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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> London and Global Ltd. (In Liquidation) v. Lamb & Anor [2004] IEHC 358 (15 November 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/358.html Cite as: [2004] IEHC 358 |
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[2004 1 EHC 358]
THE HIGH COURT
RECORD NUMBER: 1996 No. 2 FJ
IN THE MATTER OF THE JURISDICTION OF COURTS AND ENFORCEMENT OF JUDGMEMNTS ACT, 1998
BETWEEN:
LONDON AND GLOBAL LIMITED (IN LIQUIDATION)
PLAINTIFF
AND
PO ZHINKE LAMB (ALSO KNOWN AS PAUL LAMB)
AND MARGERET LAMB
DEFENDANTS
Judgment of Mr Justice Michael Peart delivered the 15th day of November 2004:
The first named defendant "Mr Lamb" brings two motions upon which I must decide in this judgment. The plaintiff has brought a motion also in which firstly he seeks to strike out those two motions on the basis that they are an abuse of process, and secondly an order restraining the first named defendant from bringing any further applications before the Court without first seeking leave to do so ( i.e. an order which has become known here as an Isaac Wunder Order"). Mr Lamb represented himself in these applications. Mrs Lamb's interests were represented by Counsel.
Application for an extension of time to appeal against Order of the Master dated 13th December 2000:
By order of that date, the Master of the High Court made an order that a judgment obtained in the English Courts on the 26th November 1996 against both of the defendants be enforced within the State. That judgment was in the sum of £587, 953, US$1,191,221.00, 20,085.52 French Francs, and Can $80,000.00. That judgment was obtained by the liquidator of the plaintiff company, the Court having made certain declarations that these and other monies represented payments by the defendants otherwise than bona fide for the purpose of the business of the plaintiff company.
It is worth reciting something of the background of the case. As appears from the affidavit of Mark Levy sworn on the present application on the 16th July 2004, both defendants were directors of the plaintiff company which was wound up by order of the High Court of England and Wales on the 14th December 1994. Prior to going into liquidation, the company had operated as a currency trader, broker and agent, although it had not been licensed so to do. The proceedings which resulted in the judgment against the defendants to which I have referred were commenced by the liquidator after the liquidator discovered that substantial sums had been withdrawn from the company's bank account without any satisfactory explanation.
Before the said judgment was granted a world wide Mareva injunction had been obtained against the defendants, which included a specific reference to them being precluded from disposing of a property in this State. Included in the terms of the said Mareva order is a proviso that the said injunction is not operative outside England and Wales "unless it is declared enforceable or enforced by a court in the relevant country". Mr Justice Barron made such an order in this jurisdiction on the 4th March 1996.
Following the granting by the Master of the High Court of the order dated 13th December 2000 by which the said English judgment was ordered to be enforced here, the defendants made an application to the High Court for an order "staying and/or discharging" the said Master's Order. That application came before Mr Justice Johnston who adjourned same in order to allow the defendants an opportunity, which they sought, to appeal in England against the English judgment itself. That appeal was subsequently dismissed by order dated 17th July 2001.
By separate Notice of Motion dated 23rd July 2001 the defendants sought to have the order granted by Mr Justice Barron varied or revoked. That motion and the previous motion to Johnston J. came back before him on the 31st July 2001 on which occasion both applications were dismissed.
The defendants, as they were entitled to do, appealed against these two orders of Johnston J. These appeals were not prosecuted in any timely way by the defendants and eventually on the 20th February 2004, both appeals were dismissed by the Supreme Court for want of prosecution. In the liquidator's submission, the dismissal of these two appeals has therefore left in place the said order of Mr Justice Barron dated 4th March 1996 which declared the Mareva injunction enforceable in this State, and the order of the Master dated 13th December 2000 allowing the English judgment to be enforced here.
However, following these events, the defendants nevertheless brought further applications before the Court in which they sought a stay on the said Order of Mr Justice Barron and the Order of the Master dated 13th December 2000. These applications came before Butler J. on the 22nd March 2004 who dismissed the applications on the basis that the enforcement procedure was completed upon the dismissal by the Supreme Court of the appeals to which I have referred. Mr Lamb served a Notice of Appeal against that order of Butler J. and that appeal is still extant before the Supreme Court.
On the 15th March 2004 Mr Lamb issued a further Notice of Motion seeking to have the same order of the Master dated 13th December 2000 declared void for want of jurisdiction, and sought to argue a new ground namely that the initial proceedings in England did not fall within the ambit of the Brussels Convention on the basis that he contends they are proceedings relating to the winding up of insolvent companies, and thus excluded from the scope of the Convention by Article 1(2) thereof. This was a point raised by way of appeal to the Supreme Court, which appeal was dismissed by the Supreme Court for want of prosecution. However, in any event, Mr Justice Herbert adjourned generally with liberty to re-enter this latest application for an order declaring the Master's Order void on the basis submitted, and the learned judge, according to Mr Levy, stated that such an application was in effect a new appeal against the order of the Master and that an application for an extension of time would first have to be sought. That is now the present application before this Court by Mr Lamb.
In order to successfully obtain such an extension of time to appeal against the order of the Master Mr Lamb would have to be in a position to satisfy this Court firstly that he had formed a bona fide intention to appeal within the time for doing so, namely within 6 days from the date of perfection of the said order; secondly there was in existence some element of mistake by which the appeal was not lodged within the time; thirdly that he has an arguable ground of appeal, and lastly that in all the circumstances of the case it is right that the Court should exercise its discretion to extend time for appeal. These matters arise from the well known judgment of Lavery J. in Eire Continental Trading Company Limited v. Clonmel Foods Limited [1955] I.R. 170.
The application to appeal against the order of the Master is the same application which came before Johnston J. and which he adjourned in order to allow the defendants to appeal in England against the English judgment. That appeal was dismissed, whereupon Johnston J on the 31st July 2001 refused the appeal from the Master's order. The Supreme Court subsequently dismissed the defendants' appeal against that refusal. The ground of appeal which Mr Lamb now wishes to put forward by way of appeal against the said Order of the Master, should he be granted an extension of time, is a ground which was available to him when he first brought his application to Johnston J. It was also a ground which was contained in his Notice of Appeal to the Supreme Court which was dismissed. Even if it is a good ground, (and I am satisfied that it is not, on the basis of the reasoning of Keane J. (as he then was) in Credit Suisse & Credit Suisse Canada v. C.H. (Ireland) Inc.(in liquidation), unreported, High Court, 2nd February 1996,) it is an abuse of process to now seek to fashion another opportunity to launch a further appeal on the basis of a ground which was available all the time.
I do not find the ground in any event to be even arguable and there is no need for me to elaborate at any greater length the submissions attempted by Mr Lamb. It is unarguable in my opinion, and he has not suffered any disadvantage in that regard by not being able to afford legal representation.
Neither in any event has any element of mistake been put forward. The circumstances of this case are set out by me above, and are even more fully set forth in the said affidavit of Mr Levy to which I have referred. Those facts speak for themselves. Both defendants, and for the purpose of this application Mr Lamb, has had every opportunity to appeal the order of the Master of the High Court, as well as the refusal of Johnston J to discharge or stay the said order. The dismissal of the appeals by the Supreme Court has achieved finality in the matter and there is nothing in the overall circumstances of this case which would warrant the requested extension of time in the interests of doing justice. I regard this application to be an abuse of the processes of the Court and I strike out the motion accordingly, but even if I did not do so, I would refuse the relief sought in the Notice of Motion dated 25th June 2004 on the merits and for the reasons stated.
Application to be allowed to join the State in these proceedings:
Mr Lamb in this application brought by Notice of Motion dated 13th July 2004 seeks leave of the Court to join the State in these proceedings "on the ground that the English Judgment given effect of enforcement by the Order of the Master made on the 13th December 2000 violates the juristic personal right of the State under Article 1 of the Constitution of 1937, it also constitutes an unjust attack against the State as a juristic person and the applicant in violation of Article 40.3.2 of the Constitution of 1937"(sic).
Because of my decision on the previous application for an extension of time, there is no need to deal with this application, other than to say, firstly, that it is yet another attempt by Mr Lamb to elongate and complicate the judicial process relating to the simple question of the enforcement in this State of a judgment, lawfully and properly obtained in England; and secondly, that in any event there is no question being raised as to the constitutionality of any legislation or indeed any matter which would require or justify the joinder of the State. It is another attempt to abuse the processes of the Court, and should be prevented. I refuse the application accordingly.
Application by the plaintiff for an "Isaac Wunder" order:
The affidavit of Mr Levy to which I have already referred sets out the long and troublesome history of the application by the plaintiff to enforce in this jurisdiction the said judgment of the English High Court. There is no need for me to restate that history. It speaks for itself. It is understandable that Mr Lamb should wish to avoid the consequences of the said judgment for as long as he legitimately can, and he enjoys the same right of access to our Courts as any other person under the Constitution, a right reflected also in Article 6(1) of the Convention of Human Rights and Fundamental Freedoms. He has been able to enjoy and exercise that right to an extent which has been completely reasonable. Indeed it would not be going too far to say that he has been indulged to a significant extent by the Courts during the relevant time.
Nevertheless there comes a time when the exercise of that constitutional right of access to the Courts interferes with another's right to finality of litigation, and indeed the right of the general public in that regard, given that the resources of the Courts in terms of time and cost are funded from taxpayers' money. That right to finality runs along side and independently of the right of the parties.
The order sought by the plaintiff is one which the Court can make in the exercise of its inherent jurisdiction to protect its processes from abuse. It is a jurisdiction which must be used sparingly, and only where it is clear that no injustice will arise. That assessment as to any possible injustice will usually involve a consideration of whether any reasonable and bona fide ground exists which ought to be litigated. In addition the Court can look at the entire history of the litigation to date, and consider whether it is reasonable to perceive it as "vexatious" and an abuse of process. There is helpful guidance to the circumstances in which the Court might make an Isaac Wunder order contained in the judgment of O'Caoimh J. in Riordan v. Ireland (No.5) [2001] 4 I.R.463 wherein the learned judge refers to a Canadian case, Dykun v. Odishaw (Unreported), Alberta Court of Queens Bench, Judicial District of Edmonton, 3rd August, 2000]. In the latter case a number of matters were considered as showing that a proceeding was vexatious. One such ground is "the bringing up on one or more actions to determine an issue which has already been determined by a court of competent jurisdiction". Another is described as "where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief". Yet another is "where the action is brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights". There are yet others set forth. But it is clear already that all three matters which I have set forth exist in the present case. The Court must nevertheless be on its guard against confusing the entitlement of a party to have proceedings struck out as disclosing no reasonable cause of action or as an abuse of process, with an application for an order referred to as an Isaac Wunder order. Simply because a litigant has issued proceedings which are vexatious or have no prospect of success, does not entitle hi/her opponent to obtain an order restraining the other party from mounting any further litigation against them without leave of the Court. It seems in my view to require more to be established than merely that the application or case has no prospect of success or is even an abuse of process. The Court must therefore look at the overall circumstances of the case including the length of time already consumed by the litigation to date, the nature of the claims being made, the number of appeals already found to be without merit, the manner in which the party in question has prosecuted his claim(s) and/or appeals, the reasonableness of the burden in costs being visited upon the other side, and any likelihood of success in recovery of those costs in the event that the plaintiff fails in his litigation, the extent to which the litigation can be regarded as being pursued bona fide for a legitimate purpose or whether they are being pursued rather for the purpose of what can be described generally as "putting off the evil day" or some other unworthy collateral purpose. This list is not intended to be exhaustive, but rather to give some indication of the type of matters I have in mind when considering whether in the present case an Isaac Wunder order ought in the interests of justice be granted.
Firstly I am satisfied for the reasons already stated that finality has already been achieved in the matter of the enforcement here of the said English judgment, by virtue of the dismissal of Mr Lamb's appeals in the Supreme Court. It is an abuse of process to further seek to litigate the ground of argument now put forward by Mr Lamb, and to seek to join the State as a party. I am further satisfied from a careful examination of the history of this litigation, that Mr Lamb is intent upon placing every possible procedural obstruction in the way of the plaintiff, whose duty to the English High Court and to the creditors of the plaintiff company is to conclude as expeditiously as possible the liquidation over which he was appointed. I am satisfied that this is his motivation, rather than the pursuit of any reasonably arguable ground. He has displayed an ability, a willingness and a propensity to lodge appeals and not proceed with them, thereby holding up the implementation of the order appealed against. He has done this both in this jurisdiction and in the English Courts. He obtained an adjournment here on the basis of pursuing an appeal against the English judgment, and then failed to prosecute that appeal. The same occurred in the Supreme Court here. Without repeating the history of this litigation, I believe that it is litigation now pursued for the purpose of oppression both of the liquidator and the creditors. That is not a legitimate purpose, and I am satisfied that unless restrained by this Court from doing so, Mr Lamb will continue to manipulate the Courts' procedures to achieve his illegitimate aim.
I am satisfied therefore that it is in the interests of justice between the parties, as well as in the wider interest of protecting the Courts' processes from abuse, being an interest of the general public for the reasons stated, that the Court now make an order restraining the first named defendant from making any further application to the Court in these proceedings, or commencing any further proceedings of any kind, without first seeking leave so to do.
I have not been requested to make any such order against the second named defendant, and I therefore refrain from doing so, but not without indicating clearly that in the event that she may decide that she ought to take up where the first named defendant has been forced to leave off, the plaintiff should seek such an order in her case also, whereupon the Court will consider whether it would be appropriate to extend the order to her also.
Approved: Judge Peart
