Dowling & ors -v- The Minister for Finance [2013] IEHC 299 (02 July 2013)

Judgment Title: Dowling & ors -v- The Minister for Finance

Neutral Citation: [2013] IEHC 299

High Court Record Number: 2013 5683 P

Date of Delivery: 02/07/2013

Court: High Court

Composition of Court:

Judgment by: Laffoy J.

Status of Judgment: Approved

Neutral Citation [2013] IEHC 299

THE HIGH COURT

[2013 No. 5683P]

IN THE MATTER OF INJUNCTION TO RESTRAIN THE MINISTER FOR FINANCE FROM RE-SELLING IRISH LIFE GROUP LIMITED AND IN THE MATTER OF SECOND COUNCIL DIRECTIVE 77/91/EEC AND IN THE MATTER OF DIRECTIVE 2001/34/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AND IN THE MATTER OF DIRECTIVE 2009/101/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AND IN THE MATTER OF DIRECTIVE 2004/25/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AND IN THE MATTER OF DIRECTIVE 2004/39/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL AND IN THE MATTER OF ARTICLE 63 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION AND IN THE MATTER OF ARTICLE 267 OF THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION

BETWEEN

GERARD DOWLING, PADRAIG McMANUS, JOHN PAUL McGANN, TIBOR NEUGEBAUR, PIOTR SKOCZYLAS, MURIEL SCORER, GEORG HAUG AND J. FRANK KEOHANE

PLAINTIFFS

AND

THE MINISTER FOR FINANCE

DEFENDANT

Judgment of Ms. Justice Laffoy delivered on 2nd day of July, 2013.

Proceedings and application in outline
1. These proceedings, which were initiated by a plenary summons which was issued on 5th June, 2013, relate to issues which already have been, or are being, litigated by the plaintiffs, or some of them, as applicants or plaintiffs in five separate proceedings in the High Court, in some of which there are defendants in addition to the defendant in these proceedings (the Minister). None of the plaintiffs in these proceedings has legal representation.

2. The application to which this judgment relates is an application for interlocutory injunctive relief, which was initiated by a notice of motion which the plaintiffs were given leave to issue on 5th June, 2013. The principal affidavits relied on by the plaintiffs on the application were sworn by the fifth plaintiff (Mr. Skoczylas). As has happened previously in related proceedings, as I understand it, at the hearing of the application Mr. Skoczylas made submissions to the Court on behalf of all of the plaintiffs. At the end of those submissions, the first plaintiff (Mr. Dowling), the second plaintiff (Mr. McManus), and the third plaintiff (Ms. Scorer) made short additional submissions to the Court.

3. In broad terms, the complaints of the plaintiffs, each of whom is a shareholder in Permanent TSB Group Holdings plc (Holdings), in respect of which they seek redress in these proceedings and in the related proceedings arise from actions taken by the Minister to recapitalise Permanent TSB plc (the Bank), which is a wholly owned subsidiary of Holdings, pursuant to the requirements of the Central Bank of Ireland and the obligations of the State to the Commission of the European Union (the Commission) and the International Monetary Fund in consultation with the European Central Bank, being collectively colloquially known as “the Troika”, and from subsequent actions taken by the Minister.

4. Before outlining the nature of the injunctive relief which the plaintiffs seek on this application, it is necessary to outline the relevant events in relation to Holdings and the Bank since 2009 to put the application into its factual and procedural context.

Factual and procedural context
5. The corporate structure of which Holdings and the Bank are part came into existence as a result of a scheme of arrangement which was sanctioned by order of the High Court (Clarke J.) on 11th January, 2010 pursuant to s. 201 of the Companies Act 1963 (the Act of 1963) in relation to a listed company then known as Irish Life & Permanent plc. The detail of the scheme of arrangement is not of relevance to the issues on the application before the Court. Suffice it to say that thereafter Holdings (by its then name Irish Life & Permanent Group Holdings plc) replaced the Bank (by its then name Irish Life & Permanent plc) at the top of the corporate structure and the existing shareholders of the Bank became shareholders of Holdings. The Bank became a wholly owned subsidiary of Holdings. Holdings subsequently became listed on the Enterprise Securities Market of the Irish Stock Exchange. The life assurance business of the Permanent TSB group (formerly the Irish Life & Permanent group) was at all material times, and is, carried out through the medium of Irish Life Group Limited (the Company) and its subsidiaries. The Bank was at all material times prior to 29th June, 2012 the sole shareholder in the Company.

6. In line with the obligations of the State referred to earlier, the Credit Institutions (Stabilisation) Act 2010 (the Act of 2010) was enacted. As the beginning of the long preamble to that Act indicates, it was enacted to make provision, in the context of the National Recovery Plan 2011 – 2014 and the European Union/International Monetary Fund Programme of financial support for Ireland, in relation to the stabilisation and the preservation or restoration of the financial position of certain credit institutions. Part 2 of the Act of 2010, which is headed “Direction Orders”, was subsequently deployed by the Minister to propose and obtain, consequent on an ex parte application to the High Court, three direction orders pursuant to s. 9 of the Act of 2010. In the case of two of the direction orders, the plaintiffs, or some of them, have brought applications to the High Court under s. 11 of the Act of 2010 seeking to set aside the direction orders. The first direction order, which was made in June 2010, provided that the Minister could prepare for the sale of the Company by Initial Public Offering or private sale. That order has not been challenged. The second direction order was made by the High Court on 26th July, 2011 (the July 2011 Direction Order). The context in which that order was made was that the Bank was required, pursuant to the capital requirements of the Central Bank, to raise €2.9 billion before 31st July, 2011, which it was unable to do, in consequence of which the State was required to invest the capital in the Bank. The July 2011 Direction Order provided for the investment by the Minister of up to €3.8 billion in Holdings, which was partly effected by a subscription of €2.3 billion for what became effectively 99.2% of the issued share capital of Holdings. Insofar as is relevant for present purposes, the effect of the July 2011 Direction Order was that the Minister became a 99.2% shareholder in Holdings, which gave him control of Holdings, and through Holdings, control of the Bank.

7. Mr. Dowling, Mr. McManus, Mr. Skoczylas and a company controlled by Mr. Skoczylas brought an application to the High Court (Record No. 2011/ 239 MCA) (the 2011 Application) pursuant to s. 11 of the Act of 2010 seeking to set aside the July 2011 Direction Order. That application, which has been subject to a number of applications to the High Court and is the subject of case management, is still pending. On 2nd March, 2012, judgment was given in the 2011 Application by Feeney J. (Neutral Citation [2012] IEHC 89) dismissing an application by the Minister seeking to dismiss the application of, inter alia, Mr. Skoczylas on the grounds that he was not a member of Holdings or of the Bank at the date of the application and, therefore, did not have standing to bring the application. The Court was informed that that decision is under appeal to the Supreme Court. That is immaterial for present purposes, because no issue was taken that Mr. Dowling and Mr. McManus, who are plaintiffs in these proceedings, did not have standing. A further judgment was delivered in the 2011 Application by Charleton J. on 21st February, 2013 (Neutral Citation [2013] IEHC 75), which resulted in the joinder of Holdings and the Bank in the proceedings for a “limited and specific role”. Of more significance for present purposes is that Charleton J. held that the applicants on the 2011 Application could not pursue a challenge to the constitutionality of s. 11 of the Act of 2010 on the 2011 Application. That led to the initiation of the plenary proceedings referred to later. Since then, the 2011 Application has been subject to case management by the President of the High Court. My understanding is that an issue as to the entitlement of the applicants to discovery against the Minister is due to be heard.

8. The third direction order has been challenged by some of the plaintiffs. It is an order made on 28th March, 2012 (the March 2012 Direction Order), whereby the Bank was directed to sell the Company and its subsidiaries to the Minister for the sum of €1.3 billion, such sale to be completed not later than 30th June, 2012, and the Bank was directed to take certain specified steps preparatory to and necessary for the completion of the sale. All of the plaintiffs in these proceedings other than Ms. Scorer and the company controlled by Mr. Skoczylas brought an application in the High Court (Record No. 2012 / 116 MCA) (the 2012 Application) seeking to set aside the March 2012 Direction Order. The application was heard by Peart J. who delivered judgment on 28th June, 2012 (Neutral Citation [2012] IEHC 436). The decision of Peart J. was to refuse to set aside the March 2012 Direction Order. The sale of the Company and its subsidiaries to the Minister was subsequently completed.

9. In these proceedings the plaintiffs who are parties to the 2012 Application complained that, because of the failure to perfect the order of Peart J., they were not in a position to file a notice of appeal against that decision until 10th June, 2013. The position of the Minister is that he does not accept that the applicants in the 2012 Application are entitled to appeal, having regard to s. 64 of the Act of 2010. Sub-section (2) of s. 64 provides as follows:

“A direction order . . ., and an order varying such an order or setting it aside, is final and no appeal lies from the order of the [High Court] to the Supreme Court except with the leave of the Court.”

Sub-section (3) provides that the Court shall grant leave under subs. (2) only if the Court certifies that its decision involves a point of law of exceptional public importance and it is desirable in the public interest that an appeal should be taken to the Supreme Court. This Court has not been informed that an application under s. 64(3) had been made to Peart J. and, in the circumstances, it must be assumed that no such application has been made. That leaves this Court is a rather awkward situation, as the possibility of an appeal against the decision of Peart J. cannot be ruled out. In the circumstances, it seems to me that the proper course for this Court to adopt is to treat the 2012 Application as not having been finally determined solely for the purpose of determining this application.

10. The implementation of the March 2012 Direction Order by the sale of the Company and its subsidiaries was, in reality, the sale of the insurance business of the Permanent TSB group of companies. Such a sale, including the possibility of a sale effected as a private sale, had been in prospect from June 2011. In fact, following the decision of Peart J., the Minister acquired the Company and its subsidiaries on 29th June, 2012 for the consideration of €1.3 billion. On 2nd December, 2012, it was reported in the media, in the Sunday Business Post, that the Minister’s Department had re-opened talks on the sale of “the insurance company” to Canada Life a year after the parties had failed to agree on a price. Mr. Skoczylas obviously became aware of the media reports, because by letter dated 5th January, 2013 to the Minister, he threatened further legal action to stop the sale to Canada Life, if there was no confirmation from the Minister within a week that he would “not sign with Canada Life, or any other potential buyer, any re-sale” of the Company, meaning, obviously, a contract for the sale by the Minister, until the then pending proceedings were ultimately adjudicated on. In the correspondence which subsequently passed between Mr. Skoczylas and the solicitors on record for the Minister, Arthur Cox, culminating with a letter of 15th February, 2013 from Arthur Cox to Mr. Skoczylas, the position adopted by the Minister was that he did not intend to comment in relation to the proposals, if any, he may have had in relation to the Company. However, all of the allegations made by Mr. Skoczylas in the correspondence were denied.

11. During the course of that correspondence the plaintiffs in these proceedings other than the eighth plaintiff (Mr. Keohane) presented a petition to the Court on 25th January, 2013 invoking, inter alia, the provisions of s. 205 of the Act of 1963 (Record No. 2013 36 COS) (the s. 205 Proceedings). The respondents on the s. 205 Proceedings are eleven individuals and the Minister. Nine of the eleven individuals were directors of Holdings and the Bank when the petition was presented and the remaining two were directors of the Company and were former directors of both Holdings and the Bank. In the s. 205 Proceedings the petitioners therein have sought various forms of relief to redress their allegations that the respondents have conducted the affairs of Holdings in a manner oppressive to them and in disregard of their interests as members. Reference will be made later to the specific reliefs invoked by the plaintiffs on this application.

12. On the morning of 19th February, 2013, counsel for Horizon Growth Fund N.V. (Horizon), which was the other applicant the standing of which was challenged in the 2011 Application by the Minister, whose challenge was also rejected by Feeney J. in his judgment of 2nd March, 2012, indicated to this Court that Horizon wished to apply for an order to restrain the sale of the Company to Canada Life. The Court made it clear that it would not entertain such an application on an ex parte basis and that the Minister should be notified of any proposed application. The matter was put back to two o’clock that day, when counsel for Horizon appeared, as did Mr. Skoczylas. The Minister was also represented by counsel. The Court was informed that the Minister had signed the contract for sale of the Company to Canada Life at 1pm that day and that the sale was due to be completed in July 2013, subject largely to regulatory approval in the meantime. Mr. Skoczylas persisted in the position that he wished to bring an application for injunctive relief. The Court gave him leave to issue a notice of motion by lunchtime the following day returnable for 26th February, 2012 and it did so against the background of a submission on behalf of the Minister that the Minister would like to dispose of the interlocutory proceedings as quickly as possible. There was also some discussion as to whether it was appropriate, as Mr. Skoczylas proposed doing, to bring the application for interlocutory relief in the s. 205 Proceedings. However, the Court left that to the discretion of Mr. Skoczylas. Later that day, Mr. Skoczylas, by e-mail, informed, inter alia, the solicitors on record for the Minister and the registrar of the Court that the petitioners in the s. 205 Proceedings did not intend to pursue the application for injunctive relief at that stage. The notice of motion which Mr. Skoczylas was given leave to issue was not issued.

13. As regards the sale of the Company and its subsidiaries, the replying affidavit of John Cantwell, the Acting Head of the Shareholding Management Unit of the Minister’s Department, sworn on 12th June, 2013 discloses that the purchaser of the Company is Canada Life, a company incorporated in England and Wales, and a group company of Great-West Lifeco Inc., a Canadian listed company, each of which has various obligations in the legal documentation in relation to the sale. For convenience, the purchaser in the share purchase agreement (the Contract) will be referred to as Canada Life. Since 19th February, 2013, Canada Life has sought the approval of the Commission, the Central Bank, the Financial Services Authority in the United Kingdom and the Office of the Superintendent of Financial Institutions in Canada in relation to the acquisition of the Irish Life insurance business via the acquisition of the Company. On 31st May, 2013, Canada Life received notification from the Commission that the Commission would not oppose the notified transaction. Mr. Cantwell averred that, at the time he swore his affidavit, the other regulatory approvals had not been received but were expected shortly. Mr. Cantwell explained that, following receipt of the final regulatory approval, and assuming that the other terms of the Contract have been satisfied, Canada Life has ten business days in which to pay the Minister €1.3 billion in consideration and to proceed to completion of the purchase. The position is that, barring any unforeseen material breach of warranty or a regulator refusing approval, both the parties are contractually bound to complete the transaction. When he swore his affidavit, Mr. Cantwell’s best estimate of the closing date in accordance with the provisions of the Contract was that it would be 10th July, 2013. Mr. Cantwell further disclosed that, if the transaction does not close by 31st October, 2013, which he referred to as the “long stop date”, because any condition has not been satisfied, or a regulatory condition will not be satisfied by that date, or the parties, acting reasonably, agree that any condition has become incapable of being satisfied prior to that date, then either party will be entitled to terminate the Contract.

14. Subsequent to the judgment of Charleton J. of 21st February, 2013 in the 2011 Application, plenary proceedings were initiated by –

(a) Mr. Dowling, Mr. McManus and Mr. Skoczylas as plaintiffs (Record No. 2013/2708P), and

(b) the other plaintiffs in these proceedings (Record No. 2013/2709P), in each of which actions (collectively referred to as the Plenary Proceedings) the plaintiffs therein seek to challenge the constitutionality of the Act of 2010 on various grounds.

15. The current position in relation to the s. 205 Proceedings is that they are being case managed by the Court, there having been a number of interlocutory applications brought in those proceedings. One interlocutory application was an application by the petitioners in the s. 205 Proceedings seeking an interlocutory injunction restraining the respondents from undertaking any actions to terminate the directorship of Mr. Skoczylas in Holdings until the adjudication of the s. 205 Proceedings. That application was heard by Gilligan J. who delivered judgment on 27th March, 2013 (Neutral Citation [2013] IEHC 129), in which he refused that relief. The petitioners had also sought on that application a preliminary reference to the Court of Justice of the European Union (CJEU) under Article 267 of the Treaty on the Functioning of the European Union (the TFEU) in relation to certain questions of interpretations of EU law. In dealing with that aspect of the application Gilligan J. stated (at para. 49):

“The Court exercises its discretion to refuse the preliminary reference sought by the petitioners under art. 267 TFEU on this application. Such a decision as to the making of a preliminary reference would be premature at this stage and is more appropriate for consideration at the substantive trial of the action.”

16. The petitioners brought an appeal against the judgment and order of Gilligan J. to the Supreme Court. The judgment was delivered by the Supreme Court on 16th May, 2013 (Neutral Citation [2013] IESC 25). The appeal was dismissed. The judgment of the Supreme Court was delivered by Hardiman J.. Mr. Skoczylas has relied on a number of passages from that judgment. First, Hardiman J. made the following observation as to the argument advanced on the basis of European law:

“It appears to the Court, as it appears in relation to the domestic law issues, that the jurisdiction which the Court enjoys under s.205 is broad enough to allow the Court to put in place any appropriate remedy that may be necessary to provide a remedy for any breach of European Law which may be made out. Thus, there does not appear to be any remedy which might be given at this stage that could not also be given after the trial so that the only issue that arises is one of a delayed rather than a refused remedy.”

Later, Hardiman J., having alluded to the possibility that Mr. Skoczylas would not be re-elected to the Board of Holdings at the Annual General Meeting of Holdings which was due to take place less than a week later, stated:

“. . . the Court believes that its powers under a s.205 application, if the petitioners are successful, are very wide and will enable it to take every possible step to compensate the petitioners for the wrong which will have been done to them if they are successful with their petition.”

Hardiman J. concluded with the following observations, on which Mr. Skoczylas also relied:

“The Court will end with a reflection of what it said at the start. The petitioners have plainly shown a very serious issue to be tried being the issues raised in the s.205 Petition and it is manifestly necessary in the interest of the Company that its conduct during the probable period of exclusion of Mr. Skoczylas following the refusal of relief reflects the possibility that he will be successful in these proceedings.”

The reliefs sought on this application
17. Essentially, the plaintiffs have sought two distinct reliefs on this motion, which require to be considered separately.

18. The first relief is an order by way of interlocutory prohibitory injunction restraining the defendant from completing the sale of the Company until:

(A) the adjudication of the 2011 Application;

(B) the adjudication of an appeal from the orders and judgments of Peart J. in the 2012 Application;

(C) the Court has adjudicated upon certain reliefs sought in the Plenary Proceedings, the terms of which reliefs, as set out in the notice of motion, are replicated in the Appendix A attached to this judgment; and

(D) the Court has adjudicated upon certain reliefs sought in the s. 205 Proceedings, the terms of which reliefs, as set out in the notice of motion, are replicated in Appendix B annexed hereto.

19. The second relief sought, which is expressed to be further to, and without prejudice to, the first relief is framed as follows:

“Further, and without prejudice to the foregoing, in respect of matters relating to provisions of European Union law raised by the Plaintiffs in the within proceedings – if the Honourable Court is uncertain regarding the interpretation of those provisions of European Union law and if the Honourable Court considers that a decision on the relevant matters raised by the Plaintiffs is necessary to enable the Honourable Court to give judgment in the within proceedings – an order pursuant to Article 267 of the Treaty on the Functioning of the European Union that the questions, or some of the questions, raised in the Schedule hereof be referred to the European Court of Justice for preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union.”

There is attached to the notice of motion a schedule headed “Questions for possible reference to the European Court of Justice”, which sets out no less than forty possible questions, most of which repeat questions outlined in a schedule to the petition in the s. 205 Proceedings and which the petitioners seek to have referred to the CJEU pursuant to Article 267 of the TFEU. Only two questions in the schedule attached to the notice of motion specifically relate to the application for interlocutory relief and they are framed as follows:

“1. Would the full effectiveness of European Union law be impaired if a rule of national law could prevent a court seised of a dispute governed by European Union law from granting interlocutory relief that is sought in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under European Union law? Would a court which in those circumstances would grant interlocutory relief, if it were not for a rule of national law, be obliged to set aside any such rule?

2. Should the High Court grant the interlocutory injunction to restrain the Defendant from re-selling an asset whose legal ownership is subject to ongoing legal proceedings, given that the ownership and original sale of that asset is challenged in court based inter alia on alleged breaches of European Union law?”

Submissions
20. The Court has had the benefit of written submission from Mr. Skoczylas, supported by oral submissions. The Court has also had the benefit of written and oral submissions from counsel for the Minister. In view of the time constraint under which the Court has had to produce this judgment it is not practicable to summarise the submissions made by the parties, nor, indeed, do I consider that it is necessary to do so. However, it is important to record what has been set out by Mr. Skoczylas in his written submissions, which are described as “Summary Oral Submissions”, as to what this application is about, because it does identify the plaintiffs’ core complaint. Mr. Skoczylas submitted that the proceedings are essentially about the legal ownership of the Company and the legality of the original acquisition of this asset by the Minister. It was submitted that the sale of the Company must not be completed before the legal ownership of the asset and the legality of the original acquisition of the asset has been confirmed by the Court. This is because, it was submitted, a re-sale would “permanently and irreparably” prejudice the adjudication upon the reliefs sought by the plaintiffs, because such reliefs would become “completely or partly moot” and the effectiveness of EU law in respect of the reliefs “would be abrogated”. The object of seeking the injunction, it was submitted, is “to defend the plaintiffs’ constitutionally protected right to vindicate through courts their property rights and minimum rights enshrined in EU law”.

21. Mr. Skoczylas alleged that the Minister had perpetrated egregious breaches of EU law in the acquisition of his 99.2% shareholding in Holdings and in his acquisition of the Company and its subsidiaries from the Bank. Mr. Skoczylas has identified the alleged breaches in question by reference to the various European law instruments named in the title to these proceedings. In relation to the alleged breaches of the Second EU Directive on Company Law (77/91/EEC), Mr. Skoczylas has exhibited in his second affidavit, which was sworn on 14th June, 2013, a legal expert opinion of Professor Eddy Wymeersch dated 14th June, 2013, by reference to which he has identified alleged breaches of the Second Council Directive. If the alleged breaches occurred, then an issue does arise as to the legality of the Minister’s acquisition of a majority shareholding in Holdings, which, in combination with the March 2012 Direction Order, empowered him to acquire the Company and the insurance business from the Bank for €1.3 billion. That issue cannot be determined on this application. However, I think it is pertinent to record two matters overlooked by Mr. Skoczylas in his submissions. The first is that, to acquire the majority shareholding in Holdings, the Minister subscribed €2.3 billion. Secondly, he did so at a time when, as is stated in the preamble to the Act of 2010, measures were “necessary to address an unique and unprecedented economic crisis which has led to difficult economic circumstances and severe disruption to the economy”.

Issues
22. On the basis of the submissions made by the parties, the issues which I consider the Court must now address are the following:

(a) a technical issue in relation to the endorsement of claim on the plenary summons raised on behalf of the Minister;

(b) the Minister’s submission that the plaintiffs do not have standing to bring these proceedings;

(c) the criteria which the Court has to apply in determining whether the interlocutory injunctive relief sought by the plaintiffs should be granted and the application of those criteria;

(d) the issue of delay and laches raised on behalf of the Minister; and

(e) whether it is appropriate to make a reference to the CJEU pursuant to Article 267 of the TFEU.

Technical defect in plenary summons
23. The plaintiffs’ claim as set out in the general endorsement of claim in the plenary summons mirrors the relief claimed in the notice of motion. The first relief sought is an order “by way of interim and/or interlocutory prohibitory injunction” in precisely the same terms as is set out at A, B, C and D of the notice of motion outlined earlier. The second relief claimed is a reference to the CJEU pursuant to Article 267 of the TFEU in similar terms to the terms set out in the notice of motion, which, as regards interim relief, have been quoted earlier.

24. It was submitted on behalf of the Minister that the plaintiffs were merely seeking interlocutory relief which, it was suggested, was entirely divorced from any pleaded cause of action and, accordingly, that they were in breach of the principle laid down by the Supreme Court in Caudron v. Air Zaire [1985] I.R. 716. In that case, the factual matrix necessitated an application to Court for leave to serve outside the jurisdiction under Order 11 of the Rules of the Superior Courts (the Rules). That complication does not arise in this case. These proceedings are related or connected to the various proceedings outlined earlier in which the substantive reliefs being sought by the plaintiffs, or some of them, and the legal bases therefor are clearly identified. The plaintiffs’ position in seeking an interlocutory injunction, as I understand it, is to preserve the status quo pending the determination of those proceedings. To resolve the deficit identified by counsel for the Minister, at the hearing, the plaintiffs were given leave by the Court to issue an amended plenary summons, which they did on 21st June, 2013. The first relief claimed on the endorsement of claim is a declaration that the Minister is precluded from completing the sale of the Company if it is determined by the Court that the original purchase of that asset by the Minister was illegal due, inter alia, to breaches of European Union law. The second relief claimed, which relates to the prohibitory injunctive relief, is framed as an order by way of “permanent” prohibitory injunction. I am satisfied that, insofar as there was any merit in the technical point raised on behalf of the Minister, it has been resolved.

Whether the plaintiffs have standing
25. The basis of the Minister’s contention that the plaintiffs do not have the requisite standing to bring proceedings attempting to restrain the sale by the Minister of the Company is that the Minister owns all the share capital in the Company, and none of the plaintiffs is a shareholder in the Company. The Minister relied on the judgment of Peart J. in the 2012 Application, in which it was decided that such of the plaintiffs as were applicants on that application did not have standing to seek an order under s. 11 of the Act of 2010 setting aside the March 2012 Direction Order. Aside from the possibility of an appeal, that is not a complete answer to the plaintiffs’ case that they have locus standi to bring this application.

26. As I understand their case, the contention of the plaintiffs that the Minister does not have title to sell the asset in question, that is to say, the Company and its subsidiaries, to Canada Life, is two-pronged. The first prong is anterior to the second prong, namely, their contention that the March 2012 Direction Order should be set aside. The first prong is that the July 2011 Direction Order should be set aside. While there was an issue as to whether Mr. Skoczylas has standing to challenge that order on the basis that his name was not on the register of members, as I have recorded earlier, Feeney J. in his judgment in the 2011 Application found that he did have standing. Even though that decision is, apparently, subject to appeal to the Supreme Court, the standing of Mr. Dowling and Mr. McManus to seek an order setting aside that order has not been challenged. Without expressing any view as to whether what flowed from the July 2011 Direction Order, that the Minister acquired a majority shareholding in Holdings, was a necessary preliminary step to the Bank being ordered to sell the Company and its subsidiaries to the Minister, as happened pursuant to the March 2012 Direction Order, I have come to the conclusion that it is appropriate for the Court to assume for the purposes of this application that the plaintiffs, or some of them, have standing to bring this application.

Relevant criteria for determination of application for injunctive relief and their application
27. It was submitted by Mr. Skoczylas that, because the plaintiffs contend that the Minister egregiously breached EU law, EU law requires the Court grants the injunction sought and that any national rules suggesting otherwise must be set aside. On this point he relied on the judgment of European Court of Justice in Case C – 213/89 R v. Secretary of State for Transport, ex parte Factortame [1990] ECR 1 – 2433. As is explained in Wyatt and Dashwood’s European Union Law (2011 Ed.) (at p. 303), the main case concerning the availability of interim relief against Member State action alleged to infringe one’s rights under European Union law remains the decision in the Factortame case. The editors quote the following passage from the judgment, which was also quoted by Mr. Skoczylas in his written submissions:

“The Court has also held that any provision of a national legal system and any legislative, administrative or judicial practice, which might impair the effectiveness of Community law by withholding from the national courts having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with those requirements, which are the very essence of Community law . . .. Consequently, the reply to the question raised should be that Community Law must be interpreted as meaning that a national court which, in a case before it concerning Community law, considers that the sole obstacle which precludes it from granting interim relief is a rule of national law must set aside that rule.”

As the editors point out, the Factortame judgment confirmed that interim relief must be available, in principle, so as to secure the effectiveness of rights derived from Union law, but it did not address the question of the criteria to be applied in granting or withholding such interim relief.

28. The decisions of the Court of Justice identified by the editors of Wyatt and Dashwood in which the relevant criteria were considered (Cases C - 143/88 and C - 92/89 Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest [1991] ECR I-415; and Case C - 465/93 Atlanta Fruchthandelsgesellschaft mbH v. Bundesamt für Ernährung und Forstwirtschaft [1995] ECR I-3761) were recently considered by the Supreme Court in Pringle v. The Government of Ireland [2012] IESC 47. The Supreme Court did not consider it necessary in that case to analyse whether, and if so to what extent, there are substantial or material differences between the test laid down in that jurisprudence and the Campus Oil test referred to later (cf. judgment of Clarke J. at para. 9.12). In any event, I have come to the conclusion that, because of the nature of the plaintiffs’ allegations of breach of European Union law, the Zuckerfabrik/Atlanta test is not the appropriate test in this case.

29. That conclusion is based on the commentary in Wyatt and Dashwood (at p. 305). There, the editors considered whether the rulings in Zuckerfabrik and Atlanta raised the question whether substantive criteria for the grant of interim relief against allegedly invalid Union measures would also be extended to cover “Factortame style situations”, where the claimant is challenging purely national measures allegedly adopted in breach of Union law. They pointed out that in the recent case of Unibet (Case C-432/05 Unibet [2007] ECR 1-2271), the Court of Justice held that the substantive conditions under which interim relief is to be granted by national courts, in respect of allegedly unlawful national measures, are to be determined “in accordance with the usual Rewe/Comet framework of national procedural autonomy, equivalence and effectiveness”. As is pointed out in Kirwan on Injunctions Law and Practice (at para. 10.95) it has been held by the ECJ in the Rewe case (Case C – 33/76 Rewe-Zentralfinanz AG v. Landwirtschaftskammer für das Saarland [1976] ECR 1989), that it is for the domestic legal system of each Member State to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from direct effect Community law.

30. Accordingly, I have come to the conclusion that the proper course in this case is to apply the criteria laid down by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy (No. 2) [1983] I.R. 88 as to when it is appropriate to grant an interlocutory injunction. Accordingly, the issues which the Court has to address, as formulated in B & S. Limited v. Irish Auto Trader Limited [1995] 2 I.R. 142, and recently reiterated by the Supreme Court in Okunade v. Minister for Justice, Equality and Law Reform [2013] 1 ILRM 1 are:

(a) whether the plaintiffs have shown that there is a fair

or bona fide

or serious question to be tried;

(b) whether damages would be an adequate remedy for the plaintiffs if they were refused an injunction and were subsequently successful at the trial of the action;

(c) whether the plaintiffs have given an undertaking as to damages which would adequately compensate the Minister if the injunction were granted and the Minister was subsequently successful at the hearing of the action; and

(d) whether the balance of convenience lies in favour of the grant or the refusal of an injunction.

I will consider each of those criteria.

Fair issue to be tried
31. On the first day of the hearing, Mr. McCullough, S.C., on behalf of the Minister intervened during Mr. Skoczylas’ legal submissions to inform the Court that, for the purposes of the plaintiffs’ interlocutory application, the Minister was happy to accept that the plaintiffs have a fair issue to be tried in at least one of the various sets of proceedings that they have before the Court. Mr. McCullough indicated that the Minister accepted that there was a fair issue to be tried in relation to the March 2012 Direction Order which the plaintiffs wish to appeal, although the Minister would contend that it is not open to the plaintiffs to appeal. However, it was made clear that the Minister would be relying on the technical point in relation to the deficiency in the endorsement of claim in the plenary summons. The concession made on behalf of the Minister was a sensible concession, even if it did not achieve its objective of foreshortening the hearing which ran into a third day. Even if the Minister had not made the concession, the Court would have to conclude that there are many fair issues to be tried in the multiplicity of proceedings before the Court which go to the issue as to whether the Minister has title to the asset in issue between the parties, that is to say, the Company and its subsidiaries, and has power to sell it to Canada Life. Accordingly, I am satisfied that the first criterion has been complied with.

32. Before considering the remainder of the criteria, I propose outlining the evidence contained in Mr. Cantwell’s affidavit as to the importance of the sale to Canada Life being completed in accordance with the terms of the Contract between the Minister and Canada Life.

Evidence of consequences of delaying the sale to Canada Life
33. Having outlined the contractual significance of the so-called long stop date, 31st October, 2013, Mr. Cantwell has averred that there would be detrimental consequences should Canada Life withdraw at that point. He has then apprised the Court of the “very serious consequence of forestalling the sale” in the manner sought by the plaintiffs. In particular, he has averred that, even if the parties agreed to extend the closing date, which is something which cannot be guaranteed, any such extension would be severely prejudicial to all parties, particularly the Minister.

34. From the Minister’s perspective the focus is on the fact that when the sale is completed the Minister will be paid €1.3 billion. The consequences of the Minister not being paid that sum on the closing date, anticipated to be 10th July, 2013, are outlined as follows:

(a) As the Minister borrowed €1.3 billion to acquire the Company in June 2012, it currently costs the State approximately €4.7 million per month “to hold” the Company. The State simply cannot afford delay in completion beyond the agreed closing date.

(b) The only consideration which the Minister will receive if the Contract is completed is the purchase price of €1.3 billion and a dividend of €40 million, which, in fact, was paid to the Minister on 7th June, 2013. The point emphasised by Mr. Cantwell is that any profits or losses generated by the Company pending completion, except the €40 million dividend, are for the account of Canada Life.

(c) Receipt of the consideration of €1.3 billion will reduce the Government debt by approximately 1% in 2013, which Mr. Cantwell asserted is highly significant, given the high debt burden the State has at present. The consideration will also reduce the Exchequer deficit for 2013 by €1.3 billion.

(d) The consideration to be paid and the dividend already paid have been factored into Government forecasts for 2013 and delay in receipt of the consideration would require downward adjustments in Government budgets to meet targets in the Programme of Support with the Troika.

Having outlined the foregoing factors, Mr. Cantwell averred that the loss of the sale to Canada Life would “self evidently be significant”.

35. In his affidavit Mr. Cantwell has also suggested that delay in completion would have adverse consequences for third parties, referring specifically to the following facts:

(a) that Canada Life has expended significant financial, legal and operational resources on the acquisition and integration of the businesses of the Company and its subsidiaries (i.e. the Irish Life insurance business) and Canada Life’s business in Ireland in advance of completion;

(b) that the employees of the Company and its subsidiaries would be materially affected by delay in the Irish Life insurance business exiting from State ownership and delay would add to the uncertainty for employees of both Irish Life and Canada Life, who number approximately three thousand, who could be “impacted by the new organisational structure”;

(c) that, as the customers of both Irish Life and Canada Life are expecting completion of the acquisition shortly, delay could negatively impact on the business of both operations; and

(d) the positive impact which is anticipated to flow from the completion of the acquisition of the Irish Life business by Canada Life, as evidenced, for example, by the attitude of a rating agency, Fitch, in a statement of 20th February, 2013, will be stalled.

36. The position adopted by Mr. Skoczylas in his replying affidavit and in his submissions to the Court is that the matters averred to by Mr. Cantwell outlined in the previous paragraphs are all irrelevant, given that the Minister is alleged to have committed the most egregious breaches of EU law. Mr. Skoczylas averred that there was no basis in fact for Mr. Cantwell’s averment that failure to complete the sale on the contractual closing date would put the transaction at risk, suggesting that it would only be at risk if the Minister and Canada Life were not prepared to wait the outcome of the various proceedings instituted by the plaintiffs. That suggestion lacks any factual foundation. While Mr. Cantwell has not exhibited the Contract between the Minister and Canada Life, the Court must accept as factually correct his averments as to the significance of the long stop date and the contractual entitlement of either party to terminate. Mr. Skoczylas has adduced no evidence to contradict any of the matters averred to by Mr. Cantwell. While erroneously suggesting that the Minister does not represent Irish Life, he is correct in stating that the Minister does not represent Canada Life. In any event, I consider that the matters averred to by Mr. Cantwell as to the effect of delay in closing the sale or the loss of the sale on third parties are of limited significance in the determination of where the balance of convenience lies.

37. Departing from the order of consideration of the criteria outlined in the B & S. case as summarised earlier, because of the unusual circumstances in this case, I propose considering where the balance of convenience lies next.

Balance of convenience
38. In considering whether the balance of convenience favours the grant or refusal of the injunction sought by the plaintiffs to restrain the Minister from completing the sale to Canada Life, a number of possible ultimate outcomes have to be compared.

39. The first is that the injunction is granted and it ultimately transpires that the plaintiffs have not established any wrongdoing against the Minister. The consequences of that would be that the Minister would have not only sustained the financial losses which Mr. Cantwell has outlined would result from a delay in closing the sale, but also the losses and damage ensuing from the loss of the sale, if the risk of such loss identified by Mr. Cantwell materialised, and the potential damage to the asset the subject of the sale, the Company and its subsidiaries, pointed to by Mr. Cantwell. As will be clear when I address the issue of an undertaking as to damages from the plaintiffs, the Minister would, in reality, be unable to recoup those losses from the plaintiffs. Accordingly, in that situation, the Minister would suffer irremediable damage, in the sense that the State would be without any adequate remedy against the plaintiffs on foot of which the losses could be reversed. Mr. Skoczylas recognised this outcome because he alluded to the reality that the plaintiffs will become bankrupt if they lose the case.

40. The second is that the injunction is refused but the plaintiffs do ultimately establish wrongdoing on the part of the Minister in the substantive proceedings. Because of the multiplicity of proceedings and the multiplicity of causes of action involving the Minister and the State which the plaintiffs are pursuing, it is impracticable on this application to anticipate the various outcomes which may arise in those circumstances. Therefore, I propose looking at what would be considered expressed colloquially as the worst case scenario from the Minister’s perspective. It could arise from any, or a combination of, the following outcomes:

(a) the setting aside by the Court of the July 2011 Direction Order resulting in the purported acquisition by the Minister of 99.2% of the shareholding in Holdings having been ineffective, using a non-technical term;

(b) the setting aside by the Supreme Court on appeal of the March 2012 Direction Order, if leave is granted for an appeal, so that the purchase by the Minister of the Company would have been ineffective, again using a non-technical term;

(c) a finding by the Court that the provisions of the Act of 2010 invoked by the Minister for the purposes of acquiring 99.2% of the share capital in Holdings and the purchase of the Company are invalid having regard to the provisions of the Constitution, which would have resulted in the actions of the Minister being null and void, or

(d) the Court finding in the s. 205 Proceedings that the powers of the directors of Holdings had been exercised in a manner oppressive to the plaintiffs, or in disregard of their interests, and determining, pursuant to subs. (3) of s. 205 that, with a view to bringing to an end the matters complained of, it was possible and necessary to make an order which in some way reversed the Minister’s majority control of Holdings, and, as a consequence, his majority control of the Bank.

It is important to emphasise that each of the foregoing outcomes is wholly hypothetical. However, what would probably flow from any such outcome, or a combination of them, is that the Minister would be found not to have title to, or power to sell, the Company to Canada Life. Whether or how that transaction could be undone is a matter of speculation. However, the important point is that, if the plaintiffs could establish that, as a result of the wrongdoing on the part of the Minister which the Court had found, they have suffered loss, they would be entitled to the appropriate form of redress. In the context of this application, I consider it is appropriate to assume that the State would be in a position to provide the appropriate form of redress directed by the Court. Therefore, I consider that the plaintiffs would not be irreparably prejudiced by the Court refusing to grant the injunction sought.

41. The only conclusion which is open from a comparison of the two possible outcomes, which I have outlined, is that the risk of injustice is minimised by refusing to grant the injunction. Therefore, the balance of convenience favours adopting that course.

Damages as a remedy for the plaintiffs?
42. The plaintiffs’ interest in the sale of the Company to Canada Life derives from the fact that they are shareholders in Holdings. Mr. Cantwell averred that prior to the July 2011 Direction Order, the extent of the plaintiffs’ shareholding in Holdings was approximately 0.5%. Leaving aside the rule in Foss v. Harbottle and the exceptions to it, which Mr. Skoczylas brought into the discussion on this application, consideration of which is for another day, in broad terms the plaintiffs, as such shareholders, have an interest in the assets of Holdings and, indirectly, in the assets of the subsidiaries of Holdings and the subsidiaries of the subsidiaries. If, and to the extent that, the plaintiffs establish in any of the proceedings before the Court that there has been wrongful interference by the Minister with their interest in Holdings and its assets, as a result of which the Minister did not have title to, or power to sell, the Company. I consider that the plaintiffs would be adequately compensated in damages for any consequent consequential loss suffered by them. The reality is that the plaintiffs’ investment in Holdings was from the outset going to generate a financial gain or a financial loss. To the extent that they establish that they have been deprived of a financial gain, the plaintiffs’ remedy is an award of damages.

43. The Court is, of course, fully cognisant of the fact that the Act of 2010 does not provide for a remedy in damages and that it is well settled that one remedy which it is not open to the Court to grant under s. 205 is an award of damages to the petitioner. However, as I have indicated in dealing with the balance of convenience, if the plaintiffs succeed against the Minister they will have to be afforded redress and the probability is that redress in the form of damages will be the appropriate remedy, for which they should be able to formulate an appropriate claim. Finally, there is no question of the plaintiffs’ claims or the reliefs they have sought becoming moot on the completion of the Contract by the Minister and Canada Life.

Undertaking as to damages by plaintiffs?
44. Mr. Skoczylas properly recognised that the plaintiffs could not give a realistic undertaking as to damages, suggesting that there are very few people in the world who would be able to give a realistic undertaking as to damages that could potentially go into tens of millions of Euro. In applying the B. & S. test, the only conclusion open is that the Minister would not be adequately compensated in damages by any undertaking as to damages proffered by the plaintiffs.

45. It is important to emphasise that unlike cases solely involving public law issues, this is not a case in which the adequacy of damages and the ability to discharge an award of damages on either side is irrelevant. Although the various proceedings which the plaintiffs have initiated against the Minister will undoubtedly involve a myriad of national and EU public law issues, in all of the proceedings the basis on which the plaintiffs claim to have locus standi to bring proceedings against the Minister is that they are members of Holdings and, as such, their private rights are being infringed, whether by reason of breach by the Minister by the Act of 2010, or their constitutional rights, or EU law. In seeking to injunct the completion of the sale to Canada Life, in essence the plaintiffs are endeavouring to protect their private law interests derived from their shareholding in Holdings, whereas the Minister, in resisting the injunction, has advanced the protection of the asset in sale, the Company. Irrespective of the fact that the Minister acquired that asset through a statutory process which the plaintiffs impugn, it is not open to the Court to ignore the fact that the plaintiffs are not in a position to give an undertaking as to damages which would adequately compensate the Minister in the event of it transpiring that the Court should have refused the injunction.

Delay
46. In submitting that the plaintiffs are precluded from pursuing the equitable remedy of injunction at the time these proceedings were initiated because of laches, counsel for the Minister referred the Court to Delany on Equity and the Law of Trusts in Ireland (5th Ed.) at p. 524 and, in particular, that the defence of laches is said by Spry to arise if two conditions are satisfied, quoting the following passage from the Spry on The Principles of Equitable Remedies (8th Ed., 2010) at p. 43:

“[First], there must be unreasonable delay on the part of the plaintiff in the commencement or prosecution of the proceedings, and secondly, in view of the nature and consequences of that delay it must be unjust in all of the circumstances to grant the specific relief that is in question, whether absolutely or on appropriate terms or conditions.”

47. In this case it is clear that Mr. Skoczylas was aware as early at 5th January, 2013 that a sale of the Company to Canada Life was being negotiated. When the fact that the Minister had entered into a contract with Canada Life was announced on 19th February, 2013, the Court gave the plaintiffs leave to issue a motion seeking an interlocutory injunction returnable for the following week. However, despite the fact that the Court was prepared to accommodate the plaintiffs with an early hearing, which counsel for the Minister emphasised was crucial, the motion was not issued. In the circumstances, I consider that there was unreasonable delay on the part of the plaintiffs in commencing this application. I am also satisfied that, given that the anticipated date for completion of the sale was imminent, in fact, just approximately a month hence, when the application was commenced, it would be unjust to grant the plaintiffs at that late stage an injunction restraining completion of the sale. However, the primary basis on which I am refusing to grant an interlocutory injunction is that the balance of justice militates against making such an order for the reasons set out earlier.

Reference under Article 267
48. The only two of the possible forty questions for reference under Article 267 outlined in the schedule to the notice of motion relate to the grant of interlocutory relief. Those possible questions have been quoted earlier. I have outlined earlier my understanding of the conditions under which this Court is entitled to grant interim or interlocutory relief in the context of the circumstances of this case, having regard to the alleged breaches of EU law on the part of the Minister. I have determined the entitlement of the plaintiffs to the interlocutory relief sought by them in accordance with those conditions and refused to make the order sought. Accordingly, I consider that it is not necessary to refer either of those two questions to the CJEU for a preliminary ruling pursuant to Article 267 of the TFEU. As regards the remainder of the questions set out in the schedule to the notice of motion, most of which were before Gilligan J. in the application for an interlocutory injunction in the s. 205 Proceedings, I share the view of Gilligan J. quoted earlier that a decision on the application under Article 267 as to the making of a preliminary reference would be premature at this stage. Therefore, I am leaving the question of a reference for determination at the substantive trial of the action or, as the case may be, of the Plenary Proceedings or the s. 205 Proceedings.

Order
49. There will be an order dismissing the plaintiffs’ application.

APPENDIX A

(RELIEFS SOUGHT IN PLENARY PROCEEDINGS INVOKED BY THE PLAINTIFFS)

Regarding the July 2011 Direction Order

“(10) A Declaration that that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 are inconsistent with the provisions of the Constitution of Ireland, and are of no effect and void.

(11) A Declaration pursuant to the provisions of section 5 of the European Convention on Human Rights Act 2003 that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 are incompatible with the State’s obligations under the European Convention on Human Rights and Fundamental Freedoms.

(12) A Declaration that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Second Council Directive 77/91/EEC; and that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the Second Council Directive 77/91/EEC.

(13) A Declaration that provisions of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are incompatible with provisions of the Directive 2009/101/EC of the European Parliament and of the Council; and that the provisions of the Direction Order made on 26 July 2011 pursuant to the Act are of no effect and void insofar as the same are contrary to the Directive 2009/101/EC of the European Parliament and of the Council.

(14) A Declaration that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Directive 2001/34/EC of the European Parliament and of the Council; and that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the said Directive.

(15) A Declaration that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Markets in Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council (the “MiFID”); and that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the MiFID.

(16) A Declaration that provisions of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are incompatible with provisions of the Directive 2004/25/EC of the European Parliament and of the Council (the “Takeover Directive”); and that the provisions of Direction Order made on 26 July 2011 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the Takeover Directive.

(17) A Declaration that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of The Treaty on the Functioning of the European Union (the “TFEU”) in respect of the freedom of movement of capital; and that the terms of the Direction Order made on 26 July 2011 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the TFEU.

(18) A Declaration that the State has failed in its obligation to give effect to provisions of European Union law – and specifically to Articles 8(1), 25(1) and 29(1) of the Second Council Directive 77/91/EEC; Article 10 of the Directive 2009/101/EC of the European Parliament and of the Council; Articles 5, 42 and 45 of the Directive 2001/34/EC of the European Parliament and of the Council; Article 42 of the Markets in Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council; Article 3 of the Directive 2004/25/EC of the European Parliament and of the Council; and Article 63 of the Treaty on the Functioning of the European Union – by effecting contrary provisions of the direction order made on 26 July 2011 pursuant to the Credit Institutions (Stabilisation) Act 2010.”

Regarding March 2012 Direction Order

“(19) A Declaration that that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 are inconsistent with the provisions of the Constitution of Ireland, and are of no effect and void.

(20) A Declaration pursuant to the provisions of section 5 of the European Convention on Human Rights Act 2003 that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 are incompatible with the State’s obligations under the European Convention on Human Rights and Fundamental Freedoms.

(21) A Declaration that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Second Council Directive 77/91/EEC; and that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the Second Council Directive 77/91/EEC.

(22) A Declaration that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Directive 2001/34/EC of the European Parliament and of the Council; and that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the said Directive.

(23) A Declaration that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of the Markets in Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council (the “MiFID”); and that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the provisions of the MiFID.

(24) A Declaration that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Credit Institutions (Stabilisation) Act 2010 (the “Act”) are in breach of provisions of The Treaty on the Functioning of the European Union (the “TFEU”) in respect of the freedom of movement of capital; and that the terms of the Direction Order made on 28 March 2012 pursuant to the terms of the Act are of no effect and void insofar as the same are contrary to the TFEU.

(25) A Declaration that the State has failed in its obligation to give effect to provisions of European Union law – and specifically to Articles 25(1) and 42 the Second Council Directive 77/91/EEC; Articles 5 and 42 of the Directive 2001/34/EC of the European Parliament and of the Council; Article 14.4 of the Markets in Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council; and Article 63 of the Treaty on the Functioning of the European Union – by effecting contrary provisions of the direction order made on 28 March 2012 pursuant to the Credit Institutions (Stabilisation) Act 2010.”

APPENDIX B

(RELIEFS SOUGHT IN S. 205 PROCEEDINGS INVOKED BY THE PLAINTIFFS)

3) That, pursuant to Articles 8(1), 25(1) and 29(1) the Second Council Directive 77/91/EEC and pursuant to Article 10 of the Directive 2009/101/EC and pursuant to Article 3 of the Directive 2004/25/EC and pursuant to Articles 5, 42 and 45 of the Directive 2001/34/EC and pursuant to Article 42 of the Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council and pursuant to Article 63 of the Treaty on the Functioning of the European Union, the provisions of the direction order made on 26 July 2011 pursuant to the Credit Institutions (Stabilisation) Act 2010 in the terms of the proposed direction order made by the Twelfth Named Respondent on 25 July 2011 be declared incompatible with the said provisions of European Union law and/or oppressive to the members of ILPGH and/or in disregard of their interests as members;

6) That, pursuant to Articles 25(1) and 42 of the Second Council Directive 77/91/EEC and pursuant to Article 14.4 of the Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council and pursuant to Articles 5 and 42 of the Directive 2001/34/EC and pursuant to Article 63 of the Treaty on the Functioning of the European Union, the provisions of the direction order made on 28 March 2012 pursuant to the Credit Institutions (Stabilisation) Act 2010 in the terms of the proposed direction order made by the Minister for Finance on 27 March 2012 be declared incompatible with the said provisions of European Union law and/or oppressive to the members of ILPGH and/or in disregard of their interests as members;

(8) That, given the relief sought at (6) above pursuant to Articles 25(1) and 42 of the Second Council Directive 77/91/EEC and pursuant to Article 14.4 of the Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council and pursuant to Articles 5 and 42 of the Directive 2001/34/EC and pursuant to Article 63 of the Treaty on the Functioning of the European Union, any re-sale of Irish Life Group Limited by the Minister for Finance be disallowed;

(9) Further or in the alternative to the relief sought at (8) above, given the relief sought at (6) above pursuant to Articles 25(1) and 42 of the Second Council Directive 77/91/EEC and pursuant to Article 14.4 of the Financial Instruments Directive 2004/39/EC of the European Parliament and of the Council and pursuant to Articles 5 and 42 of the Directive 2001/34/EC and pursuant to Article 63 of the Treaty on the Functioning of the European Union, if any re-sale of Irish Life Group Limited by the Minister for Finance has been completed before the ultimate resolution of the within proceedings, that such a re-sale transaction be declared illegal, null and void.

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	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dowling & ors -v- The Minister for Finance [2013] IEHC 299 (02 July 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H299.html Cite as: [2013] IEHC 299

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