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  • hearing days The arbitrator published an award a further year later on the 21st of May 2013 In his award he completely rejected the contention of Fayleigh that there had been a stepping back and further dismissed the counter claim and made an award in favour of Plazaway of the full amount 476 767 56 THE HIGH COURT PROCEEDINGS 8 Plazaway sought enforcement of the award and Fayleigh immediately brought proceedings to set aside the award on the grounds that the arbitrator had misconducted the arbitration The High Court Ryan J held that there had been misconduct in the arbitration but decided not to set aside the award in its entirety but rather to remit the matter to the arbitrator Fayleigh was therefore partially successful in its claim but has appealed the decision of the High Court arguing that while not obliged as a matter of law to do so nevertheless on the facts of this case once the High Court had found that there was misconduct it ought to have set aside the award in its entirety Furthermore on this appeal Fayleigh has now indicated that that it will abandon any counter claim so that if the award is set aside the only issue it says would be ventilated in a new arbitration would be whether Plazaway was entitled to the management fee and termination payment subject to one other issue as to calculation Plazaway for its part defends this appeal by arguing in the first place that the finding of misconduct should be set aside and further arguing that if the finding is upheld the High Court was right to remit the matter to the second named respondent Furthermore Plazaway contends that should the Court accede to Fayleigh s appeal and set aside the award in its entirety so that it must start afresh before a new arbitrator the costs of the proceedings should be ordered against the arbitrator who should it is argued bear responsibility for any misconduct giving rise to these proceedings THE ALLEGATION OF MISCONDUCT 9 The decision of the High Court rests entirely on matters which have their origins in days three and four of the arbitration At this stage the claim had been opened Mr Deignan had given evidence in support of it and on day three he was being cross examined by counsel for Fayleigh On day three counsel for Plazaway made reference to seventeen volumes of documents Since these documents are central to the case it is important to describe what was involved As part of the preparation for the arbitration discovery had been made and the claimant Plazaway had discovered some seventeen volumes of documentation to Fayleigh In the course of preparation for the arbitration Plazaway had prepared books of documentation five folders of which were documents alleged to support its claim five further folders containing documents relating to the counterclaim and an additional two core books of discovery The contents of these twelve books overlapped substantially therefore with the contents of the seventeen volumes of raw discovery made by Plazaway What was significant about the seventeen volumes produced by Fayleigh on day three therefore was not the contents of the volumes but rather the fact that Mr O Brien and his solicitor had carried out an exercise of colour coding all of the documents in the seventeen volumes by reference to specific matters The result of this exercise was it was alleged that it could be seen that the level of activity post March 2008 was much less than that in the corresponding periods in previous years and moreover that such activity as had occurred post March 2008 was only consistent with the provision of shared services and not with the continued performance of the management agreement Thus the key element of the books produced on day three was the colour coding and what it was alleged to show 10 The production of this documentation in the course of cross examination led to an objection on the part of Plazaway Counsel stated that he had no objection to the matter being put to the witnesses in principle but it was necessary that the documents should be proved first This is a variant of an objection sometimes encountered in trials in court where one party seeks to object to the production of documentation or to force another party to call a witness who may otherwise not be called or might indeed be hostile to the that party But the objection here was not really of much substance since the documentation here all emanated from the plaintiff s discovery and certainly could be put to the plaintiff s main witness In so much as the colour coding required evidence then that could have been proved in due course by Mr O Brien or another witness Nevertheless counsel put his argument very succinctly on day three at pp 52 to 53 I absolutely accept what my friend says in relation to the relevance of this documentation In fact it seems to me to go very much to the heart of the Defence that has been advanced But with respect Arbitrator I don t see how it can be advanced as evidence unless it is proved and there is an opportunity to put it to the witness Thus the objection made was of an absence formal proof 11 While this evidential dispute was being ventilated the arbitrator intervened being perhaps and if so understandably anxious about the implications for the length of the arbitration if 17 volumes of documents were to be deployed in cross examination of the first and perhaps subsequent witnesses Thus he stated at p 54 I am not going to allow the situation to develop where 17 lever arch files are going to be put to this witness or any witness A short time later he said I accept that it can be very relevant in determining the involvement of the claimant or the non involvement of the claimant as you put it But it simply cannot happen that we are going to spend weeks going in to this because I don t think putting it to the witness and I accept it is the only way you can prove it as Mr Dunleavy says is that you have to put it to the witness to prove That is the only way But if that is the case somebody should toss a coin because the costs in doing that will far exceed what this is about and that is not a good way to proceed with this arbitration or with any arbitration 12 It is clear from these exchanges that neither counsel for Plazaway nor the arbitrator was in doubt as to the relevance of the documentation It is equally clear that there was a difference between their approaches Plazaway had an objection as to proof whereas the arbitrator was concerned about the practical impact on the arbitration On the following day day four there were full submissions on the issue with both counsel addressing the evidential question There was a short adjournment and the hearing resumed with the arbitrator delivering his ruling at p 28 I have listened very carefully to the arguments put forward by counsel for the applicant and by counsel for the Respondent There are 17 books containing Discovery documents which have been provided by the Applicant In my view there is no need to prove the documents themselves I do not accept that the documents therefore have to be put to this or any other witness of the Applicant because I can see them also being put of necessity to Mr Savage Yesterday I indicated my view that it would not be in the interests of either party to do so Not only because of the additional costs involved but also because inevitably the Applicant s witness will have in many instances a different view of the significance of the content of them and I will have to consider that evidence in due course If they are put to the Applicant s witness then the Applicant may seek to introduce them in cross examination of the respondent s witnesses That whole exercise would seriously inhibit and delay the progress of this arbitration I am therefore not going to allow them to be put to any witness I indicated yesterday that I was prepared to read them if required I am entrusted with resolving sic this dispute between the parties I will not be influenced as a witness might by the colour coding or the tagging and even if I hear the evidence if it was put nothing could come out of it except disagreement as to the effect of the claims as to whether the colours flags and the contents of those documents prove that the material is or is not part of the management services or the shared services Therefore I will read the seventeen books as they are and I will construe them and their content and their relevance by reference to the pleadings and in the context of the other evidence 13 It might be said perhaps with the wisdom of hindsight that there were many practical solutions to the logistical difficulties which were undoubtedly presented by the course that Fayleigh proposed to take in this respect at the arbitration A sample of the documents could have been identified which best illustrated Fayleigh s contentions A witness statement might have been required from Mr O Brien or any other witness setting out exactly what it was said the documents showed and which would then allow Plazaway s witnesses to address this specific contention But it is hard to see that it was a satisfactory solution for the arbitrator to read all of the documents themselves without reference either to the colour coding or to any evidence as to what it was said that such colour coding would lead a reader of the documentation to understand 14 In the light of subsequent events it is a little ironic that it was counsel for Plazaway who was most concerned with the course proposed Counsel sought the assurance of the arbitrator that he would only commence to read the documents after hearing the evidence The arbitrator said he would do this and day four closed with the arbitrator stating for the record that he was not taking possession of the seventeen volumes at that point day four p 132 15 The arbitration proceeded and evidence finally concluded There was a directions hearing on the 24th of June 2012 which it should be noted was sixteen months after the issue which had arisen on day four and which has been almost the sole subject of these proceedings At the conclusion of the hearing counsel for Fayleigh raised the issue of the colour coded documents The arbitrator is recorded in a contemporaneous attendance made by Plazaway s solicitors as saying I didn t know what I am to do with them but I do recall that we dealt with them by way of a direction and I said I would revisit it if necessary I don t know if I m supposed to read them or to leave them aside Counsel agreed that the question of the documents could be dealt with in the legal submissions 16 In the legal submissions made on behalf of Fayleigh the arbitrator was referred specifically to the transcript of day four and it was submitted that the documents when read would show that the involvement of Plazaway in the running of the hotel in 2008 could not in any way be regarded as consistent with its obligations under the terms of the Management Agreement This was consistent with the position taken by Fayleigh on days three and four of the arbitration hearing and with the ruling of the arbitrator However the legal submissions on behalf of Plazaway sought to take the opportunity of returning to the issue of admissibility although contending this time that since the documents had not been formally proved they could not be considered at all 17 The arbitrator delivered his award on the 1st of May 2013 He rejected Fayleigh s defence and its counter claim In relation to the claim that Plazaway had stepped back from the agreement he said at p 33 There is no other evidence anywhere of this He also recorded at p 19 that the applicant s case that the claim of stepping back from the agreement was inconsistent with the facts the day to day engagement in the management of the hotel at that time and throughout the remainder of the year 2008 and the contemporaneous documentation supporting those facts 18 The arbitrator made specific reference to the 17 volumes of documents at p 46 of his award The arguments for the Applicant and the Respondent were comprehensively advanced during the hearing and I have trawled through every paper and document submitted to the hearing I have not admitted the 17 extra lever arch files proffered by the Respondent as I do not consider them appropriate 19 The argument on behalf of Fayleigh which the High Court accepted was that since the arbitrator had specifically stated that he was going to read the documents and had accepted their relevance to its defence the failure to do so was misconduct of the arbitration in the technical sense justifying the setting aside or remittal of the award On behalf of Plazaway Bernard Dunleavy S C accepted that if the directions hearing had not occurred this conclusion was unavoidable However he argued that because of the exchange at the directions hearing which it should be said was not principally directed towards this issue the position had been reopened and the arbitrator had in effect accepted Plazaway s submission that the documents were not admissible in evidence It was argued the arbitrator was entitled to take this view of matters and even if wrong it could not be misconduct 20 I cannot accept this submission First and perhaps most importantly I do not consider that it is a valid or accurate description of what the arbitrator did The arbitrator did not decide that the documentation was inadmissible because it had not been proved or because of any other evidential infirmity Instead he held that it should not be admitted because he considered that the documents were inappropriate If this means anything it seems much closer to his firmly stated and understandable position that the arbitration should not be delayed indefinitely by trawling through 17 volumes of documentation 21 In any event even if I were to proceed on the assumption that counsel was correct and that the arbitrator had belatedly ruled that the evidence was as a matter of law inadmissible because the documentation had not been proved I do not necessarily accept that this would avail Plazaway on this appeal It was accepted as it must be that the documentation was an important part of the defence or at minimum was a matter upon which Fayleigh and Mr O Brien placed considerable weight If the arbitrator had proceeded as suggested to change his mind and rule the documentation inadmissible because of a lack of proof which was purely formal and which could easily have been provided that would have been particularly unfair not least because the course the arbitrator took on day four effectively precluded any such proof It is not however necessary to form any view as to whether even on this hypothesis there would have been misconduct since I do not accept this characterisation of the events In those circumstances the conclusion of the High Court that the arbitration was misconducted because of the simple fact that the arbitrator having said that he was going to read the documents and having acknowledged their relevance and importance did not do so is one that must be upheld 22 The trial judge considered that notwithstanding the evidence of misconduct it was open to the Court either to set aside the award in its entirety under s 38 of the 1954 Act or to remit the award to this arbitrator under section 36 On this appeal Fayleigh accepted that the Court had power to remit the matter to the arbitrator but argued that the High Court ought not to have done so but rather ought to have set aside the award Section 38 provides that if misconduct is established a court may set aside the award I am prepared to approach this case therefore on the basis that it is common case that the Court was not obliged as a matter of law to set aside any award once misconduct was found although it should be noted that no specific argument was addressed to this point Fayleigh argued that it had lost confidence in the arbitrator as a result of this matter and should not be required to submit to a further hearing before the arbitrator Fayleigh also pointed out that the arbitrator made findings rejecting the evidence of Mr O Brien and that he cannot be expected to ignore such findings and Fayleigh for its part cannot be expected to believe he would do so The position it was submitted was broadly analogous to that in Galway County Council v Samuel Kingston Construction Ltd 2010 3 I R 95 Furthermore it was argued that insomuch as the High Court may have been influenced by the fact that the arbitration had already taken an inordinate amount of time and that to reopen the entire matter would be extremely costly then that was no longer a relevant concern because Fayleigh was prepared to undertake to abandon its counterclaim which would mean that the arbitration would be much more confined 23 I do not agree that the situation is analogous to that in Galway County Council v Kingston Construction Ltd 2010 3 I R 95 In that case there was a series of matters which led

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  • order of mandamus directing the first named respondent that is the Air Accident Investigation Unit to investigate the occurrence pursuant to S I 460 of 2009 This statutory instrument was in fact a successor to S I 205 of 1997 and it is S I 205 of 1997 which was operative on the 19th March 2008 being the date of the fatality This latter is therefore the operative statutory instrument 10 Regulation 10 1 of S I 205 of 1997 the Air Navigation Notification Investigation of Accident and Incidents Regulations 1997 provides that Every accident or serious incident to which these Regulations apply shall be the subject of an investigation Emphasis added 11 In Regulation 3 accident is defined as follows any occurrence associated with the operation of an aircraft which takes place from the time any person boards the aircraft with the intention of flight until such time as all persons have disembarked in which a a person is fatally or seriously injured as a result of i being in or on the aircraft ii direct contact with any part of the aircraft including a part which has become detached from the aircraft or iii direct exposure to jet blast except when the injuries are from natural causes self inflicted or inflicted by other persons or when the injuries are to stowaways hiding outside the areas normally available to the passengers and crew emphasis added 12 In the same provision Regulation 3 serious incident is defined as an incident involving circumstances indicating that an accident nearly occurred the term incident is in turn defined as an occurrence other than an accident associated with the operation of an aircraft which affects or is likely to threaten the safety of the aircraft or its operation 13 As this appeal relates to an application for leave to seek judicial review and is thus as already noted based on a test of arguability I am prepared to accept that there may be a case on the facts that there was a possibility or likelihood that an accident similar to that which unfortunately befell Mr Ralph could have occurred at a time when passengers had boarded a plane Even if however it might be possible to suggest that there was some type of latent threat to a boarded plane arising in that way it is important to note that a serious incident is not defined by reference to a threat but rather by reference to an accident which nearly occurred The non exhaustive examples of serious incidents given in the first schedule to the regulations are specified as operating as a guide to the definition of serious incident The type of events described involve near misses or the like They all involve an event where an accident i e an occurrence on a boarded aircraft as a result of which a fatality or serious injury occurs is just averted Those examples are entirely consistent with the definition of a serious incident as involving an

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  • Court hearing on the 11th day of May 2010 do stand discharged 3 Any person or persons having notice of the making of this Order be restrained from watching the setting placing in fear any of the parties herein 7 In his judgement of that day MacMenamin J recited the terms of the prior order He noted that the proceedings had been protracted though he declined from making any finding as to who was to blame despite stating that he had strong suspicions His previous order the judge said had been designed to see whether the parties divorcing each other and accessing professional mediation might in some way lessen the animosity that fuelled the proceedings MacMenamin J characterised the case as lacking a concern for the children with a focus instead on the issues between the parties He made it perfectly clear that any further applications should remain in the same jurisdiction and should not engage the trouble and expense of High Court proceedings I am therefore ordering that this matter be remitted to the Circuit Court I am ordering that all and any proceedings in this case should be brought to the Circuit Court I am ordering that no proceedings or no further step in these proceedings will be taken in the High Court without application for leave brought to me Such application would have be brought by way of affidavit and notice of motion and such affidavit and notice of motion will have to indicate why the matter cannot be dealt with in the Circuit Court rather than in the High Court Thus the intent behind the orders is that matters will be dealt with in a forum which will be convenient to the parties and in a situation where the Court will at all stages be familiar with the issues Even in the last month and a half to two months this matter has been before two of my colleagues before coming back to me now to deal with the motion for contempt 8 By that stage the judge noted divorce proceedings had yet to be issued before the Circuit Court in Munster He urged that there should be finality to the matters because the parties must put litigation behind them and get on with the rest of their lives The High Court vacated the undertakings noted in the order of 11th May 2010 and directed that any issue which concerned the safety of the children should be brought before the Circuit Court This would in any event be part of the provision that is necessary on the divorce of husband and wife pursuant to Article 41 3 2º of the Constitution The judge stated that there was to be no violence no threatened violence and persons are not to engage in any form of harassment against the other He continued I reiterate my concerns here that I think the children have been lost sight of I think that this is in many ways the classical case where there has been a victory of form over substance I do not intend therefore that this matter should come before this Court again I do intend that it should be fully and finally ventilated in the Circuit Court and in the circumstances I would place the parties on notice that if there is any effort made to re ignite High Court proceedings there is a risk of costs being applied against an unsuccessful party I would wish that there had been a mediator who could have got involved in the case I would wish that the many health and care professionals who have been involved in this case could have been allowed and permitted to address all the issues But it appears that for some reason or other that this has not happened This concludes my judgement 9 The husband initiated an appeal from that judgment and order but not in proper form on 16th May 2011 What is described as a notice of motion of appeal seeks that this Court firstly grant the husband full custody and control of our children and access for the wife under supervision for the immediate future pending the outcome of the full hearing of my appeal that the order of the High Court of 10th May 2011 be vacated that the order of the High Court of 11th May 2010 be reinstated and a vague claim for further relief 10 This appeal was not pursued in any timely way by the husband Nor apparently did he initiate Circuit Court proceedings as the High Court had directed The matter was allowed by him to lie for 4 years this despite the alleged seriousness of the dangers to the children which he claims motivated him With the changes to the appellate jurisdiction from orders of the High Court under Article 34 of the Constitution the Chief Justice has required all cases which have not progressed to appear on a list and for the parties thereto to offer an explanation as to why appeals were not progressing This case appeared on the list on 1st May 2015 An order was made that unless the matter were progressed through the filing of the appropriate papers the case should be struck out Papers were then filed by JMH and that case was given a date for hearing November 24th 2015 This judgment results from that hearing In June of 2015 another case brought by the husband JMH against KH came on for hearing by way of an appeal to this Court After hearing both parties again unrepresented that particular case was dismissed 11 From the time of the order of MacMenamin J of 10th May 2011 a number of developments have occurred The wife initiated divorce proceedings against her husband in the Circuit Court in Munster The husband claims to have been unaware of those proceedings and acted before this Court and more seriously elsewhere as if this was an unforeseeable development It is understood that the

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  • on behalf of the court or authority having custody of that document shall be admissible in evidence and shall be taken to be a true copy of that document or part unless the contrary is shown 3 Nothing in any of the following a Section 14 of the Powers of Criminal Courts Sentencing Act 2000 under which a conviction leading to probation or discharge is to be disregarded except as mentioned in that section aa section 187 of the Armed Forces Act 2006 which makes similar provision in respect of service convictions b section 247 of the Criminal Procedure Scotland Act 1995 which makes similar provision in respect of convictions on indictment in Scotland and c section 8 of the Probation Act Northern Ireland 1950 which corresponds to section 13 of the Powers of Criminal Courts Act 1973 or any legislation which is in force in Northern Ireland for the time being and corresponds to that section shall affect the operation of section 74 above and for the purposes of that section any order made by a court of summary jurisdiction in Scotland under section 182 or section 183 of the said Act of 1975 shall be treated as a conviction 4 Nothing in section 74 above shall be construed as rendering admissible in any proceedings evidence of any conviction other than a subsisting one Emphasis added The omission in s 74 3 signified thus is due to words repealed by the U K Criminal Justice Act 2003 The Appellant s Case 8 Counsel for the appellant contends that were the appellant to stand trial in the United Kingdom these emphasised provisions would enable the prosecution to adduce evidence of a convicted conspirator s conviction in the same matter He submits that if his client is surrendered to the United Kingdom there is a risk of denial of his rights pursuant to Article 38 of the Constitution It is said specifically that a trial which might allow the adducing of evidence of an alleged co conspirator s conviction potentially utilising ss 74 and 75 P A C E 1964 would infringe on the appellant s constitutional rights by reason of the fact that such a trial would not be in due course of law The case is made that the deployment in the prosecution case of an alleged co conspirator s testimony is procedurally questionable and does not accord with our precepts of a trial in due course of law Counsel submits that the scope of Article 38 is intended to give effect to this fundamental trial principle which should have application beyond the bounds of the national territory Counsel draws attention to the fact that our courts have on occasion recognised the entitlement of respondents to extradition proceedings to assert constitutional rights as a basis for resisting their surrender See for example evidence that a respondent likely to be ill treated if delivered out of the jurisdiction Finucane v McMahon 1990 ILRM evidence taken in violation of constitutional rights Larkin v O Dea 1995 2 I R inhumane prison conditions in a requesting state AG v PO C 2007 2 I R 421 9 This appeal must be decided on the evidence adduced It is not open to this Court to speculate on matters which are not placed in evidence On the provisions just quoted Mr Morris deposes only to the effect that the provisions highlighted as sections 74 and 75 Police Criminal Evidence Act 1984 would enable the prosecution to adduce evidence of the co conspirators sic convictions if Jason Buckley were to stand trial in the U K This would seem to be a case whereby it would certainly be open to the prosecution to make use of these provisions and that sic there is no reason to believe they would not attempt to do so It is said therefore that the provisions in question might be deployed to demonstrate that other persons committed the offence in question The principal objection which the respondent raises to his surrender and ultimate trial therefore is the prospect that the fact that evidence of others who were convicted of an offence in the same matter may be presented to the jury as admissible evidence that such other persons committed the offence thus compromising the appellant s presumption of innocence and the fairness of a trial 10 The question of context is essential in cases such as these No evidence has been adduced as to the context in which such evidence might be introduced at a trial This is simply not part of the case It is not said that an English trial court would be under a duty to admit such evidence No information is given as to what instructions might be given by a trial judge to a jury as to the circumstances in which such evidence might be admitted As indicated the evidence apparently would be to the fact that another person committed the offence How this might connect to the respondent is unclear No information is available as to how the law would be applied in ascertaining the purpose of any attempt to admit such evidence There is no indication as to whether or not the process involved ss 74 and 75 is generally used sparingly or frequently 11 On behalf of the appellant it is contended that the deployment of those provisions would be a denial of the respondent s right to hear evidence presented in the context of a trial where he should be in a position to contest all evidence by cross examination Counsel relies by analogy on the authority of Borges v The Fitness to Practice Committee of the Medical Council and the Medical Council 2004 1 I R 103 at p 113 par 26 where Keane C J observed that when a tribunal is enquiring into allegations of conduct which reflects on a person s good name or reputation basic fairness of procedure requires that he or she should be allowed to cross examine by counsel his accuser or accusers see also In Re Haughey 1971 1 I R 217 12 A consideration of the facts of Borges shows the limitations of this analogy Not the least significant of these was that this impugned procedure was to take place in this jurisdiction although obviously this was not an Article 38 case In Borges the complaint raised by the applicant was that the second named respondent that is The Medical Council of Ireland intended to conduct an enquiry before its own Fitness to Practice Committee The Medical Council contended that the complainants against the applicant doctor would not be called in evidence in the enquiry which was to be held in Ireland but instead their testimony was to be introduced by reference to a transcript of proceedings before the Professional Conduct Committee of the U K General Medical Council before which such complainants had actually testified It was also intended to adduce in evidence the findings of the U K Professional Conduct Committee and of the Privy Council in an appeal upholding that Committee s findings In Borges this Court held that such an enquiry could not lawfully be held here on the basis that the applicant would be deprived of his right to fair procedures Consequent on the course of action proposed and adopted by the Medical Council evidence would be adduced not by witnesses who could be cross examined but rather by reference to a transcript Clearly then the witnesses would not be susceptible to cross examination or challenge For this reason this Court held such a procedure breached the principles of fair procedures and held for the applicant doctor 13 Borges was not based on some hypothesis of what might possibly occur It was entirely clear that the enquiry had embarked upon and was to be based on this irregular and unjust procedure The complainants would not be called The case advanced by the applicant doctor therefore was predicated on a specific set of accomplished facts The evidence to be thus adduced could not be effectively challenged in cross examination 14 While counsel for the appellant presented this appeal with great force it seems to me that the case made is unconvincing for a number of reasons What arises here is purely a hypothesis regarding application of the rules of evidence in the U K There is no factual material in this appeal that the statutory provisions in question which are simply evidential rules are likely to be relied on in a trial The analogy with Borges is inapposite for this reason alone Next on a perusal of the United Kingdom provisions which can hardly be characterised as a fundamental defect in the justice system which amounts to a deprivation of a guaranteed right proof by evidence of conviction of another as set out in the United Kingdom statute is not conclusive proof of the guilt of an accused but rather is evidence only that the other person has committed the offence unless the contrary is proved s 74 2 PACE 1984 The respondent has not adduced evidence that he would be left without remedy or asserted that no procedural checks and balances exist in the United Kingdom in order to ensure that fairness is preserved in a trial there 15 The unclear and contingent nature of the case advanced by the appellant is in fact rather highlighted in the affidavit of James Morris referred to earlier It is not suggested the prosecution case against the appellant hinges upon or is likely to hinge upon ss 74 and 75 PACE 1984 either alone or in conjunction with some other statutory provisions Mr Morris actually identifies some 16 points of potential evidence which might be used in an intended prosecution These may include telephone evidence and analysis relating to all alleged co conspirators transcripts of recorded telephone calls phone company evidence and calls cell site analysis showing the location of mobile phones used by alleged perpetrators in respect of phone masts close to targeted premises CCTV footage either of cars in locations where the pipe bombs were detonated forensic evidence in respect of the pipe bombs themselves eye witness evidence and automatic number plate recognition of cars involved in the offence In addition it would appear that ballistics firearms explosive evidence would be adduced together with eye witness statements and surveillance evidence It is by no means clear then that the prosecution authorities will inevitably or are likely to rely on evidence adduced by reference to ss 74 and 75 of the U K Act Section 4A of the 2003 Act 16 Section 4A of the Act of 2003 contains a presumption that an issuing state will comply with the requirements of the Framework Decision unless the contrary is shown Counsel for the appellant submits the trial judge erred in placing such reliance 17 However as the learned High Court judge pointed out the respondent s evidence here was again silent as to any possible safeguards counterbalances or remedies that might exist under United Kingdom law to guard against any potential unfairness and injustice in the operation of the Act of 1984 were it to be deployed Not only would this Court not be justified in inferring that no such safeguards exist in fact it is bound by a presumption in the other direction which derives from s 4A of the Act of 2003 In the absence of some controverting evidence therefore there is nothing tending to rebut the presumption under s 4A of the Act of 2003 18 These various observations however must be seen as prefatory to two decisions which are in fact entirely determinative on the question of extra territorial effect of Article 38 The Judgment of this Court in Minister for Justice v Brennan 19 In Minister for Justice Equality Law Reform v Brennan 2007 3 I R 732 at p 743 Murray C J observed that if the constitutional guarantees in respect of domestic criminal processes were to be applied to foreign criminal processes in the context of extradition then it would be all but inevitable that surrender would have to be refused in most cases He expressed himself in this way at par 37 p 743 37 The effect of such an argument is that an order for surrender under the Act of 2003 and indeed any order for extradition ought to be refused if the manner in which a trial in the requesting state including the manner in which a penal sanction is imposed does not conform to the exigencies of our Constitution as if such a trial or sentence were to take place in this country That can hardly have been the intention of the Oireachtas when it adopted s 37 1 of the Act of 2003 since it would inevitably have the effect of ensuring that most requests for surrender or extradition would have to be refused And indeed if that were the intent of the Framework Decision which the Act of 2003 implements and other countries applied such a test from their own perspective few if any would extradite to this country 20 He continued at par 38 p 743 38 Indeed it may be said that generally extradition has always been subject to a proviso that an order for extradition as with any order should not be made if it would constitute a contravention of a provision of the Constitution I am not aware of any authority for the principle that the extradition or surrender of a person to a foreign country would contravene the Constitution simply because their legal system and system of trial differed from ours as envisaged by the Constitution Nottinghamshire County Council v B K 21 In Nottinghamshire County Council v B K Another 2011 IESC 48 O Donnell J with whom Denham C J Fennelly J and Macken J agreed Murray J concurring in part again explained that the general range and scope of the Constitution and the rights derived therefrom are with one important exception to be seen as operating intra territorially The Court held that the Constitution does not in general attribute legal significance to events occurring abroad As O Donnell J observed in the context of an application under the Hague Convention on Child Abduction The true question for an Irish Court is whether what is done within this jurisdiction can be said to be contrary to the Constitution This is why Article 20 of the Hague Convention can be seen to precisely focus attention on the issue That is whether the return and not the adoption would itself be a breach of the Irish Constitution para 61 p 56 He pointed out it was clear that the Constitution expects the legal systems of friendly nations will differ from that of Ireland para 66 p 58 Emphasis added The symmetry in reasoning between Brennan and Nottinghamshire County Council is clear 22 There is no extant authority therefore which provides support for the proposition that Article 38 should operate in an extra territorial fashion What is at stake rather is whether Ireland should surrender the applicant and if such surrender accords with constitutional principles I would emphasise however that if there is a fundamental defect in the legal system of a requesting state different considerations may well apply Differences Between Legal Systems 23 In Brennan 2007 3 I R 732 Murray C J distinguished between two scenarios at para 39 at p 743 744 first that The manner procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions The checks and balances in national systems may vary even though they may have the same objective such as ensuring a fair trial There may be few if any legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters Not all for example will provide a right to trial by jury in exactly the same circumstances as our Constitution does in respect of a trial for a non minor offence Rules of evidence may differ Emphasis added It is clear then that from this final quotation differences in the rules of evidence are insufficient to raise a question of refusal to surrender An Exception Fundamental Defects in a Foreign Justice System 24 Entirely different considerations arise if it can be shown that there is a fundamental defect in the requesting state s system of justice Murray C J contrasted the position in these terms 2007 3 I R 732 at p 744 40 That is not by any means to say that a court in considering an application for surrender has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting state where a refusal of an application for surrender may be necessary to protect such rights It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply even if constitutionally guaranteed in relation to a criminal trial in this country does not of itself mean that an application for surrender should be refused pursuant to s 37 2 of the Act Emphasis added Both Brennan and Nottinghamshire County Council are authority therefore for the proposition that absent some matter which is fundamental to the scheme and order of rights ordained by the Constitution or egregious circumstances such as a clearly established and fundamental defect or defects in the justice system of a requesting state the range and focus of Article 38 must be within the

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  • and files of the matter show 7 The hearing of that motion from which this judgment derives on appeal operates in substance as an appeal against the order removing Edward White from the administration as executor of the estate of the late Kathleen White 8 The appointment or removal of an executor of an estate and the powers and duties of executors are provided for under the Succession Act 1965 Section 26 thereof reads 1 The High Court shall have power to grant probate to one or more of the executors of a deceased person and a grant may be limited in any way the Court thinks fit 2 The High Court shall have power to revoke cancel or recall any grant of probate 9 These powers are largely self explanatory Indeed in Brady Succession Law in Ireland 2rd Ed Dublin 1995 at para 9 80 that distinguished author only thought it necessary to give the following commentary Jurisdiction to grant probate to one or more of the executors named in the will of a deceased person lies with the High Court which may limit such grant in any way the court thinks fit The court also has the power to revoke cancel or recall any grant of probate 10 When a person dies as a matter of law the executors of the estate must act so as to distribute the assets in accordance with the will of the deceased as soon as is reasonably possible Of course some estates may be more complex than others perhaps setting up trusts or requiring the gathering in of property from more than one jurisdiction What constitutes a reasonable time for gathering in an estate and distributing it to those entitled under a will therefore depends upon the relevant circumstances Under s 62 1 of the Act of 1965 proceedings may not be brought against a personal representative for failure to distribute the estate within one year of the death of the deceased though the court may give leave to proceed over a different time frame Brady at para 10 30 comments The Succession Act thereby incorporates the long established rule that personal representatives have one year from the death of the deceased in which to administer the estate and beneficiaries under a will may not initiate action against the executors until the end of the so called executor s year There is nothing to prevent the personal representatives distributing the estate within the executor s year if they so choose and indeed failure to do so may leave them open to the charge that they have failed to administer the estate with due diligence This is particularly the case with regard to payment of the deceased s debts since failure to do so will invariably mean that interest on the debt grows and it may grow to a point where it threatens the interests of the beneficiaries 11 The bounden duty of an executor is to commence the process of the identification

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  • Court or to any judge exercising the jurisdiction on his designation to conclude that wardship is not necessary in any given circumstances either for the protection of that property or of the person of the respondent Similar considerations must apply to an application brought to admit to wardship a person with no property One of the matters on which the High Court must then exercise its discretion is as to whether wardship is necessary for the protection of the person who is the respondent in such proceedings The trial judge concluded that it does not follow from that passage or indeed from any other part of the judgment that the High Court has inherent jurisdiction to create a trust While he accepted the submission of counsel for the General Solicitor that the decision in the D case is authority for the proposition that the jurisdiction of the High Court is broader than the jurisdiction conferred by the Act of 1871 as a result of the parens patriae jurisdiction formerly exercised by the Lord Chancellor and now exercised by the President of the High Court he made it clear that he accepted that the submission only extends to the Court s wardship jurisdiction to include the admission to wardship of a person with no property who may require protection of his or her person 15 Fourthly the trial judge made observations in relation to the reliance by counsel for F D on the decision of the High Court Costello J in H L v Governor and Company of the Bank of Ireland 1978 I L R M 160 the H L case His conclusion was that as the discretionary trust in that case was established by Costello J pursuant to s 117 of the Succession Act 1965 the Act of 1965 the decision does not lend support to F D s case 16 At a broader level against the background of the argument made on behalf of F D that the High Court has jurisdiction to hear every kind of justiciable matter and that the only exceptions are those matters removed from its jurisdiction by the Constitution or by statute the trial judge considered the concept of inherent jurisdiction by reference of the decision of the Supreme Court in GMcG v DW No 2 Joinder of the Attorney General 2000 4 I R 1 GMcG v DW The passages from the judgment of Murray J which he quoted will be considered later He found that the passages in question were directly applicable to the issues before the Court While accepting the submission made on behalf of the General Solicitor that the full and original jurisdiction of the High Court is to deal with justiciable controversies he also agreed that the creation of a trust in the circumstances before him was not a justiciable controversy 17 On the basis of the foregoing reasoning the trial judge concluded that the High Court has no jurisdiction inherent or otherwise to create the trust scheme which F D s family require be set up Hearing of the appeal 18 There are a number of features of the hearing of the appeal in this Court which it is appropriate to record Prior to the hearing the Court had helpfully received comprehensive written legal submissions on behalf of F D the General Solicitor and the Attorney General On the hearing of the appeal one legal team appeared on behalf of both the General Solicitor and the Attorney General 19 In the written legal submissions filed on behalf of the Attorney General which were dated 19th September 2014 an argument was made that this appeal is unnecessary Reference was made to observations in the written submissions which had been filed earlier on behalf of F D that the appeal reflects an unhappiness long felt with the manner in which the wardship jurisdiction currently operates and that the appeal is brought in circumstances where the imperfections and frailties in the wardship system have not been recognised or the necessary reforms made It was submitted that those contentions appeared to overlook the provisions and significance of a Bill which had been published Assisted Decision Making Capacity Bill 2013 the 2013 Bill It was disclosed that a proposal had been made to F D s solicitors that the appeal be adjourned for mention to a date in 2015 in circumstances where it was expected that the 2013 Bill should be enacted by the end of 2014 so as to avoid costs which might be unnecessarily incurred However F D s family were not agreeable to the proposal 20 The 2013 Bill was not enacted before the end of 2014 and it is still not enacted Coincidentally the 2013 Bill was before Dáil Éireann on the day before the hearing of the appeal in this Court that is to say on 21st October 2015 At the commencement of the hearing of the appeal counsel on behalf of the General Solicitor and the Attorney General informed the Court that the 2013 Bill had been passed by Dáil Éireann on the previous day The Court was also informed that it was scheduled to go to Second Stage in the Seanad on 10th November 2015 which has indeed taken place and to Seanad Committee Stage on 24th November 2015 Counsel handed into Court a briefing document prepared by the Civil Law Reform Division of the Department of Justice and Equality dated 21st October 2015 outlining the provisions of the 2013 Bill which I understand would have a bearing on the position of a person in similar circumstances to F D after the enactment and commencement of the 2013 Bill Once again it was suggested that the appeal would be moot when the relevant provisions were enacted and commenced On that basis it was suggested that the appeal should be adjourned until January 2016 When the views of F D and his family were elicited it was made clear by their counsel that they wished the appeal to be heard Having considered the views of both sides the Court determined that the appeal should be heard and determined 21 As regards the Suggested draft of Trust referred to at para 11 above at the hearing of the appeal there was put before Court a file summary of the sixteen precedents identified by the General Solicitor following the direction of the Supreme Court in Dolan No 1 the precedents being lettered from A to P The Suggested draft of Trust related to Precedent O Two documents were furnished to the Court in relation to Precedent O One was an order of the High Court in plenary proceedings in which monies representing the settlement of the action of the plaintiff were lodged in Court In the curial part of the order which was dated 23rd October 1997 it was ordered that the accountant of the High Court subject to certain deductions pay the balance of the monies in court to the trustees to be dealt by them in accordance with the terms of a deed of trust a copy of which was annexed to the order The second document furnished was a copy of a deed of trust which was certified by the Registrar as being the deed of trust referred to in the order Understandably the copies of both documents put before this Court were redacted However it appears that the plaintiff in the plenary proceedings was the settlor and three individuals including his mother were joined as trustees In broad terms the terms of the deed of trust were that the trustees would hold the monies to be transferred to them out of the monies in court upon trust during the lifetime of the plaintiff settlor to pay or apply the income of the trust fund for his benefit and to pay or apply capital for his care maintenance and benefit and on his death to transfer the trust fund to his personal representative Provision was made that the trustees would have the type of powers one would expect for example powers in relation to investment of the trust funds The appointment of new trustees had to be ratified by the President of the High Court The trustees undertook to account to the President of the High Court on an annual basis for the management of the trust funds There was provision that the trustees could apply at any time directly to the President of the High Court for directions on the management of the trust fund As I understand it the wish of the family of F D is that a trust in similar terms be put in place in relation to the balance of the monies and investments representing F D s settlement of his plenary proceedings Discussion of and conclusion on the core issue 22 A very net question arises on the preliminary issue It is whether the High Court in circumstances which suggest that F D is not capable of managing his own affairs but has not been the subject of an inquiry as to whether he is or is not capable of managing his affairs has jurisdiction to sanction so as to give efficacy to a trust scheme in relation to assets he has acquired in consequence of the settlement of the plenary action In answering that question a proper understanding of the decision of this Court in the D case is of prime importance 23 At issue in the D case was whether the High Court has jurisdiction to take into wardship a person of unsound mind whose person requires protection and management but who is not entitled to any property requiring such protection or management It was held that such a jurisdiction does exist but it is not a jurisdiction conferred or delimited by the Act of 1871 Rather it is part of the general protective jurisdiction over persons of unsound mind which is vested in the High Court by s 9 of the Act of 1961 24 In his judgment in the D case Finlay C J stated at p 452 that the jurisdiction of the High Court in lunacy matters is provided for in s 9 of the Act of 1961 and he went on to quote subss 1 and 2 of s 9 which provide as follows 1 There shall be vested in the High Court the jurisdiction in lunacy and minor matters which a was formerly exercised by the Lord Chancellor of Ireland b was at the passing of the Act of 1924 exercised by the Lord Chief Justice of Ireland and c was by virtue of subsection 1 of section 19 of the Act of 1924 and subsection 1 of section 9 of the Act of 1936 vested immediately before the operative date in the existing High Court 2 The Jurisdiction vested in the High Court by subsection 1 of this section shall be exercisable by the President of the High Court or where the President of the High Court so directs by an ordinary judge of the High Court for the time being assigned in that behalf by the President of the High Court Finlay C J then summarised the effect of s 9 as follows at p 453 I am satisfied that this section must be construed as vesting a jurisdiction in the High Court as both sub sections 1 and 2 of it describe it as doing the extent of which jurisdiction is described and identified by subclauses a and b by reference to jurisdictions formerly exercised and by subclause c by reference to jurisdictions previously vested in the former High Court In stating that the section must be construed as vesting a jurisdiction in the High Court it is clear from the next sentence of the judgment that Finlay C J was drawing a distinction between a provision such as s 19 of the Act of 1924 providing that jurisdiction shall be transferred on the one hand and a provision such as s 9 of the Act of 1961 which was concerned with directly vesting as distinct from transferring jurisdiction on the other hand 25 In setting out his reasons for concluding at p 454 that there is vested in the High Court a jurisdiction where necessary and appropriate to take into wardship a person of unsound mind whose person requires protection and management but who is not entitled to any property which requires protection or management Finlay C J analysed the jurisdiction on lunacy matters exercised by the former Lord Chancellors of Ireland by reference to two decisions dating from 1892 In re Birch 1892 29 L R Ir 274 and In re Godfrey 1892 29 L R Ir 278 Having done so he stated at p 455 I am driven by these two decisions and by the statement of a former Lord Chancellor of Ireland as to what his understanding of his jurisdiction was and indeed the exercise by him of it to the conclusion that it extended beyond the taking into wardship of persons who had property and the management and protection of their property as well as the protection of their person Such a construction of the jurisdiction in lunacy matters vested by the Act of 1961 in the High Court seems to me to obtain significant support from a consideration of the provisions of Article 40 s 3 sub s 2 of the Constitution where the obligation imposed on the State by its laws to protect as best it may from unjust attack and in the case of injustice done to vindicate the life and person of every citizen is put in equal place with the obligation to protect and vindicate the property rights of every citizen 26 The statement of a former Lord Chancellor of Ireland referred to in that passage was the statement of Ashbourne L C in In re Birch which was quoted earlier by Finlay C J at p 454 and in which the jurisdiction conferred by the terms of the Queen s Letter in Lunacy which was addressed to each successive Lord Chancellor was quoted in part and explained Explaining it Lord Ashbourne stated that the words of the document amounted to an express delegation by the Crown under the Sign manual of its prerogative jurisdiction in Lunacy to the Lord Chancellor The single purpose of the Crown is to benefit this afflicted class by confiding them to the care of its highest Judge and one of its greatest officials There is no restriction by which the jurisdiction of the Lord Chancellor is confined to any particular section of this afflicted class The parental care of the Sovereign extends over all idiots and lunatics whether so found by legal process or not In quoting that passage the clear objective of Finlay C J was to identify the jurisdiction formerly exercised by the Lord Chancellor of Ireland Having done so he had identified a jurisdiction which the Oireachtas expressly vested in the High Court by virtue of s 9 1 of the Act of 1961 In other words the source of the present jurisdiction of the High Court which was formerly exercised by the Lord Chancellor is s 9 of the Act of 1961 by virtue of which the Oireachtas vested that jurisdiction in the High Court Reliance on succession to the royal prerogative does not arise 27 The passage from the judgment of Finlay C J at p 456 which was quoted by the trial judge and which is quoted at para 14 above is concerned with the exercise of the jurisdiction to take a person into wardship rather than with whether the jurisdiction exists In both examples given in that passage it had been found that wardship jurisdiction did exist where the person to whom the inquiry relates has property in which case the jurisdiction exists under the Act of 1871 and where the person has no property in which case the jurisdiction exists by virtue of s 9 1 of the Act of 1961 In my view the trial judge was correct in stating that it does not follow from that passage that the High Court has an inherent jurisdiction to create a trust 28 At the core of the submissions advanced on behalf of F D that the High Court does have jurisdiction to establish a trust scheme is the contention that the discretion in exercise of the wardship jurisdiction described by the Supreme Court in the D case encompasses the inherent jurisdiction of the High Court otherwise recognised in Article 34 3 1 of the Constitution which provides The Courts of First Instance shall include a High Court invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact civil or criminal Further it is contended that in the context of the development and expansion of the High Court s jurisdiction in the exercise of the wardship jurisdiction following the judgment in the D case the discretionary and inherent jurisdiction of the High Court contemplates circumstances where the family of an affected person may propose a trust or trust like arrangement to be considered by the High Court in the exercise of that jurisdiction In the light of the analysis of the judgment of Finlay C J in the D case set out above those contentions are not consistent with what this Court determined in the D case 29 Apart from that it was submitted on behalf of the General Solicitor and the Attorney General that the High Court does not have the inherent jurisdiction asserted on behalf of F D in reliance on the judgment of the Supreme Court in GMcG v DW The issue being addressed in that case was the jurisdiction of the courts to join the Attorney General in proceedings pursuant to s 29 of the Family Law Act 1995 and in particular whether the courts could be called upon to exercise a unspecified

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  • the bankruptcy automatic stay as against B A personally as opposed to his U S bankruptcy estate which permits creditors including A A to collect their debts from B A s post bankruptcy income and assets Later Mr Berman averred As an individual B A has a separate existence from his bankruptcy estate As stated above following the waiver of his discharge his pre bankruptcy creditors may pursue him and seek to collect from his post bankruptcy income d In paragraph 9 Mr Berman averred that the Chapter 7 Trustee whom he described as the representative of the U S bankruptcy estate which as set forth above not only contains B A s pre bankruptcy property but also his pre bankruptcy defenses had authorised B A to pursue his right to seek to open the Irish Supreme Court judgment Mr Berman exhibited a letter dated 5th June 2013 from the Chapter 7 Trustee to B A s then solicitors prior to the hearing of the appeal to the Supreme Court against the 2009 Judgment and the 2009 Main Order In the letter the Chapter 7 Trustee stated Pursuant to your request I am writing to confirm that I have no objection to your representation of B A or the representation of B A by any other lawyer in relation to any matters that have come before the Irish Supreme Court or that may come before the High Court relating to B A s family law dispute with his former wife That letter which records that it was sent by e mail only was dated just short of a month before the commencement of the hearing of B A s appeal in this Court e Finally in paragraph 10 Mr Berman averred that the U S automatic stay applies to all entities and that the Official Assignee is an entity which is defined as to include a person estate trust and government unit Mr Berman averred that by asserting he has B A s litigation rights the Official Assignee is attempting to exercise control over property of the estate and violating the automatic stay 28 A further affidavit was sworn by Ms MacNamara on 22nd July 2015 in which she exhibited a letter from the Chapter 7 Trustee to O Grady s Solicitors That letter was dated 22nd July 2015 In the letter the Chapter 7 Trustee stated that the letter of 5th June 2013 was sent by him to B A s then solicitors in this jurisdiction at a time when B A had been adjudicated in the United States He continued At that time he had not been adjudicated in Ireland I had no objection to him appealing the High Court decision in the matrimonial proceedings as a successful appeal might well have had the effect of making assets available for creditors In circumstances where the creditors were not being required to bear the costs of the appeal I saw no objection to permitting the bankrupt to proceed with the appeal However I was focusing solely on U S law and I had no intention of usurping the powers of an O A should an Irish bankruptcy commence Nor did I take into account any aspect of Irish law of which I had no knowledge The Chapter 7 Trustee then stated as follows The letter of 5th June 2015 although written in general terms was never intended to be applicable to such as the present application which was wholly unforeseen at the time of writing of that letter It is to be noted that the Chapter 7 Trustee neither set out his understanding of the present application nor indicated in plain terms his position in relation to it 29 Understandably the solicitors for the Official Assignee were less than pleased when they first received the affidavit of Mr Berman by e mail at 14 32 on the 21st July 2015 In a letter of that day to B A s solicitors they indicated that they objected to the filing of the affidavit and that they reserved the right to seek leave to file a reply if the affidavit was to be admitted When the matter was before this Court on 23rd July 2015 at the outset counsel for the Official Assignee recognised that the Court might consider it appropriate that Mr Berman s affidavit be responded to and he indicated that the Official Assignee was reserving his entitlement to seek an adjournment if that was necessary Having heard the submissions of counsel for the parties before the Court the Official Assignee A A and B A the Court enquired of counsel for the Official Assignee whether the Official Assignee wished to file an affidavit Having taken instructions counsel stated that the Official Assignee did not wish to file any further affidavit evidence Furthermore at the hearing of the locus standi issue on 23rd July 2015 B A did not seek an opportunity to put any further evidence before the Court for example evidence in the light of the contents of the letter of 22nd July 2015 of the current position of the Chapter 7 Trustee in relation to B A s 2015 Application to set aside the judgments of the High Court and the Supreme Court 30 Accordingly the position is that in the context of a matter of private international law raised by B A the Court has before it an affidavit as to foreign law that is to say the law of the United States of America governing the U S Bankruptcy and the powers and functions of the Chapter 7 Trustee from an attorney who represents one of the proponents on the issue before the Court while having no other expert evidence on any relevant provisions of the law of the United States of America on behalf of any of the other parties who were before the Court that is to say the Official Assignee and A A That is a most unsatisfactory state of affairs Even more unsatisfactory is the fact that this Court is not aware whether the Chapter 7 Trustee was given notice by B A s solicitors of the filing on 10th March 2015 of B A s 2015 Application or of the procedural developments in relation to that application prior to the locus standi issue coming on for hearing on 23rd July 2015 including the date fixed for the hearing of the locus standi issue but it is assumed he was not This is particularly disconcerting given the conflict which has emerged between the Official Assignee and B A as to the legal position in relation to B A s assets as the outline of the respective positions of the parties which must now be embarked on will disclose Respective position of the parties in outline Official Assignee s submissions 31 In essence the Official Assignee is the moving party on the locus standi issue The kernel of the Official Assignee s contention that B A does not have locus standi to seek to set aside the 2009 Judgment and the Supreme Court Judgment is that A A s 2006 Application in the matrimonial proceedings related solely to B A s estate that is to say to his property and not to his person so that he does not have a personal claim arising out of the decisions of the High Court or the Supreme Court B A s estate has been vested in the Official Assignee since 29th July 2013 it is submitted In that connection the Official Assignee relies on the definition of property in s 3 of the Bankruptcy Act 1988 the Act of 1988 which provides that property includes things in action He also relies on s 44 of the Act of 1988 and in particular subs 1 which provides that where a person is adjudicated bankrupt subject to the provisions of the Act of 1988 all property belonging to that person from the date of adjudication vests in the Official Assignee for the benefit of the creditors of the bankrupt Further by virtue of subs 3 of s 44 it is provided that the property to which subs 1 applies includes inter alia all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication The Official Assignee also relies on s 61 of the Act of 1988 which by virtue of subs 3 empowers the Official Assignee inter alia d to institute continue or defend any proceedings relating to the property In short the position of the Official Assignee is that it is his function to determine what steps should be taken in relation to the property of the bankrupt including assets which are the subject of the judgments and orders of the High Court and the Supreme Court on A A s 2006 Application in the matrimonial proceedings His decision is that he should not to prosecute any second substantive appeal which might arise from the outcome of B A s 2015 Application 32 In support of his contention that it is for him to the exclusion of B A to decide whether B A s 2015 Application to set aside the 2009 Judgment and the Supreme Court Judgment or any proceedings such as a further appeal which might result from its outcome should be prosecuted the Official Assignee relies on the decision of the Court of Appeal of the United Kingdom in Heath v Tang 1993 1 W L R 1421 Heath which was applied in this jurisdiction by the High Court Kelly J in Quinn v IBRC 2012 IEHC 261 Quinn The Official Assignee also places particular emphasis on a decision of the High Court of New Zealand in De Alwis v Kum Civ 2002 404 001944 De Alwis 33 In his original written submissions filed on 7th May 2015 the Official Assignee makes it clear that the purpose of those submissions is solely to deal with the question of the locus standi of B A to bring B A s 2015 Application That undoubtedly is the correct approach Whether B A s 2015 Application as regards the substantive claims embodied in it might or might not be successful whether in relation to the 2009 Judgment or the Supreme Court Judgment if pursued in my view is not material to the locus standi issue In fact the Official Assignee strayed beyond the avowed purpose of his submissions in a number of respects For instance the Official Assignee made submissions as to the likely outcome of the application to set aside the 2009 Judgment and the implications if it was not set aside even if the Supreme Court Judgment was set aside Moreover in the Official Assignee s submissions a critical analysis is conducted as to the legal basis on which B A seeks to set aside the 2009 Judgment and the Supreme Court Judgment In my view it is not appropriate for this Court to consider either of those matters Similarly the implications if any of the failure of B A to raise the issues which he now raises at the hearing before the trial judge in the High Court in October 2014 go to the substantive issues on his application rather than to the locus standi issue While in this vein apart from the observation made in the penultimate paragraph of this judgment as to the proper approach for a bankrupt to adopt where an issue is likely to arise as to whether the initiation or maintenance of legal proceedings in relation to a bankrupt or his estate is governed by s 61 3 d of the Act of 1988 it is also pertinent to question although neither the Official Assignee nor A A raised the point whether there is a procedural issue in B A initiating a motion in the Supreme Court to set aside the 2009 Judgment of the High Court as distinct from setting aside the order of the Supreme Court rather than commencing the substance of B A s 2015 Application as regards the 2009 Judgment and the 2009 Main Order in the High Court However as the question was not raised it is not necessary for this Court to express any view on the point B A s submissions 34 In responding to the submissions of the Official Assignee counsel for B A did not take issue with the reasoning underlying the decisions in Heath or Quinn Rather B A s position is that neither of those decisions was concerned with or addressed a number of fundamental features of B A s application 35 The first distinguishing feature relied on by B A is characterised as the international cross border dimension which arises from the fact that B A is subject to two concurrent bankruptcies the U S Bankruptcy which was first in time and the bankruptcy in this jurisdiction B A asserts that the Official Assignee is incorrect in submitting that B A s estate vested in the Official Assignee on 29th July 2013 the date of the adjudication of B A as a bankrupt in this jurisdiction It is asserted that the decision in In Re Anderson 1911 1 KB 897 Anderson supports B A s position that B A s estate vested in the Chapter 7 Trustee the U S Bankruptcy being first in time The Court was also referred to Sheldon on Cross Border Insolvency 4th Ed 2015 at paras 9 28 9 29 A number of propositions are advanced by B A flowing from that feature It is contended that there is no basis for the Official Assignee to contend that B A does not have the right to bring B A s 2015 Application Rather whether B A has a right to bring that application is a matter between B A and the Chapter 7 Trustee B A s position being that the letter of 5th June 2013 from the Chapter 7 Trustee entitles him to bring the application However in my view the letter of 22nd July 2015 from the Chapter 7 Trustee disarms B A s reliance on the letter of 5th June 2013 The alternative proposition advanced on behalf of B A is that even if the Official Assignee is entitled to intervene on the facts as disclosed in Mr Berman s affidavit and in particular having regard to B A s waiver of his discharge in the U S Bankruptcy it is not the case that B A has no interest in prosecuting B A s 2015 Application That is because judgments against him including the judgment in favour of A A who has submitted to the jurisdiction of the U S Bankruptcy Court in the matrimonial proceedings can be enforced against him personally in the United States in relation to his post bankruptcy assets so that he has a personal interest in prosecuting that application The reasoning in Heath and in Quinn does not apply it is submitted Underlying that alternative proposition of B A is the assertion that the Official Assignee is ignoring the existence of the concurrent U S Bankruptcy which was first in time and its implications which it is submitted he is not entitled to do 36 The second feature which it is contended distinguishes the circumstances in this case from the circumstances in either Heath or Quinn is that the central complaint here is that B A was denied his fundamental right to constitutional justice and a fair trial in proceedings which were heard prior to his adjudication in bankruptcy which as regards the hearing of the appeal in the Supreme Court I presume means prior to his adjudication in this jurisdiction B A s claim arising from that complaint it is suggested is a personal claim because it is B A s personal rights which have been infringed not those of the Official Assignee It is suggested that as a matter of principle an individual s constitutional rights are inalienable and not capable of assignment The commentary in Milman on Personal Insolvency Law Regulation and Policy Ashgate 2005 at p 59 is cited In the context of discussing personal rights in a chapter entitled The Bankrupt s Estate Milman states that the acid test seems to be whether the right is assignable if so it is capable of being brought within the boundaries of the estate However the authorities discussed by Milman leading to that conclusion involved assessment of whether the relevant personal right had economic value so as to vest in the trustee in bankruptcy One authority related to an expectation to renew a sea fishing licence another to the continuation of a tenancy under a statutory provision Neither the commentary in Milman nor either of those examples in my view has any relevance to the circumstances here Nor do they support B A s position when the real nature of his application and the only redress it could afford him if successful is analysed 37 A further distinguishing feature identified on behalf of B A is that B A s application arises out of matrimonial proceedings in which A A sought to set aside the 2001 Order which order is characterised as a consent order which provided for a decree of divorce and a financial settlement That characterisation in my view is not correct The consent element of the 2001 Order did not cover the decree of divorce the decree of divorce was an independent determination of the High Court O Higgins J on the basis as was recited in the order that the Court was satisfied that the requirements of s 5 1 of the Family Law Divorce Act 1996 had been complied with In the judgments which B A seeks to set aside there was a consideration as to whether the marital status of A A and B A could or should be interfered with as outlined at paras 8 and 14 above In my view it is not the case as suggested on behalf of B A that the judgments sought to be set aside by B A only indirectly concerned the estate and then not until after the consent order was set aside emphasis in original Having said that it will be necessary to consider and make a determination on whether the fact that the setting aside of the decree of divorce arose as an issue on A A s 2006 Application has a bearing on the nature of B A s claim to set aside the judgments of both Courts on that application and brings it into the personal category The Official Assignee s reply 38 On that last argument advanced on behalf of B A while acknowledging that the nature of the application brought by A A may be more a matter for A A rather than for the Official Assignee the response of the Official Assignee is that it is clear beyond argument that the specific application of A A related solely to B A s assets In addition to taking issue with that last argument counsel for the Official Assignee also takes issue with the other propositions advanced on behalf of B A In particular the reliance on behalf of B A on the decision in Anderson as authority for the proposition that B A s property and estate is vested in the Chapter 7 Trustee rather than in the Official Assignee is questioned In any event it is submitted that if there is a jurisdictional dispute as to how the concurrent bankruptcies should proceed this would have to be resolved between the Chapter 7 Trustee and the Official Assignee That is undoubtedly the case However the very unsatisfactory state of affairs which confronts this Court is that the only information before this Court as to the current position of the Chapter 7 Trustee in relation to B A s 2015 Application is his letter of 22nd July 2015 to the solicitors for the Official Assignee which is of limited assistance to the Court when faced with what in reality could evolve into a contest between B A and the Chapter 7 Trustee A A s submissions 39 As the respondent to B A s 2015 Application indeed the only respondent named in the notice of motion filed on 10th March 2015 A A was also a party to the locus standi issue No question was raised by B A or the Official Assignee as to the entitlement of A A to argue that B A does not have locus standi although counsel for B A acknowledged that A A may have an interest arising from being put to costs This is adverted to because there is reference in Milman op cit at p 55 to the decision of the House of Lords in Mulkerrins v PricewatershouseCoopers 2003 4 All E R 1 As explained by Milman that case concerned a right of action to sue a firm of insolvency practitioners for failure to process an individual voluntary arrangement proposal with the result that the claimant was unnecessarily adjudged bankrupt The claimant s cause of action was found not to vest in the trustee because the complaint did not crystallise until the bankruptcy commenced Milman states that notwithstanding this curious reasoning the House of Lords ruled that it was improper for the insolvency practitioners who had not been parties to the original ruling to seek to re litigate the point As is clear from the opinion of Lord Walker on an application by the claimant in the County Court of which PwC was not on notice it was ordered that the trustee in bankruptcy had no interest in the claimant s right of action against PwC Lord Walker stated at para 41 that whether that order was right or wrong it clearly and decisively determined the issue between the only two possible contenders for the right of action against PwC It was held that the practical effect of the order which bound the trustee in bankruptcy was that it was not open to challenge by PwC While the concern which that decision raises in the present context is that as things stand the only real contenders before the Court on the locus standi issue which is exclusively the product of B A being a bankrupt are the Official Assignee and B A in the light of the comments at the end of paragraph 38 as to the unsatisfactory state of affairs with which this Court is confronted there is also a concern that the Chapter 7 Trustee might claim in the future that if he had been joined by B A in the proceedings before this Court he would have had an opportunity to be heard by this Court However it is on B A that the onus lies to obviate those concerns In this connection the observation in the final paragraph of this judgment is pertinent 40 Broadly speaking A A adopted the same position on the locus standi issue as the Official Assignee namely that B A has no locus standi As regards the concurrent U S Bankruptcy it is submitted on behalf of A A that there is not a contest before this Court on B A s 2015 Application between competing jurisdictions The point is made that the Chapter 7 Trustee has not asked the courts of this jurisdiction for assistance in relation to this matter The suggestion is that what is happening here is that B A is trying to bypass the clear legal provisions of this jurisdiction Once again it is appropriate to reiterate that I consider that there is no satisfactory evidence before this Court as to the current attitude of the Chapter 7 Trustee to the substance of B A s 2015 Application 41 The foregoing is merely an outline of the submissions made by the respective parties Before attempting to narrow down the issues which the Court has to determine I consider that it would be useful to consider the authorities and academic commentaries cited by the parties so as to identify the relevant legal principles In so doing it is convenient to consider first the authorities which do not have what counsel for B A referred to as an international cross border dimension and then those which do by being concerned with concurrent bankruptcies in two jurisdictions Relevant legal principles per authorities academic commentary relied on by the parties Authorities which have no international cross border dimension 42 As is pointed out in Milman op cit at p 53 one of the most vexed issues in bankruptcy law concerns the fate of causes of action vested in the bankrupt prior to the date of his bankruptcy Milman states that a prior cause of action which is a thing in action within the meaning of the statutory provision in force in England and Wales and which corresponds to the definition of property in s 3 of the Act of 1988 will in general be viewed as an asset properly belonging to the estate citing Heath However Milman goes on to say that certain personal claims such as defamation actions or claims in respect of personal injury do not fall within the inclusive category in the definition of property and therefore remain the property of the bankrupt Milman then cites in a footnote fn 48 a number of authorities in support of that general proposition pointing in most of the cases to the nature of the claim for example damages for slander and wrongful dismissal In the same footnote Milman also states that a claim for matrimonial relief by a bankrupt spouse would also not pass to the trustee in bankruptcy citing by analogy D J v D S 1973 1 All E R 349 which was a decision of the family division of the High Court of England and Wales In that decision it was held that a husband s application under a statutory provision for variation of a post nuptial settlement in respect of property abated on his death I think it is reasonable to surmise that the reference to a claim by a bankrupt spouse in that footnote reflects the analysis in Heath outlined below which distinguishes prosecution of his claims by a bankrupt on the one hand and defence of claims against a bankrupt by him on the other hand 43 In Heath Hoffman L J as he then was in considering the effect of bankruptcy on a cause of action first considered the matter at a general level stating at p 1422 By section 306 of the Insolvency Act 1986 the bankrupt s estate vests in his trustee when appointed and by section 285 3 no creditor has after the making of a bankruptcy order any remedy against the property or person of the bankrupt in respect of any debt provable in the bankruptcy The effect is that the bankrupt ceases to have an interest in either his assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge What effect does this have upon legal proceedings to which he is a party We shall consider the position first when the bankrupt is plaintiff and secondly when he is defendant 44 By way of explanation as was pointed out by Kelly J in Quinn s 306 and s 285 3 do not differ materially from the provisions of s 44 and s 136 of the Act of 1988 While not specifically invoked by any of the parties on this application it is appropriate to record that s 136 1 provides as follows On the making of an order of adjudication a creditor to whom the bankrupt is indebted for any debt provable in bankruptcy shall not have any remedy against the property or person of the bankrupt in respect of the debt apart from his rights under this Act and he shall not commence any proceedings in respect of such debt unless with the leave of the Court and on such terms as the Court may impose Sub section 2 of s 136 provides that the section shall not affect the power of a secured creditor to realise or otherwise deal with his security Accordingly in general the effect of s 136 1 is that the only remedy available to an unsecured creditor is to prove in the bankruptcy for his debt 45 In Heath Hoffman L J went on to consider the position when the bankrupt is a plaintiff or claimant stating at p 1423 The property which vests in the trustee includes things in action Despite the breadth of this definition there are certain causes of action personal to the bankrupt which do not vest in his trustee These include cases in which the damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body mind or character and without immediate reference to his rights of property Actions for defamation and assault are obvious examples The bankruptcy does not affect his ability to litigate such claims But all other causes of action which were vested in the bankrupt at the commencement of the bankruptcy whether for liquidated sums or unliquidated damages vest in his trustee The bankrupt cannot commence any proceedings based upon such a cause of action and if the proceedings have already been commenced he ceases to have sufficient interest to continue them 46 As to the position where the bankrupt is a defendant Hoffman L J stated at p 1424 In cases in which the bankrupt is defendant there is of course usually no question of the cause of action having vested in the trustee Unless the defence is set off the bankrupt will not be asserting by way of defence any cause of action of his own But in cases in which the plaintiff is claiming an interest in some property of the bankrupt that property will have vested in the trustee And in claims for debt or damages the only assets out of which the claim can be satisfied will have likewise vested It will therefore be equally true to say that the bankrupt has no interest in the proceedings As we have seen section 285 3 deprives the plaintiff of any remedy against the bankrupt s person or property and confines him to his right to prove On the other hand there are actions seeking relief such as injunctions against the bankrupt personally which do not directly concern his estate They can still be maintained against the bankrupt himself and he is entitled to defend them and if the judgment is adverse to appeal 47 However Hoffman L J went on to state that it appears clearly from the decision of the House of Lords in Rochfort v Battersby 1849 2 H L Cas 388 that a bankrupt would not be entitled to appeal against an order which was enforceable only against his estate Hoffman L J set out the factual basis and the outcome of that case as follows at p 1425 The bankrupt was entitled to estates in Ireland subject to an annuity in favour of his mother He had mortgaged the estates to a creditor who brought foreclosure proceedings in which he joined the bankrupt his assignees and the annuitant The action raised the question of whether the mortgage had priority over the annuity and the Lord Chancellor of Ireland decided in favour of the annuitant The bankrupt alone appealed to the House of Lords which dismissed his appeal on the ground that he had no locus standi Lord Cottenham L C said at p 406 that the question was whether he had that interest in the subject matter which would entitle him to appear here as a party questioning the propriety of the decision below The bankrupt did not the courts have always considered these acts of Parliament as divesting the insolvent of all title and interest in the property which would authorise and justify him in entering into any litigation respecting it In this particular case the bankruptcy had occurred before the foreclosure proceedings were commenced and the House of Lords said that the bankrupt should never have been joined as a party in the first place But the reasoning would equally have precluded him from appealing if bankruptcy had supervened after the Irish proceedings had been concluded 48 Both in relation to circumstances where the bankrupt is plaintiff and where he is defendant Hoffman L J pointed to a statutory provision in force in England and Wales which the bankrupt may invoke where he is aggrieved because of the refusal of the trustee in bankruptcy to prosecute a claim or where the trustee will not appeal a decision against him The analogous provision in this jurisdiction is s 61 7 of the Act of 1988 which provides The exercise by the Official Assignee of the powers conferred by this section shall be subject to the control of the Court and any creditor or other person who in the opinion of the Court has an interest may apply to the Court in relation to the exercise or proposed exercise of those powers While expressing no view on the application of that provision to a person in B A s position it is to be noted that on B A s 2015 Application he is not seeking the directions of the Court his position is that he is entitled to bring that application irrespective of the view of the Official Assignee and without seeking the leave of the Court In that respect the observation in the penultimate paragraph of this judgment is pertinent 49 The decision of the Court of Appeal in Heath was considered by the High Court of New Zealand in De Alwis in a judgment delivered by Courtney J on 24th March 2012 which in turn was considered by the High Court Kelly J in Quinn In De Alwis the Court was considering inter alia a claim by the second defendant Mr Chean to set aside a judgment entered against him in the proceedings in 2007 following what is referred to as a formal proof hearing The basis of Mr Chean s application to set aside in general was that the plaintiffs had misled the Court at the formal proof hearing At the relevant times Mr Chean had been a director of the first defendant Luvit Foods International Limited The plaintiffs alleged that he induced them to invest in that company by making misrepresentations about the company s performance which were misleading and deceptive under a statutory provision and that he was in breach of another statutory provision The week before the hearing Mr Chean declared himself a bankrupt The solicitor acting for him and for the company obtained leave to withdraw In considering whether Mr Chean had standing to apply to set aside the judgment Courtney J considered a number of arguments advanced by counsel for Mr Chean As an alternative to his argument that Mr Chean s situation was distinguishable from Heath on the basis that the judgment against him post dated the adjudication which argument was rejected by Courtney J counsel submitted that the judgment against Mr Chean contained findings of a personal nature such that the right to set aside the judgment remained vested in him Further counsel submitted that the findings that Mr Chean made misleading statements were of a quasi criminal nature He submitted that the findings had affected Mr Chean s personal rights and reputation Courtney J found that none of those propositions was valid In a passage quoted by Kelly J in Quinn Courtney J stated at para 24 Self evidently nearly all claims that result in a judgment enforceable against the estate will involve allegations of wrongdoing by the defendant It would be a most surprising result if the principle articulated in Heath

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  • v Moojen L R 14 Eq 202 that an uncertified bankrupt cannot as plaintiff sustain a bill in equity to undo fraudulent treatment where the Court of Bankruptcy is competent to deal with the case The proper course for a defendant to adopt in the event of an uncertified bankrupt filing such a bill is to demur The doctrine is an old one that a bankrupt who has not obtained his certificate cannot sue in the Court of Chancery even though he should allege fraud and collusion in those who have charge of his property See Heath v Chadwick 2 Phill 649 Rochfort v Battersby 2 H L 407 The Court of Chancery will interfere even at the bankrupt s instance if the bankrupt is not able to relieve him against fraud The disability of a bankrupt to sue is not a personal disability but relates only to his property 13 In Rochfort v Battersby 9 ER 1139 1849 2 HL Cas 388 a bankrupt had previously held an entitlement to estates in Ireland that were subject to an annuity in favour of his mother These estates had been mortgaged to a creditor who later sought foreclosure The issue in the action was whether the mortgage over the estate took priority over the annuity in favour of the bankrupt s mother The Lord Chancellor of Ireland decided the case in favour of the mother and the bankrupt appealed to the House of Lords in England The key question was that which arises on this preliminary issue The headnote to the case records it as a principle of law that an insolvent debtor has not such an interest in property assigned under the Insolvent Debtors Acts as to entitle him to enter into any litigation respecting it Lord Cottenham LC stated the rule in a passage which is worth recalling in this context The relevant portion of the judgment appears at page 1147 of the English Reports thus The case of Collins v Shirley 1 Russell and Myl 638 1830 brings the case not more in principle but more in point of fact within the circumstances of the present case and as it seems to me they are identically the same There a bill of foreclosure had been filed against the insolvent and his assignees upon which the assignees disclaimed and offered to release The assignees claimed no benefit in the mortgage the title of the mortgagee had been prior to their own and they therefore abstained from litigating the point The discussion arose upon a question of costs The assignees withdrew from the contest and it remained only between the insolvent and the mortgagee The Master of the Rolls held that the assignees were not entitled to their costs but that Shirley had been made a party improperly and ought therefore to have his costs That was identically the same as here The assignees represented the property and were therefore properly made defendants But as to the insolvent the Master of the Rolls Sir John Leach said that he was improperly made a defendant the consequence was that the Court gave him his costs Now all these cases refer to the state of the matter as it stands on this appeal and shew that the insolvent under the Insolvent Debtors Act is not considered by the Court as having any such interest in the property as entitles him to enter into any litigation respecting it It cannot be stronger than this We find a bill filed by the insolvent alleging upon the face of it that there is a surplus which practically is made use of by him to shew that he had an interest but although the law would give him back again that surplus if it should ultimately arise the Court says Although you have alleged that fact a demurrer might be taken to that allegation on the ground that that fact does not under the statute give you such an interest as entitles you to sue upon it A demurrer is therefore held to be good to a bill filed by an insolvent although lie alleges a probable surplus and although he alleges combination and conspiracy to rob him as between the assignees and the creditors There cannot be a stronger proof therefore that the Courts have always considered these acts of Parliament as divesting the insolvent of all title and interest in the property which would authorize and justify him in entering into any litigation respecting it This objection ought to have been taken in the Court below and the bill ought to have been dismissed as against the insolvent but the Court did not adopt that course but made a decree apparently as if the party had not been an insolvent at all decreeing a foreclosure against him which might ultimately lead to a redemption by him 14 In Wylie s Judicature Acts Dublin 1906 another admired text that assists the elucidation of fundamental law the principle is reaffirmed That where a sole plaintiff becomes bankrupt he cannot continue the suit that any steps taken by him subsequently will be discharged upon the defendant s application that the assignee is must obtain an order to continue the proceedings in their own names or in the names of the bankrupt giving security of course if from the state of the action that course be more convenient as where the action had been set down for trial 15 The rule elucidated by Laffoy J in her judgment on this appeal is therefore of long standing It also is one which has been consistently applied Should a bankrupt consider that the assignee in bankruptcy has made an incorrect decision the remedy is to apply to the court supervising the estate According to Smith v Moffat 1865 LR 1 Eq 397 that should be the court before which the order was made The case however does not comment on concurrent bankruptcies in differing jurisdictions only on the availability of a remedy In Heath v Tang the effect of these decisions was summarised at 1425 by Hoffman LJ as demonstrating that as a matter of principle a bankrupt cannot appeal from a judgment against him which is enforceable only against the estate vested in the trustee in bankruptcy 16 Later in the judgement Hoffman LJ comments on the necessity to consider modern legislation in the context of the prevailing conditions at the time of its passage That decision affirms the continuation of the principle of divesting assets from the bankrupt This is a result which the status of bankruptcy carries At page 1427 he comments Nevertheless the principal that the bankrupt is divested of an interest in his property and liability for his debts remains fundamental in the new code The consequences for the bankrupt s right to litigate do not seem to us inconvenient or productive of injustice The bankruptcy court acts as a screen which both prevents the bankrupt s substance from being wasted in hopeless appeals and protects creditors from vexatious challenges to their claims 17 In the Bankruptcy Law Committee Report at paragraph 1 13 1 the purposes of bankruptcy are analysed The authors of the report state The main objects of bankruptcy legislation are 1 to secure equality of distribution and to prevent any one creditor obtaining an unfair advantage over the others 2 to protect bankrupts from indicative creditors by freeing them from the balance of the debts where they are unable to pay them in full and to help rehabilitate them 3 to protect creditors not alone from debtors who prior to bankruptcy prefer one or more creditors to others but from the actions of fraudulent bankrupts 4 to punish fraudulent debtors 18 Essential to the attainment of these purposes is that control over the estate in bankruptcy is transferred from the bankrupt to the Official Assignee Thereafter under the authority of the High Court and subject to the entitlement of interested parties to refer issues to that court the function of the Official Assignee is to collect in the property of the bankrupt and to manage the estate in bankruptcy Central to that role is the function vested in the Official Assignee to make decisions as to what litigation should be continued commenced or compromised for the benefit of the estate in bankruptcy That principle has been previously applied by this Court in Siroko v Murphy 1955 IR 77 That was an appeal where the issue was whether a bankrupt could continue an action against the supplier of linseed oil where the alleged result of using it was that the plaintiff s employee in his furniture workshop had contracted dermatitis thereby opening a claim in compensation Maguire CJ after a consideration of the authorities stated at page 80 It is plain upon all the authorities and I may add all the textbook writers that when the plaintiff became a bankrupt this action not being for a mere personal wrong was by act of law assigned to the Assignee in Bankruptcy The plaintiff thereupon became incapable of conducting it Personal wrong 19 The next matter to be considered is if there is any exception to this principle which is applicable to the circumstances of this bankrupt Here BA seeks to assert that the decision in the family proceedings resulted in the condemnation of his character and the rejection of his evidence and is therefore a personal wrong against him The authority of the Official Assignee over actions in which the bankrupt was interested or seeks to interest himself extends to all cases which affect the estate in bankruptcy It is not an exception to the principle that some aspect of litigation which the bankrupt wishes to appeal or otherwise continue relates to the personal honesty of the bankrupt In De Alwis v Luvit Foods International 2010 NZHC 418 24 March 2010 a bankrupt sought to set aside a judgement entered in 2007 on the basis that there had been deception by the plaintiff It was asserted by the bankrupt that as the judgement against him was founded on adverse findings of a personal nature that the right to set aside the judgement subsisted in him personally and not in the trustee in bankruptcy Courtney J rejected the proposition that a bankrupt had a right to challenge a judgement debt because it was ostensibly based on fraud The judge further rejected the proposition that any adverse finding of fact gave rise to any right of appeal in terms of human rights entitlements under the New Zealand Bill Of Rights Act 1990 20 To the principle of control by the trustee in bankruptcy over all of the estate and hence all the litigation of the bankrupt there is a limited exception This exception is expressly related to injury to the physical person and reputation of the bankrupt In The Law of Insolvency 4th edition 2009 by Professor Ian Fletcher that distinction is drawn at paragraph 7 008 thus Furthermore a distinction is made between proceedings which are designed to enforce a legal obligation owed by the debtor and those which are of a punitive character and brought on account of his personal misconduct In the latter type of case for instance proceedings for contempt of court for committal of defaulting trustee the court of bankruptcy will not intervene 21 On the positive side of the scale in terms of what actions may be instituted or continued by a bankrupt notwithstanding the bankruptcy a limited exception to the principle of disenabling any further action by the bankrupt survives allowing the bankrupt to take proceedings in his own name These exceptions are personal injury actions as where the bankrupt was injured in a road traffic or workplace accident either before or after the bankruptcy or where the bankrupt has been attacked physically as in assault or false imprisonment In addition it seems a bankrupt may defend his character if he has been defamed A bankrupt may also be personally liable for contempts against court proceedings and may be arrested and charged in the usual way if he is accused of having committed criminal offences Counsel on behalf of BA referred in argument to the possibility of taking a race discrimination case This it has been recognised in England and Wales can be an exception because the injury is to the person of the bankrupt as opposed to the trading nature of his estate Alternatively the claim may be a hybrid of both see Khan v Trident Safeguards Ltd 2004 EWCA Civ 624 2004 ICR 1591 The case of Ord v Upton 2000 Ch 352 2000 1 All ER 193 differentiated between a medical negligence claim against a doctor claiming damages for pain and suffering and a claim on the same ground for loss of earnings Such a hybrid claim was under the control of the trustee in bankruptcy and not under the control of the injured party it was held Aldous LJ put the matter thus at page 361 In modern parlance the bankrupt Mr Ord s claim is a single cause of action However I cannot accept counsel for the bankrupt s submission that the cause of action is personal It is a claim for damages for injury to his body and mind and also his capacity to earn and can therefore be considered as a hybrid claim in part personal and in part relating to property I have come to the conclusion that such an action vested in the trustee It would only have remained with Mr Ord if it fell within an exception established by the authorities to be excluded from the definition of property now found in section 436 of the Act of 1986 To do so it must relate only to a cause of action personal to the bankrupt All causes of action which seek to recover property vest in the trustee whether or not they contain other heads of damage to which the bankrupt is entitled The authorities lead to that conclusion 22 After a review of the precedents the most germane of which are analysed in the judgment of Laffoy J herein or in the previous judgment of this Court in Siroko v Murphy the judge then turned to what the duties were of the trustee in bankruptcy in circumstances where the trustee would pursue the action in loss of earnings for the benefit of the estate in bankruptcy and also recover damages for pain and suffering on behalf of the injured plaintiff The conclusions of the Court of Appeal of England and Wales on this issue point to the overarching control of litigation which the trustee in bankruptcy is obliged to exercise over the estate of the bankrupt At page 371 Aldous LJ stated The authorities are only consistent with the conclusion that the trustee is entitled to the damages for past and future loss of earnings and is not entitled to the damages for pain and suffering As there is a single cause of action it vested in the trustee There is in my view nothing in that conclusion which imposes practical difficulties with which the law cannot deal The trustee as constructive trustee would have to account to the bankrupt for the property which he obtained inadvertently or by arrangement in an action which vested in him for the benefit of the creditors The idea that the cause of action should vest in the bankrupt would not be acceptable and compulsory joinder of both could lead to difficulties when the claim for loss of earnings was small compared with the potential costs of the litigation In such a case the trustee if the cause of action vested in him would have to consider carefully his duty to the bankrupt and would probably if requested assign the cause of action to him 23 Whatever the examples the exception is one of principle it relates solely to injuries against or offences to the physical person of the bankrupt or to attacks on his character which sound in damages in his favour or to personal actions as to his conduct which may result in committal or imprisonment for contempt of court or other criminal imprisonment or punishment All of these exceptions are entirely unrelated to the size of the estate and its economic balance as to assets and debts on bankruptcy While the exceptions to the rule of control over actions by the Official Assignee stated in section 61 2 d of the Act of 1988 are defined in case law these exceptions are also entirely logical and consistent with the purposes and aims of the legislation Thus what can increase the amount of the estate in bankruptcy through litigation which results in the increase or decrease in what is available to creditors is entirely within the competence of the trustee in bankruptcy what may cause personal consequences for the bankrupt in litigation related to his misconduct and what may compensate him for injuries and assault or defamation is within the remit of the bankrupt These exceptions are not as to the economy of the estate in bankruptcy but are of matters personally to his benefit or detriment Right to be heard 24 BA also asserts the right to be heard This is curious given the circumstances He has been heard At the family proceedings in both 2001 and 2009 BA was fully represented The letters from the trustee in bankruptcy in the United States of America clearly assumes this as a fact More importantly the order of the High Court of 21st December 2001 recites the dates of the hearing and the attendance of counsel for the applicant BA and counsel for the respondent AA The order also references the production of affidavits pleadings and documents and recites that the court had heard the oral evidence of the witnesses whose names are set forth in an attached schedule of witnesses 25 It may be the case that a witness

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