. It is recorded by Charleton J. in his judgment (at para. 36) that it had been argued, obviously on behalf of the petitioner, as the transcript confirms, that “the High Court in Ireland is bound by the final and conclusive judgment in England and Wales as to the same facts by Newey J. that the centre of main interest of the debtors as of the 27th March, 2012 was Ireland”. Charleton J. stated that he could not agree, thus rejecting that argument. That the petitioner did not appeal against that ruling probably explains why the petitioner adopted a different approach on the appeal in relation to the burden of proof than it had adopted in the High Court. 18. It is also important that it be emphasised that Charleton J. also stated (at para. 36):
19. Before considering how the trial judge applied the legal principles to the facts, I consider it would be useful to outline the evidence on the centre of main interest issues put before the Court by the appellants in Mr. O’Donnell’s affidavit sworn on 10th June, 2013 and also to outline the approach adopted in the replying affidavit of Mr. Hanrahan.
Facts averred by Mr. O’Donnell
(b) At the time of the presentation of the petitions to the High Court they did not “own any residential property in Ireland”. Specific reference was made to “two Irish residences”, one in County Galway and one in Dublin, of which possession had been taken by the petitioner in March 2011 and which were subsequently sold by the petitioner, the sale of the Dublin property having been completed on 6th July, 2012 and the sale of the County Galway property having been completed on 25th September, 2012. (c) During the year 2012 Mr. O’Donnell spent five days in Ireland and Mrs. O’Donnell spent four days in Ireland and the purpose of those visits was to appear in the High Court in response to a direction to attend for examination in aid of execution in the High Court Commercial proceedings. The appellants only spent four days in Ireland in 2013. The purpose of that visit was stated to be “legal preparation for multiple cases” taken by the petitioner against the appellants and their family. (d) There was extensive media coverage in Ireland and elsewhere of their petitions to the Courts of England and Wales for bankruptcy and of the hearings in the High Court in London, it being suggested that, even by “taking cursory notice of current affairs”, the asserted fact that their centre of main interests was in the United Kingdom would have been “reasonably ascertainable” by their creditors, including the petitioner. (e) As part of the process in the Courts of England and Wales, HM Courts and Tribunals Service wrote to all creditors, including, inter alia, the petitioner and Shale Construction Limited, on 30th March, 2012. Further, the appellants had informed their creditors of their “London residential and business address in January 2012”. However, it was disputed that they informed Shale Construction Limited. (f) Mr. O’Donnell’s “business interests” were in England. He had no business in Ireland “other than a passive 50% in Merchants Arch Wellington Quay Dublin 2 which is subject to a cash sweep in favour of IBRC”, over which asset he understood that “IBRC” intended to appoint a receiver, and from which he had “earned nothing for at least 5 years”. (g) Mr. O’Donnell was not a shareholder, director or officer of any Irish company. (h) Mr. O’Donnell did not have a current solicitor’s practising certificate nor did he have one at the time of presentation of the petitions to the High Court. He had retired from practice in 2011. According to the agreed “Timeline” which was before the High Court, on 1st February, 2012 Mr. O’Donnell applied “to the Law Society of Ireland for a practicing Certificate for the practice year 2012”. Further, on 6th February, 2012 Mr. O’Donnell informed “the Law Society of Ireland that he was winding down his solicitor’s practice, and his application for a practicing Certificate was not fully processed”. (i) Various matters were averred to in relation to the appellants’ day to day living and to their living expenses: that Mr. O’Donnell paid his taxes and national health contributions in England and that he had submitted tax returns to HMRC for the assessment year 2011 - 2012, the exhibited tax returns having been filed on 29th January, 2013; that both appellants have U.K. driving licences which are dated 15th February, 2012, and neither has an Irish driving licence; that they have reserved graves in London; that they are organ donors in the United Kingdom since 29th February, 2012; that they are library cardholders in London since January 2012; that the appellants did not have operational bank accounts in Ireland; that they are both on the electoral register in England since 23rd March, 2012 and that they are not on the electoral register in Ireland; and that they attend a Medical Centre in London and have done so since 20th January, 2012. A vast range, over seven hundred, documents, such as receipts, were exhibited to corroborate those averments. (j) The bankruptcy proceedings initiated by the petitioner in this jurisdiction were served on the appellants in London and correspondence by the petitioner and its solicitors, Arthur Cox, was sent by mail and courier to the appellants’ former address in London and subsequently to their current address in Kent. In relation to those averments, it is to be noted that it is not in dispute, and indeed it was averred to by Mr. Hanrahan in his affidavit, that the appellants moved to London on 29th December, 2011. Accordingly, there is consensus that they were physically located in England during the first five months of 2012 and that this was known to the petitioner and its solicitors. Indeed, the petitioner, on its own application, was joined as a party in the appellants’ bankruptcy proceedings in the High Court of Justice in London. (k) There was a general averment by Mr. O’Donnell that since 2011 €610,000,000 had been realised from “companies which were within our control and part of our business”, “our” obviously referring to both appellants, by financial institutions. There were also slightly more specific averments that the petitioner had sold a property in London and a property in France, receiving approximately €41,500,000 from the sales, and had realised securities it had held over “an Irish portfolio” of properties. (l) Having averred that he did not have “any economic activities in Ireland”, Mr. O’Donnell averred that the only economic activity he had in the first five months of 2012 was acting as a consultant for a company, Kennor Advisory Limited, identified by Mr. Hanrahan in his replying affidavit as a company registered in the British Virgin Islands, in managing a property at Canary Wharf in the City of London, for which he received STG £19,000 per quarter. However, in addition, he had been working on a book of his business experiences and had been seeking consultancy assignments in the real estate industry in the United Kingdom. 21. The position of the appellants is that Mrs. O’Donnell’s centre of main interests is the same as Mr. O’Donnell’s centre of main interests. At the most recent hearing in this Court on 22nd January, 2015, Mr. O’Donnell confirmed that.
Replying affidavit of Mr. Hanrahan
(b) discovery made pursuant to an order for discovery made in the High Court Commercial proceedings on 25th April, 2012, and (c) the bankruptcy proceedings in the High Court in London, including facts which emerged from the cross-examination of Mr. O’Donnell in those proceedings, the relevant transcript extracts being quoted and exhibited. High Court judgment: application of legal principles to the facts
25. The decision of the Court of Appeal of England and Wales in Shierson v. Vlieland-Boddy [2005] 1 WLR 3966 had been the subject of submissions in the High Court and, indeed, was referred to in the judgment of Charleton J. in the context of the first question addressed in the judgment - the relevant date for adjudicating the centre of main interests of a debtor. In that context, Charleton J. quoted the entirety of para. 55 of the judgment, in which Chadwick L.J. outlined his conclusions from (1) to (5). What was stated by Chadwick L.J. at (5), which was quoted in part by both sides in their written submissions on the appeal, is of particular relevance to the issue now being considered. Chadwick L.J. stated:
26. Charleton J. then went on (in para. 31) to summarise the evidence before him in relation to property and other transactions related to the appellants. This went considerably beyond the very limited information which was put before the Court in Mr. O’Donnell’s affidavit, as summarised earlier. What is stated in that paragraph of the judgment properly and accurately reflects the uncontradicted facts as deposed to by Mr. Hanrahran, as will be demonstrated by reference to a number of examples, focusing on the appellants’ interests in, and connection with, this jurisdiction at the relevant dates. 27. The first example illustrates how the appellants’ evidence in relation to their property in Ireland was amplified in the affidavit of Mr. Hanrahan. Apart from the “two Irish residences” identified by Mr. O’Donnell, Mr. Hanrahan averred that the appellants personally owned a number of properties in Ireland and interests in other properties at the relevant dates. The fact that, as regards some of the properties, a receiver may have been appointed over them by a creditor or a mortgagee before the relevant dates did not, as averred to by Mr. Hanrahan, create any change in the ownership of the property. It was not the case, as submitted by counsel for the appellants when the matter was first before the Court, that the properties outlined by Charleton J. were merely “remnants” of the appellants’ past and thus irrelevant. The trial judge was entitled to have regard to the appellants’ ownership thereof in adjudicating on where the centre of main interests of each of the appellants was at the relevant date. 28. Another fact recorded by Charleton J. in para. 31 related to a dwelling house known as Gorse Hill, Killiney, County Dublin. Charleton J. stated:
29. The trial judge addressed some of the matters which had been highlighted by Mr. O’Donnell in his affidavit in relation to what I have referred to as the appellants’ day to day living and, in doing so, he had regard to the evidence contained in Mr. Hanrahan’s affidavit. He stated (in para. 32):
30. Of particular significance is that, in his affidavit, Mr. Hanrahan clarified Mr. O’Donnell’s averment that he was not a shareholder, director or officer of an Irish company and averred that, in accordance with what was recorded in the Companies Registration Office (CRO) as at 1st June, 2012 and 7th June, 2012, the appellants were recorded as being directors of a number of Irish registered companies. Mr. Hanrahan has set out the relevant information in tabular form in his affidavit, from which it is clear that, in the case of four Irish registered companies Mr. O’Donnell and Mrs. O’Donnell were both directors and Mr. O’Donnell was secretary and, in the case of another Irish registered company, Mr. O’Donnell was a director and secretary. The table indicates that there were filings in the CRO after the relevant dates, the earliest having been filed on 20th June, 2012 and the latest on 11th July, 2012, recording the resignation of each of the appellants from those offices, the resignation in all cases going back to dates prior to the relevant dates. In some cases the date of the resignation was recorded as going back to 7th December, 2011 and in others to 28th January, 2012. In his judgment (at para. 34) Charleton J. stated that the Court must take into account the directorships which each of the appellants held and which were listed in the CRO. He listed the five companies referred to in Mr. Hanrahan’s affidavit. He then stated that counsel, which I assume means the counsel who appeared for the appellants in the High Court, had been instructed that the “companies are dormant and did not trade”. He continued:
31. Although not specifically alluded to in the judgment of Charleton J., another factor which would have had a bearing on the ascertainment by a creditor or a potential creditor of the location of the centre of main interests of each of the appellants at the relevant date was the fact, as deposed to by Mr. Hanrahan, that the appellants had registered Vico Capital as a partnership pursuant to the Registration of Business Names Act 1963, which remained registered, with the address of the appellants being given as Merrion Square Dublin, until 12th November, 2012. 32. In a similar vein to his observations quoted at para. 30 above, Charleton J. observed as follows (in para. 34):
33. Some of the other matters which I have characterised as relating to day to day living were also addressed by Charlton J. in his judgment (at para. 34). He stated:
34. Although there was controversy between the parties in the High Court as to where the burden of proof as to the requirements which had to be complied with before the Court could accede to the petitioner’s application to have the appellants adjudicated a bankrupt, including that the centre of main interests of the appellants at the relevant dates was in this jurisdiction, lay, the trial judge did not make any express statement as to where the burden of proof lay and, in particular, in his judgment he did not expressly state that the burden of proof lay on the petitioner. However, nothing could be clearer from the first sentence of Article 3(1) of the Insolvency Regulation, which he quoted. It was obviously open to the trial judge to find that the activities he listed were equivocal as to the intention of the appellants in the relevant context which, on the basis of what was averred to by Mr. O’Donnell in his affidavit, was his assertion that the appellants were habitually resident in the United Kingdom and that their centre of main interests was the United Kingdom, an inherent element of which was an intention on their part to permanently reside in the United Kingdom. The words in the last sentence of the passage quoted above, if they stood alone, might be interpreted as indicating that the trial judge was of the view that the appellants had to establish, as a matter of probability, that their centre of main interests was in the United Kingdom and not in this jurisdiction. However, that sentence cannot be viewed on its own; it must be viewed in the context of the judgment as a whole. In so doing, one cannot conclude that the trial judge decided the centre of main interests issue on the basis that it was for the appellants to prove that it was elsewhere than in this jurisdiction. 35. In the final sentence of para. 34 and immediately before expressing his finding having “had regard to all of the evidence”, which is set out in para. 35 and has been quoted earlier, the trial judge stated:
Role of this Court on the appeal 37. There have been recent cases in which this Court has had to consider the implications of issues of evidence having arisen, where the Court is trying the matter on affidavit evidence and the deponents have not been cross-examined. A stark warning was given to litigants by this Court in Boliden Tara Mines v. Cosgrove [2010] IESC 62 as to why that type of situation should be avoided. Hardiman J. stated (at para. 43):
38. More recently, in IBB Internet Services Ltd. v. Motorola Ltd. [2013] IESC 53, the potentially unsatisfactory evidential situation addressed in Boliden was revisited. Having quoted the passage from the judgment of Hardiman J. quoted above, Clarke J. (at para. 7.2) quoted the following observations he had made in McInerney Homes Limited (No. 2) [2011] IEHC 4:
39. In the IBB case, Clarke J. made the foregoing remarks in the context of considering the role of cross-examination on an interlocutory application, being an application for security for costs. Of particular relevance for present purposes is a point he made (para. 7.3) where he stated:
40. The implications of the absence of cross-examination where there is conflicting evidence on affidavit is also considered in Delany and McGrath on Civil Procedure in the Superior Courts (3rd Ed.) at para. 20 - 91 where it is stated:
Assessment of the nature and quality of the evidence before the High Court
42. To a large extent Mr. Hanrahan’s affidavit elaborated on facts which had been set out in very general terms in Mr. O’Donnell’s affidavit. An example of that is the manner in which Mr. Hanrahan addressed the averment by Mr. O’Donnell that he was not a shareholder, director or officer of any Irish company. While that averment has not been shown to have been untrue when Mr. O’Donnell swore his affidavit on 10th June, 2013, without elaboration it would have been misleading. However, Mr. Hanrahan gave a full picture of what was recorded in the CRO in relation to the involvement of Mr. and Mrs. O’Donnell with five Irish registered companies at the time the petitions were presented, clearly demonstrating that a search by a creditor or a potential creditor in the CRO on 1st June, 2012 or 7th June, 2012 would have disclosed that the appellants were directors of those companies. On the other hand, Mr. Hanrahan did contradict some averments by Mr. O’Donnell, for example, that he did not have any economic interests and did not own any residential property in Ireland. As has been outlined, Mr. Hanrahan identified a number of properties in this jurisdiction which were jointly owned by the appellants and which remained in their ownership, notwithstanding that receivers had been appointed. 43. As regards the evidential conflicts which emerged from the affidavits which were before the High Court, it is difficult to understand why neither of the parties sought leave to cross-examine the other’s deponent, particularly against the background that, in essence, a similar issue had been the subject of a seven day hearing in the High Court in London. Nonetheless, the crucial question for this Court is whether there was sufficient uncontradicted credible evidence before the High Court which supported the findings made by the trial judge on the material questions to be determined by him, namely, whether the centre of main interests of each of the appellants at the respective date of the presentation of the petition against him or her was within this jurisdiction, which he found was the case. Conclusion 45. Further, there was ample uncontradicted evidence before the High Court on the basis of which it was open to the trial judge to conclude that a reasonable creditor or potential creditor who sought, as of the relevant date, to ascertain where the centre of main interests of either appellant was, would form the view that it was in this jurisdiction. The mere fact that the appellants themselves initiated bankruptcy proceedings in the United Kingdom, which were ultimately unsuccessful, asserting that their centre of main interests was at the time of the initiation of those proceedings in the United Kingdom, and that their action attracted a certain level of media coverage, cannot be seen as countervailing the facts which were established as being in the public domain in relation to the appellants’ business interests and economic activities at the relevant dates. These facts included: the appellants’ indebtedness to the petitioner in this jurisdiction; the properties owned by and connected with the petitioners in this jurisdiction; the registration of their business partnership under the Registration of Business Names Act 1963; and the record of their directorship of Irish business companies in the CRO. All of those matters were known or ascertainable at the relevant dates. 46. Accordingly, I am satisfied that the trial judge was correct in his conclusion that the centre of main interests within the meaning of the Insolvency Regulation of each of the appellants was within this jurisdiction when the petitioner presented the relevant petition to the High Court for the adjudication of that appellant as a bankrupt.
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