THE SUPREME COURT
[Appeal Nos: 148/2010
149/2010]
McKechnie J. MacMenamin J. Finlay Geoghegan J. Appleridge Developments Limited
Plaintiff/Respondent
Defendant/Appellant
Judgment of Ms. Justice Finlay Geoghegan delivered on the 23rd day of May, 2019.
1. The appellant, Ms. Ní Ghruagain, seeks to appeal two orders of the High Court (McGovern J.) made on 12 April 2010, in special summons proceedings [2008 No. 1069 Sp] issued by the plaintiff, Appleridge Developments Limited ("Appleridge"), on 11 November 2008.
2. The special summons proceedings sought declarations that, by virtue of two judgment mortgages stated to have been registered against the interest of the appellant in the lands and premises comprised in Folios 13018F and 12141, County Dublin on 7 December 2005, to secure (1) the repayment of €66,479.11, being the amount of a judgment representing taxed costs pursuant to an order of the Court dated 13 December 2002 and a certificate of taxation of 21 December 2004, in judicial review proceedings 2001 No. 700JR and (2) the repayment of €31,136.06, representing taxed costs on an order of the Court dated 19 June 2003 and a certificate of taxation dated 21 December 2004 in the same proceedings, together with interest in respect of each sum, the principal moneys secured thereby stood well charged on the aforementioned lands. The summons also sought, inter alia , an order for sale in default of payment.
3. The first order made by the High Court on 12 April 2010 and appealed against was an order declaring each of the judgments well charged and orders in default of payment for the sale of the lands identified as sought on the special summons.
4. The second order made by the High Court on 12 April 2010 was an order refusing reliefs sought by the appellant on a motion issued by her on 13 November 2009 in the special summons proceedings.
Background Facts and Prior Proceedings
5. The background facts and prior proceedings and procedural steps taken by the parties in different sets of proceedings prior to the hearing of the appeal in which this judgment is delivered are complex and require to be set out in some detail. In 2001, the appellant applied for leave to commence judicial review proceedings against An Bord Pleanala, to which Appleridge was a notice party. Leave was sought for the purpose of quashing certain decisions of An Bord Pleanala in relation to a proposed development by Appleridge.
6. By order of 13 December 2002, leave was refused by the High Court (Murphy J.) and Appleridge was granted an order for costs against the appellant, such costs to be taxed in default of agreement.
7. The appellant then applied for leave to appeal to the Supreme Court and for a reference pursuant to Article 234 of the EC Treaty. By order of 19 June 2003, the High Court (Murphy J.) refused both applications and a further order for costs was made in favour of Appleridge against the appellant. In those judicial review proceedings, the appellant was represented by Casey & Co Solicitors.
8. Bills of costs were served on behalf of Appleridge on Casey & Co. Solicitors for the appellant and a date was fixed for taxation of 9 November 2004. In October 2004, the appellant became aware that Appleridge was struck of the Register of Companies and brought it to the attention of her solicitor.
9. On 9 November 2004, when the taxation was listed for hearing there was no appearance by the appellant and it did not proceed, it appears by reason of the fact that the cost accountant for Appleridge was not in a position to proceed. The appellant contends that she had handed into the Office of the Taxing Master a document indicating that Appleridge was dissolved and that she had been informed by Taxing Master Moran that if she did that, the taxation hearing would not proceed.
10. On 10 November 2004, the taxation hearing took place. It now appears on the evidence before this Court that the cost accountant for Appleridge, had been informed by the solicitor for the appellant that the appellant intended to appear and also had been made aware of the fact that Appleridge was struck off the Register of Companies. The taxation was heard by Taxing Master Flynn in the presence of the cost accountant for Appleridge and there is no evidence that he was informed of either of those facts.
11. On 16 December 2004, Appleridge was restored to the Register of Companies by the Registrar of Companies.
12. On 21 December 2004, certificates of taxation issued in respect of the orders for costs made on 13 December 2002 and 19 June 2003.
13. On 30 November 2005, affidavits of Ivon Keeling, company secretary of Appleridge, sworn on 8 November 2005, were filed in the Central Office of the High Court registering each of the judgments as a judgment mortgage over the two folios in Co. Dublin already identified.
14. The said folios indicate that on 7 December 2005, the judgment mortgage affidavits were filed on each of the folios. The registrations are stated to have been completed on 21 December 2005.
Special Summons Proceedings
15. Appleridge issued the special summons already referred to on 11 November 2008. It was grounded on an affidavit of Mr. Keeling, sworn on 14 November 2008. In that affidavit, Mr. Keeling refers to the High Court orders for costs of 13 December 2002 and 19 June 2003. He then states in respect of each that "on the 21st day of December, 2004 the Taxing Master… taxed the Plaintiff's costs" and refers to the certificates of taxation, both dated 21 December 2004, and the amount of each. He also exhibits copies of the affidavits sworn by him to register each judgment as a judgment mortgage, which are stamped as filed in the Central Office on 30 November 2005. Finally, he exhibits copies of the Folios 13018F and 12141, County Dublin, which show the registration of the judgment mortgage affidavits of Mr. Keeling filed on 7 December 2005 and that the appellant is registered as the full owner of each. In the case of Folio 13108F, it is in the English version of her name as deposed to by Mr. Keeling. It is not in dispute that the appellant is the registered owner of each of the folios. Mr. Keeling also deposes to the fact that the amounts due on the judgments remain unpaid and that a sale is required to discharge the sums due to Appleridge.
16. The next step in the proceedings was an application for substituted service, which was grounded on an affidavit of Sharon Devine, solicitor for Appleridge, and sworn on 26 February 2009. She set out the attempts made to serve the appellant at an identified property, at which she had been informed by a private investigator that the appellant was believed to be residing. On 2 March 2009, an order for substituted service by ordinary prepaid post was made by the High Court (Peart J.).
17. On 23 March 2009, the appellant entered an appearance to the special summons. The appellant swore one affidavit in response to the summons on 15 May 2009. The appellant deposed to the fact that Appleridge was struck off by the Companies Registration Office on 19 December 2003 for non-filing of returns since its incorporation on 5 April 2000 and that it filed the required returns on 16 December 2004.
18. She then states that an application to tax costs was made to the Office of the Taxing Master by Appleridge, with taxation by Lords Legal Cost Accountants, and a date of 9 November 2004 was assigned for hearing. She then deposes that the relevant documents had been sent to Greg Casey Solicitors and that she ascertained that Appleridge was then dissolved. She then states at paras. 8, 9 and 13-16:-
"8. I duly notified the Office of the Taxing Masters' where I spoke to the Taxing Master for the list, Master Moran and the list was for 9th November, 2004 hearing and again was assured that the hearing would not go ahead as the applicant company was dissolved and he requested that I forward to his clerk proof of this from the Companies Office.
9. I received a printout document from the Companies Office and gave it to the Taxing Masters' Office and was assured that the hearing would not now take place. See Exhibit A Companies' Office Report dated 13 October, 2004.
…
13. That I later spoke to the Taxing Masters' office and was assured the no hearing of taxation of costs for Appleridge Developments Limited took place on 9th November, 2004.
14. That I confirmed with the Companies Office that the company Appleridge Developments Limited had filed the required returns within the year of dissolution on the 16th December, 2004 and received copies of all filed returns then and since and also a Form H, as no records are kept of notices so there is no paper trail. See Exhibit B: Companies Office Form H1.
15. I had no notice of any of these matters again until now.
16. That I have since this matter was adjourned on March 10th, 2009, have seen the Receipts Book in the Taxing Masters' Office and an entry of 9th November for taxation of costs against Treasa Ni Ghruagain for An Bord Pleanala Brian O'Brien Swords as Solicitor on record and heard by Master Flynn."
19. The special summons appears to have been transferred to the Chancery Special Summons list in June 2009 and later, a notice of motion was issued by the appellant on 30 November 2009. The appellant sought, inter alia , an order to lift the judgment mortgages and an order to allow a counterclaim to be filed for damages and compensation. She also sought additional orders, none of which are relevant to the appeal and could never have been granted in the proceedings.
20. That motion was grounded on an affidavit of the appellant sworn on 13 November 2009. In that affidavit, the appellant set out a number of matters in relation to the judicial review proceedings which she had attempted to commence in 2001/2002.
21. She then refers to the statement by Mr. Keeling in his grounding affidavit that "the costs were taxed on 21 December 2004". She points out that this is incorrect and that the costs were taxed on 9 November 2004. She then refers to the dissolution of Appleridge and states, "I would presume that the Applicants were aware of my submission and I presume they delayed collecting the certificate of taxation until they were restored some weeks later two days within the year… It is questionable what representation was made to the Taxing Master on the 9th of November 2004 when the applicants presented…". Having referred to a number of other matters, she then states at paras. 13 and 14 of that affidavit:-
"13. The costs of 66 thousand Euros costs I feel was accumulated by numerous adjournments due to the refusal of Appleridge Limited to accept Service and the adjournments were thus their responsibility. I was not given an opportunity to raise these matters as I was told by the Taxing Master Moran that as no person existed, there would be no taxation of costs for the dissolved company Appleridge Developments Limited.
14. A year later the 34,000 euros, I do not know how these figures were calculated but as mentioned above Mr. Gibbons has been attributed for the transfer of filings for another Judicial Review to this one, with no extra cost though presumably different clients. Again I was not given an opportunity to raise these matters as I was told by the Taxing Master Moran that as no person existed, there would be no taxation of costs for the dissolved company Appleridge Developments Limited."
22. There does not appeal to have been any further affidavit sworn on behalf of Appleridge prior to the hearing of the special summons and the appellant's notice of motion in the special summons proceedings by the High Court on 12 April 2010.
23. The final procedural matter which occurred prior to the hearing on 12 April 2010 was the issue by the appellant of a notice of motion dated 9 April 2010 in the original judicial review proceedings, returnable to 21 June 2010, in which she sought, inter alia , to appeal to the High Court from, inter alia , "the taxation of costs of 9th November, 2004 done in my absence". She also sought to appeal from the substantive judgment of the High Court (Murphy J.) of 13 December 2002 and the order of 19 June 2003 and to have those judgments and orders set aside. That motion was made returnable for 21 June 2010 and was grounded on an affidavit of the appellant. That affidavit refers to the dissolution of Appleridge, the contact, as already set out, which was made with the Office of the Taxing Master and the assurance allegedly given to her that the hearing on 9 November 2004 would not go ahead.
Hearing of 12 April 2010
24. The hearing before the High Court was on the affidavit evidence already set out. It appears there was an application for an adjournment by reason of the notice of motion issued in the judicial review proceedings and that such application was refused. That motion of 9 April 2010 appears to have been later struck out and there is no appeal against that order.
25. Following the lodging of appeals against the two orders made by the High Court on 12 April 2010, in accordance with the then practice, McGovern J. was asked for a note of his recollection of the reasons for which he made the orders granting the well charging orders and orders for sale in default and refusing the appellant's notice of motion in the special summons proceedings. The trial judge has explained that this matter was listed in a list of approximately 60 in the Special Summons list. His recollection was confined to the fact that the "papers were in order and the necessary proofs had been complied with". He also has stated that he refused the motion brought by the appellant seeking various forms of relief, including an order permitting a counterclaim to be filed for damages and compensation and for orders joining various parties, "on the grounds that the proceedings giving rise to the application for a well charging order had long since finished and there appeared to be no legal basis on which the well charging order could be refused". It is also clear from the trial judge's note that he recalled the appellant because she had appeared on a number of occasions representing herself and that the matter had been in the list on several occasions and that the appellant had misrepresented what had been said in court on previous occasions. The appellant was not legally represented at the hearing on 12 April 2010.
Appeals
26. The appellant issued two notices of appeal against each of the orders made by the High Court on 12 April 2010, on 3 May 2010 and 7 May 2010, respectively.
27. The appellant lodged the notices of appeal in person. Notwithstanding, she also included as a ground of appeal "that the reliance by the Court on the judgment of O'Neill J. in the Matter of Amantiss Enterprises Limited (in voluntary liquidation) 1999 No. 197, 1996, No. 10658P and [2000] ILRM 177 was incorrect and has no bearing whatsoever on a situation where the actions of the company are prejudicial to the rights of third parties".
28. The appellant appears to have been unrepresented for a significant period after the appeal was lodged. Appleridge issued a motion to strike out the appeal which was refused and thereafter, submissions from the appellant in person appear to have been lodged on 20 March 2014. The initial submissions on behalf of Appleridge appear to have been lodged on 14 December 2016.
29. The two appeals were listed for hearing before a differently constituted panel of the Supreme Court on 18 January 2017. That hearing was adjourned and the appellant was given an opportunity to apply for free legal representation under the Supreme Court Legal Assistance scheme. Solicitors came on record and counsel were instructed by 8 February 2017. Commencing on that date, there were a series of directions given which permitted the filing of affidavit evidence in this Court and further submissions.
30. The appellant filed an affidavit on 29 May 2017. In that affidavit, she sets out a number of facts in relation to the original judicial review proceedings and seeks to challenge the order for costs made against her in those proceedings. That is not relevant to any issue on these appeals. She refers to the developments in costs protection for applicants such as herself in environmental cases, Directive 2011/92/EU (as amended) of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment ("the EIA Directive") and the fact that legislation giving effect to the obligations that require access to justice at a cost which is "not prohibitively expensive" was only implemented in more recent years. At paras. 19-21, she sets out in some greater detail her contact with the Taxing Master and alleged conversation with Master Moran and the submission to a clerk in the Office of the Taxing Master of the copy of the printout from the Companies Registration Office demonstrating that Appleridge was dissolved. She also deposes that she is a person of limited means, that she purchased her cottage in 1993 and that she is now in fear that it will be taken from her to satisfy a costs order made in the judicial review proceedings and that as a consequence, she will be rendered homeless.
31. Outline submissions settled by counsel were then filed on her behalf, on 4 July 2017. Those submissions were filed in advance of the two affidavits subsequently sworn on behalf of Appleridge. They essentially seek to advance two separate grounds of appeal; first, that the circumstances in which taxation was conducted on 10 November 2004 amounted to an abuse of process, such that no well charging order should have been made by the High Court. Separately and distinctly, they referred to a judgment of this Court making a reference to the Court of Justice of the European Communities pursuant to Article 267 TFEU in Klohn v. An Bord Pleanala & ors. [2017] IESC 11. The submissions contend, by reference to the questions raised by this Court in Klohn , that the EU Directives relied upon, that is, Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice ("Directive 85/337, as amended"), may afford the appellant protection against a well charging order and order for sale in default being made against her on the facts of these proceedings.
32. In response, on behalf of Appleridge, an affidavit of Mr. O'Brien, solicitor, sworn on 26 July 2017, was filed on 7 September 2017. Mr. O'Brien in his affidavit states that the appellant was represented throughout the judicial review proceedings by Mr. Greg Casey, solicitor of Messrs Casey & Co. and that he recalled her being present at hearings on a number of occasions. Specifically, in relation to the taxation of costs he stated at paras. 8, 9 and 10:-
"8. Ms. Patricia Lord of Lords Costs Accountants was instructed by your deponent to prepare Bills of Costs in respect of the costs orders which were made by Mr. Justice Murphy in favour of the Applicant against the Respondent and if necessary to proceed to have the Bills taxed.
9. By letter of 27th October 2004 Ms. Lord advised your deponent that the Bill of Costs and summons to tax had been served on Casey & Company Solicitors and that it was listed for taxation on the 9th November, 2003.
10. By two letters of the 23rd November, 2004 received by me on the 24th November, 2004 Ms. Lord advised me on the results of the taxation of the respective costs orders. She advised that on the 8th November 2004 she telephoned Messrs Casey & Co with a view to establishing whether anyone would be attending the taxation. Ms. Lord further advised that she spoke with Mr. John Casey of that firm who advised that the Respondent herself would be appearing and would be making the case that the Applicant company had been dissolved and that the taxation could not proceed. She further advised that there was no appearance by the Respondent on the 9th November 2004 and as she was not prepared to deal with the taxation that day it was adjourned to the following day when it proceeded".
33. Mr. O'Brien also deposes that, prior to receipt of the letters from Ms. Lord received on 24 November 2004, he was not aware that Appleridge had been dissolved and immediately contacted the company director and accountant, that the outstanding returns were filed on 16 December 2004 and that on 10 December 2004, he sent Ms. Lord a cheque for the stamp duty to take up the certificates of taxation.
34. Outline submissions were filed on behalf of Appleridge on 7 September 2017.
35. Subsequently, on 21 May 2018, the further affidavit of Ms. Devine was filed. Ms. Devine in her affidavit sets out inspections she carried out in May 2009 in the Office of the Taxing Master and information which she sought and received from an official in the Office of the Taxing Master. The effect of the information which she says she received from the Office of the Taxing Master would be to cast some doubt about the veracity of the averments of the appellant in relation to her alleged conversations with Taxing Master Moran and the fact that she left in the printout from the Companies Registration Office.
36. Ms. Devine also refers to information given her by the Property Registration Authority, following inquiries in relation to the sending of four Form 75s "Notice of deposit of Affidavit of Judgment", dated 21 December 2005, sent to the appellant at identified addresses. She then refers to orders of fieri facis in respect of each certificate of taxation received from the Central Office in January 2005 and the fact that they were renewed in October,2006 and March 2008, sent to the Sheriff in April 2008 and returned to her marked "no goods". Finally, she refers to the motion issued by Appleridge to dismiss the appellant's appeals on 10 October 2013 and the fact that, on appearance, the appellant appeared in response and confirmed to Hardiman J. in the Supreme Court that her address was Broadmeadow Cottage, which is one of the addresses referred to in the other averments.
37. The appellant, in her final affidavit sworn on 10 July 2018, makes what are, in substance, a number of submissions in relation to Mr. O'Brien's affidavit and the correspondence exhibited from Ms. Lord. She points out that Ms. Lord does not state whether the issue of the company being dissolved was brought to the attention of the Taxing Master nor what, if any, attempts were made to contact her or her solicitor on 9 November 2004 to tell her/him that the taxation had been adjourned for one day and would proceed on 10 November 2004. At para. 10 of her affidavit, she expressly avers that "I initially became aware that the taxation had proceeded in my absence when I was served with papers by the company seeking to take possession of my property. I had not until then realised that the taxation had concluded". That averment appears to relate to the service of the special summons proceedings on her in March 2009.
Hearing of Appeal
38. Prior to the full hearing of the appeal, the CJEU delivered judgment in Klohn v. An Bord Pleanala , Case C-167/17, ECLI:EU:C:2018:833, on 17 October 2018. Partly in consequence of this, the submissions made by counsel on behalf of the appellant further evolved at that hearing.
39. In summary, the submissions made fall into two parts. Firstly, in reliance upon the judgment of the CJEU in Klohn , it was submitted firstly that the Taxing Master, in November 2004, was obliged to apply the "not prohibitively expensive" principle to the measurement of the costs to be awarded to Appleridge. Secondly, it was submitted that the High Court, in its decision on the special summons application and motion brought by the appellant of 12 April 2010, ought also to have applied that principle, with a consequent effect of refusing to make the well charging orders as sought. I will return to those submissions.
40. The second set of submissions were made independently of any reliance upon the judgment in Klohn or the EU directives referred to therein. The second submission was that, on the facts before this Court now, there was an abuse of process in relation to the taxation of costs in November 2004 and that the High Court judge, in hearing the application on the special summons and the appellant's motion, had a broad equitable jurisdiction which permitted him to refuse the application for the well charging orders or, in the alternative, to permit the appellant to defend the proceedings and seek to have the certificates of taxation set aside. In making these submissions, counsel for the appellant relied upon the alleged breach of fair procedures by the appellant not being present at the hearing of the taxation, the fact that the company was dissolved at the date of the hearing of the taxation, that, on the facts set out in Mr. O'Brien's affidavit, it had to be accepted on behalf of Appleridge that the cost accountant, Ms. Lord, had been informed that the appellant intended appearing at the hearing on 9 November 2004 and that Appleridge was struck off or dissolved, and that there is no evidence that she informed the Taxing Master of either of these facts, as she ought to have done and there is no evidence that she notified the appellant or her then solicitors of the adjournment of the hearing to the following day, 10 November 2004.
41. In response, counsel for Appleridge frankly submitted that he had not considered the impact of the judgment of the CJEU in Klohn but considered that this was not a matter ever raised before the High Court at the hearing on 12 April 2010. In response to the second set of submissions, he relied upon the judgment of Baker J. in the High Court in Barrett v. Leahy [2015] IEHC 734 to submit that in an application for a well charging order, the Court does not have a broad equitable jurisdiction and its jurisdiction is confined to issues concerning the validity of the registration of the judgment mortgage. He submitted that the certificates of taxation were valid and that, even in the event that there had been some breach of fair procedures, the certificates could only be challenged in judicial review proceedings. He submitted they were voidable, as distinct from void, and that in April 2010, when the matter was heard by the High Court, the appellant had not commenced judicial review proceedings, as she ought to have done if she wished to challenge the validity of the certificates of taxation. He submitted that for so long as they remained and had not been quashed by an order of the High Court, the decision reached by the High Court was correct and the appeal should be dismissed. He also relied upon s. 12C of the Companies Act 1982, as amended, and the restoration of Appleridge to the Register of Companies prior to the issue of the certificates of taxation.
42. Counsel for Appleridge accepted, in the course of submissions, that if the appellant had commenced judicial review proceedings seeking to challenge the certificates of taxation in reliance upon a breach of fair procedures, that it might well have been difficult to resist applications to quash the certificates on the facts now set out in the affidavits. However, he submitted that on the affidavits, at very latest the appellant became aware of the registration of the judgment mortgages when served with the special summons proceedings in March 2009 and, despite multiple adjournments between that date and the hearing in April 2010, no application was made by her or on her behalf for leave to issue judicial review proceedings.
Discussion
43. The two orders made by the High Court which are the subject of these appeals were both made in the special summons proceedings in April 2010. Counsel for Appleridge appears to me to be correct in his submission that the jurisdiction of the Court in this type of proceeding is limited and the Court does not have a broad discretion to apply equitable principles. In Barrett v. Leahy , at issue was a judgment mortgage registered pursuant to the Land and Conveyancing Law Reform Act 2009 ("the 2009 Act"). The judgment mortgages the subject of these proceedings were registered prior to the 2009 Act, pursuant to the Judgment Mortgage (Ireland) Acts, 1850 - 1858. Pursuant to those statutory provisions, the judgment mortgage was created by the filing on 13 November 2005 in the High Court Central Office of the two affidavits of Mr. Keeling to register the judgments obtained on 13 December 2002 and 19 June 2003, respectively, on the property and premises of the appellant comprised in Folios 13108F and 12141, County Dublin.
44. The judgment mortgages were registered on the said folios by the filing of the affidavits in the Land Registry, pursuant to s. 71 of the Registration of Title Act 1964 ("the 1964 Act"). Pursuant to s. 71(4) of the 1964 Act, the registration of such an affidavit, in compliance with the section, operates to charge the interest of the judgment debtor, in this instance the appellant, subject to certain specified burdens and unregistered rights which are not relevant to these appeals. That registration which creates the charge on the land is one of a wholly statutory origin. Section 71(4) further provides that upon the registration of the affidavit, "the creditor shall have such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court".
45. Where, as in this case, an application is made for enforcement of the judgment mortgages by having them declared well charged and seeking, inter alia , an order for sale of the property in default of payment, if the Court is satisfied that the judgment has been validly registered as a judgment mortgage against an interest of the defendant in the lands, then the only issues to be addressed relate to the form of order for enforcement.
46. What the appellant wished to challenge before the High Court, and again before this Court, is the amount of the judgments in respect of the costs awarded against her which have been registered as a charge on her property. Her difficulty is that to do this she must set aside the certificates of taxation which crystallised the amounts of the judgments ordered against her in respect of costs by the High Court on 13 December 2002 and 19 June 2003. This could only be done by an application in judicial review proceedings to quash the certificates of taxation. It was not a challenge which the High Court had jurisdiction to entertain in the special summons proceedings, either by way of an objection to granting the order sought or by permitting a defence to be pursued at a future date. At the time of the High Court hearing in 2010 no application for leave to issue judicial review seeking to quash the certificates of taxation had been made.
47. I have also considered whether the fact that at the date of the hearing of taxation Appleridge was dissolved could be considered as a fact which might be said to affect the validity of the judgment mortgages registered on 30 November 2005. My conclusion is that such contention is unsustainable having regard to s. 311A of the Companies Act 1963, as inserted by s. 246 of the Companies Act 1990. That section provides for the restoration of a company to the Register by an application to the Registrar of Companies, made within 12 months after the publication of the notice of striking off. The document exhibited by the appellant indicates that this is the section pursuant to which Appleridge was restored. Section 311A(2) provides:-
"(2) Upon the registration of an application under subsection (1) and on payment of such fees as may be prescribed, the company shall be deemed to have continued in existence as if its name had not been struck off.
(3) Subject to any order made by the court in the matter, the restoration of the name of a company to the register under this section shall not affect the rights or liabilities of the company in respect of any debt or obligation incurred, or any contract entered into by, to, with or on behalf of, the company between the date of its dissolution and the date of such restoration."
48. No application was made, or required to be made, to the court for the restoration of Appleridge. Insofar as the appellant has sought to rely upon the judgment of O'Neill J. in Amantiss and his consideration in that case as to whether or not there was any specific prejudice to a notice party prior to making an order for the restoration of the company, it must be recalled that, unlike in the case of Appleridge, the petition to the High Court in Amantiss was under s. 12 of the 1982 Act and required an order of the Court for the restoration of the company. The section under which Appleridge was restored, s. 311A of the 1963 Act, as amended, gives to such a company who has failed to make returns and been struck off a statutory right to restoration which does not require a court order. Accordingly, that part of the judgment in Amantiss which is of particular relevance is the conclusion reached by O'Neill J. that the words in s. 12, similar to s. 331A(2), "the company shall be deemed to have continued in existence as if its name had not been struck off" as he determined, "have the effect of validating retrospectively all acts done in the name or on behalf of the company during the period between it dissolution and the restoration of its name to the register". I respectfully agree with this conclusion insofar as it applies to s. 311A(2). There is no order of a court for the purposes of subs. (3).
49. It follows from this conclusion that the simple fact that the hearing of the taxation was done whilst the company was dissolved, or any other prior step in the proceedings, was taken whilst the company was dissolved, was validated retrospectively when the company was restored to the register on 16 December 2004. Therefore, the fact that Appleridge was dissolved in November 2004 could not form a basis for invalidating the subsequent registration of the judgment mortgage in reliance upon the certificates of taxation issued on 21 December 2004.
50. Ignoring for one moment the submission that no reliance was placed before the High Court on the "not prohibitively expensive" costs provision in the fifth paragraph of Article 10a of Council Directive 85/337, as amended, before the High Court, I do not consider that those provisions, as interpreted by the CJEU in the Klohn judgment, were applicable to the taxation of costs in these proceedings in 2004 or were applicable to the decisions to be taken by the High Court in the special summons proceedings in 2010.
51. It is correctly accepted that the 2001 judicial review proceedings were the type of proceedings to which Article 10a of Directive 85/337, as amended, applies. The reason for its non-applicability is one of timing. Directive 2003/35/EC, which inserted Article 10a, came into effect on 25 June 2003 and required transposition by Member States by 25 June 2005. Accordingly, it was not in effect at the date of the first High Court costs order of 13 December 2002. It was in effect but did not yet require transposition by Member States by the date of the second cost order of 19 June 2003 and similarly, by the date of the taxation in November/December 2004.
52. One of the questions submitted by the Supreme Court in Klohn to the CJEU was as to whether Article 10a has direct effect. That question was clearly answered by the CJEU, as set out in its ruling that Article 10a "must be interpreted as meaning that the requirement that certain judicial proceedings in environment matters must not be prohibitively expensive which it lays down does not have direct effect".
53. A further question in Klohn related to the obligations imposed on a Member State after the time limit to transpose Article 10a had expired, i.e. after 25 June 2005. That was relevant to the issues in Klohn . Ireland inserted s. 50B in the Planning and Development Act 2000 by s. 33 of the Planning and Development (Amendment) Act 2010, which commenced upon 28 September 2010, in order to give effect to Article 10a of Directive 85/337, as amended. In the case of Klohn , the order of the High Court that Mr. Klohn pay the costs incurred by An Bord Pleanala was made on 6 May 2008. In the course of taxation in 2010, he sought to rely, inter alia , on Article 10a to submit that the costs awarded should not be prohibitively expensive. The Taxing Master decided he did not have the power to enter into a consideration of the prohibitive nature of the expense when assessing the amount of the costs payable by Mr. Klohn. The High Court upheld that decision, which was appealed to this Court and the reference to the CJEU was subsequently made.
54. Unlike the present case, in Klohn , the order for costs and the taxation took place after 25 June 2005. The answer given by the CJEU on those facts was:-
"Where that article [10A] has not been transposed by a Member State, the national courts of that Member State are nonetheless required to interpret national law to the fullest extent possible, once the time limit for transposing that article has expired, in such a way that persons should not be prevented from seeking, or pursuing a claim for, a review by the courts, which falls within the scope of that article, by reason of the financial burden that might arise as a result."
55. As appears, the ruling of the CJEU in Klohn is directed to the position in Member States after the period for transposing the provision which does not have a direct effect has expired i.e. after 25 June 2005. That did not occur prior to either the orders made by the High Court for costs in favour of Appleridge against the appellant nor by the date of the taxation of costs. Counsel for the appellant has not referred to any authority which supports the imposition of a similar obligation to that set out above on national courts prior to the expiry of the transposition period. I do not consider that such an obligation can be held to exist. The obligation imposed on Member States is to transpose by the date specified. It is, therefore, unnecessary to consider whether there was an interpretation of national law open either to the Taxing Master which was possible to achieve the objective of the "not prohibitively expensive" provision in Article 10a at the date of taxation.
56. Insofar as the hearing before the High Court on the special summons is concerned, those are not environmental proceedings to which Article 10a of Directive 85/337, as amended, applies. Those are enforcement proceedings in relation to a money judgment which has previously been obtained by Appleridge against the appellant.
Conclusion
57. My conclusion is that these appeals must be dismissed. It is regrettable that the appellant is in the position of a person in respect of whom the evidence adduced before this Court indicates at minimum a strong argument that the taxation of costs may have been conducted in breach of her right to fair procedures. The hearing was in her absence.
58. Unfortunately, those facts occurred in 2004, just under 15 years ago. They had already occurred in excess of five years prior to the High Court hearing in April 2010, in which the orders under appeal were made and which is the date relevant for our consideration.
59. It is also regrettable that it would appear that the then procedures following the issue of a certificate of taxation appear to have permitted the registration of a judgment mortgage without notification to the judgment debtor of the fact that certificates of costs issued or that affidavits to register the judgments as judgment mortgages had been filed in the Central Office. It appears only to have been after registration in the Land Registry that the procedures provided for a notification to the appellant.
60. It is in dispute as to whether the appellant was notified at the time of registration in the Land Registry in 2005. However, what is not in dispute is that she was served with the special summons proceedings in 2009. From that time on, she was fully aware that the certificates of taxation had issued in December 2004 in the amounts for which the judgments were registered against her property. She took no steps to challenge, by way of judicial review, those certificates of taxation at any point prior to the hearing on 12 April 2010. For the reasons already set out, the trial judge was, in my view, correct in concluding that he could not consider the procedures followed by the Taxing Master or the validity of the certificates of taxation issued at the hearing in the special summons proceedings. It is again unfortunate that the appellant does not appear to have had legal assistance or advice or representation at that time.
61. The appellant had been granted several adjournments of the special summons proceedings in the High Court, during which no steps were taken to seek leave to apply for judicial review to challenge the certificates of taxation. I do not consider that the High Court judge was in error in those circumstances in proceeding to hear the special summons in April 2010, notwithstanding that the affidavits contained averments which indicated a potential lack of fair procedures before the Taxing Master. Further he was not in error in the decisions reached and orders made.
62. Accordingly, whilst having sympathy for the appellant by reason of a potential lack of fair procedures in relation to the taxation of costs in 2004, I have regrettably formed the view that there is no order which can now be made by this Court other than an order dismissing the appeals.
