Court sets aside Protective Certificate due to material non-disclosure of execution order and possession transfer.

Record No. C:IS:NRMN:2023:000700

THE CIRCUIT COURT AN CHÚIRT CHUARDA

Northern Circuit County of Monaghan

IN THE MATTER OF PART 3, CHAPTER 4 OF THE PERSONAL INSOLVENCY ACT 2012

—and—

IN THE MATTER OF AN APPLICATION BY START MORTGAGES DAC (THE APPLICANT)

—and—

IN THE MATTER OF JANETTE SIMPSON OF BRYANLITTER, CLONTIBRET, MONAGHAN (THE DEBTOR)

JUDGMENT of His Honour Judge Kenneth Connolly, delivered on 24 July 2023.

1. This is the Court’s judgment on a motion seeking reliefs in relation to a Protective Certificate granted pursuant to the provisions of section 95(2)(a) of under the Personal Insolvency Acts 2012-2021, as amended (“the Act”). Summary of Facts and Procedural History

2. It is necessary to briefly consider the facts and procedural history giving rise to this application.

3. On 23 July 2007, Nua Mortgages Limited advanced the sum of €200,000.00 to the Debtor (and another), secured by way of an indenture of mortgage and charge on the index property (a dwelling house) in favour of Nua Mortgages Limited, which was registered as a burden on Folio 20535F on 2 September 2008. The Applicant herein, Start Mortgages DAC, later succeeded in title to Nua Mortgages Limited and the burden on the folio was registered in their name on 15 January 2015. The Debtor defaulted on the mortgage repayments and repossession proceedings issued. An Order for Possession was granted on 11 February 2022, with a stay of six months. An Execution Order of Possession issued on 20 September 2022. The Monaghan County Sheriff took possession of the property on 24 March 2023, whereupon possession was transferred to the Applicant’s agent.

4. On 8 May 2023, this Court granted a Protective Certificate to the Debtor in respect of (inter alia) the debt owing to, and as against, the Applicant. This was granted on the basis of the Debtor’s Prescribed Financial Statement, which stated that an “Order for possession has been granted to Start Mortgages DAC”. Regrettably, however, the papers did not state that, at that point, an Execution Order of Possession had been granted and the Monaghan County Sheriff had taken possession of the property – although, as discussed later in this judgment, the Debtor avers that she has since recommenced residing in the property.

5. The Applicant issued a motion, listed for 17 July 2023 and heard on 18 July 2023, in which two primary reliefs are sought, namely: an Order setting aside the Protective Certificate, pursuant to this Court’s inherent jurisdiction and, in the alternative, an Order directing that the Protective Certificate shall not apply to the Applicant, pursuant to the Act. The Respondent resists the motion. Helpful submissions were received from Counsel for each party, for which the Court is grateful. Summary of Legal Issues

6. Two legal issues essentially arise for determination in this matter, which may be briefly summarised as follows:

i) Whether the property remained “the property of the debtor” within the meaning of section 91(1)(c) of the Act, after the Execution Order of Possession was granted and the Monaghan County Sheriff and the Applicant’s agent acquired possession (or at least the lawful right to possession), and on the date of the granting by this Court of the Protective Certificate, such that the eligibility requirement under section 91(1)(c) of the Act is met and the Protective Certificate, consequently, remains valid.

ii) Whether this Court enjoys an inherent jurisdiction (or power) to set aside the Order of 8 May 2023, granting the Protective Certificate in favor of the Debtor and as against the Applicant, and if so, whether that discretion ought to be exercised in this case.

7. As will be seen hereunder, these issues are inter-related and the first issue is largely determinative. However, I will address the jurisdictional issue first. Jurisdiction to Set Aside an Order

8. Unlike the High Court, the Circuit Court is not vested with “full original jurisdiction” under Article 34.3.1 of the Constitution. Instead, it is an inferior court of local and limited jurisdiction, established under statute. However, perhaps owing to the elision between the amorphous concepts of an inherent jurisdiction and what has variously been described as an implied, derived or common law jurisdiction or set of powers, the matter is not so easily settled. There is indeed a distinction. As J. Donnelly notes in Inherent Jurisdiction and Inherent Powers of Irish Courts (2009) 2 JSIJ 122, at 127:

“A power, on the other hand, is “an entitlement in law to use a procedural tool … to hear and decide a cause of action in the Court within jurisdiction”. An inherent power is exercisable by all courts. It is a power which is incidental and ancillary to the primary jurisdiction; the power is “parasitic” on the primary jurisdiction. Inherent powers are part of the common law of courts or, alternatively, arise by implication from the separation of powers doctrine. A court invokes its inherent power in order to fulfil its constitutionally-ordained function as a court of law and to accomplish the administration of justice in a regular, orderly and effective manner.”

9. This Court is entrusted with the task of administering justice according to law. It is, I would say, trite to state that this Court enjoys a range of implied or secondary powers for the purposes of regulating its own affairs and procedures in pursuit of this duty, without which it would be unduly impeded. Indeed, it does so daily: practice directions are issued, persons are admitted and excluded from courtrooms, persons without right of audience are permitted to address the Court, or to assist litigants before it, proceedings are amended, evidence is included and excluded. In the context of the in camera rule, it was stated in J.D. v. S.D. [2014] IEHC 648 at paragraph 16 that –

“[w]hile the second applicant advanced in its submissions that as an alternative there was an inherent jurisdiction in the court, I find that such inherent jurisdiction (if it may be termed as such) is coterminous with the common law power described above. I take slight exception to the description “inherent jurisdiction” as I do not think it is appropriate, notwithstanding that it is frequently conflated with “implied jurisdiction”.

My understanding of inherent jurisdiction is that it is a jurisdiction associated with the High Court and the Supreme Court on appeal arising from the unlimited jurisdiction of these courts in the context of the Constitution which enables them to provide a framework for reliefs delivering constitutional rights which are not yet delivered by statutory provision. An implied jurisdiction or power is, on the other hand, a power vested in the court by reason of its power and duty to regulate its own affairs having regard to the requirements of justice. I am of the view that the power of the courts to lift the in camera rule referred to as a common law power is, in fact, an implied power arising in the normal administration of court business in the interest of justice, and, most importantly, in the context of family law proceedings, it is a power which may be exercised by a statutory court such as the Circuit Court or the District Court without any constitutional remit.”

10. In terms of whether this Court may set aside its own order, I cannot but conclude that this is undoubtedly within the limited range of powers, exercisable by all Courts, under the umbrella of regulating its own affairs: to hold otherwise would be to give license to all sorts of mischief and to derelict the duties and obligations incumbent upon the Courts.

Not only are applications before a Court to set aside its own orders entertained and approved, but jurisprudence has developed in this respect.

11. For reasons stated elsewhere in this judgment, I am also of the opinion that an application for the granting and issuance of a Protective Certificate is an ex parte application, in which context the inherent power or jurisdiction of any Court to set aside its own order made on foot of an ex parte hearing is also evident from the decision of McCracken J. in Voluntary Purchasing Groups v. Insurco International Ltd & Agrichem Ltd [1995] 2 ILRM 145, at 146:

“In my view, however, quite apart from the provisions of any rules or statute, there is an inherent jurisdiction in the Courts in the absence of an express statutory provision to the contrary, to set aside an Order made ex parte on the application of any party affected by that Order. An ex parte Order is made by a judge who has only heard one party to the proceedings. He may not have had the full facts before him or he may even have been misled, although I should make it clear that is not suggested in the present case. However, in the interests of justice it is essential that an ex parte Order may be reviewed and an opportunity given to the parties affected by it to present their side of the case or to correct errors in the original evidence or submissions before the Court.

It would be quite unjust that an Order could be made against a party in its absence and without notice to it which could not be reviewed on the application of the party affected.”

12. Counsel for the Debtor has correctly pointed out that this Court does not sit as a specialist Judge, unlike its former colleagues. It sits as the Circuit Court, with the full range of jurisdiction at common law and in equity. Insofar as the authorities brought to the Court’s attention refer to the limited nature of the former role of specialist Judge of the Circuit Court, this is not germane to these proceedings.

13. Insofar as it is (or could be argued) by the Debtor that the statutory regime vis-à-vis the Act extinguishes or overtakes such jurisdiction, I remain unpersuaded. The Act provides two other mechanisms by which a creditor may seek relief against a Protective Certificate. Section 96(3) of the Act, in essence, enables recovery of debts in spite of a Protective Certificate with the Court’s blessing, stating as follows:

“Without prejudice to subsections (1) and (2), whilst a protective certificate remains in force, no other proceedings and no execution or other legal process in respect of a specified debt may be commenced or continued by a creditor to whom subsection (1)

applies against the debtor or his or her property, except with the leave of the court and subject to any order the court may make to stay such proceedings, enforcement or execution for such period as the court deems appropriate pending the outcome of attempts to reach a Personal Insolvency Arrangement, but this subsection shall not operate to prohibit the commencement or continuation of any criminal proceedings against the debtor.”

14. Section 97 of the Act also allows for a Creditor to seek an Order directing that the Protective Certificate shall not apply to that creditor, subsection (3) of which reads as follows:

In determining an application under this section the court shall not make an order directing that the protective certificate shall not apply to that creditor unless it is satisfied that—

(a) not making such an order would cause irreparable loss to the creditor which would not otherwise occur, and

(b) no other creditor to whom notice of the protective certificate has been given would be unfairly prejudiced.

15. Neither provision provides for the setting aside of a Protective Certificate per se. In that respect, the statutory provision does not oust an inherent power to do so. These procedures can also allow a Protective Certificate to stand in respect of debts other than those owed to the creditor applicant, similarly, suggesting that they don’t overtake an extra-statutory power to set aside a Protective Certificate. There is jurisprudence for the setting aside of an order where there has been material non-disclosure, fraud or error or omission. Such grounds would, to my mind, be so material that a Court should be hard pressed to allow a Protective Certificate to continue even if an order under section 97 or 96(3) is made, again suggesting that the Act does not extinguish such a power.

16. Section 118 of the Act imposes a set of duties on debtors in processes under Chapter 4, but the Act does not prescribe a direct way by which breaches are to be dealt with. There must be a jurisdiction or power of the Court to address such breaches. Although, admittedly, there are options other than the setting aside of a Protective Certificate.

17. I am satisfied that this Court’s jurisdiction to set aside its own order granting a Protective Certificate remains unabolished by the Act. The Court in Re Nugent (A Debtor) [2016] IEHC 127 reached a similar conclusion, at paragraph 25: “Hogan J. in Re Belohn Limited and Merrow Limited, having determined that the application before him was permissible, did not expressly deal with the question of whether the statutory provisions allowing for the appointment of an interim examiner would be determinative of his approach to the application to set aside. I consider however that there is implicit in his finding in that case, where he did set aside the appointment of an interim examiner on the grounds of non disclosure, that the order to set aside was “essentially restitutionary in nature” as it involved the setting aside of an order which was tainted by non disclosure. His judgment it seems to me is a strong authority for the proposition that the application to set aside is determined by the court on broad principles of fairness and the solemnity of the court and its process. The

decision of Hogan J. guides my approach to the question in the present case, and I consider that my jurisdiction is not constrained by the statutory provisions contained in s. 97, and must be seen in the broader context of the requirement of candour and disclosure in ex parte applications, and because the operation of a constitutionally complete ex parte procedure must involve a degree of respect for the court by those who make such application.”

18. Whilst Counsel for the Debtor intimated that an application for a Protective Certificate is not made ex parte in the technical sense, the matter was not pressed and I believe rightly:

potentially affected creditors are not on notice and do not enjoy an opportunity to make submissions prior to the granting (if any) of a Protective Certificate. Only the Insolvency Service of Ireland is (perhaps nominally) put on notice. The matter was addressed, albeit briefly, in Tanager Dac v. Ryan [2019] IEHC 659, at paragraph 13:

“A debtor is not normally required to put his or her creditors on notice of the making of an application for a protective certificate. To this extent, the application can be characterized as an ex parte application. This is so notwithstanding that the application is made with the involvement of a third party, namely the Insolvency Service.”

19. Similar comments can be found in respect of applications to extend a Protective Certificate already granted which, although a different procedure, similarly do not require that creditors be put on notice. In Patrick Halpin (A Debtor) [2019] IEHC 87 at para. 79, the Court noted as follows:

“For completeness, it should be noted that an application for an extension of a protective certificate is required to be on notice to the ISI so it is not, technically, an ex parte application. That does not seem to me to make any difference. In Kenmare’s case, it was not given advance notice of the application, with the result that it was, in substance, an ex parte application in so far as Kenmare is concerned. It should also be noted that, in any event, ISI had given consent to the application being moved on an ex parte basis.”

20. Further, in Nugent at paragraph 29:

“the PIP argues that the application before me for the extension of the period of the protective certificate was not truly an application ex parte as it was made on notice to the Insolvency Service of Ireland. The fact that the application was not on notice to the creditors does not, it is argued, make it an ex parte application. I do not consider this submission to be well founded, as the application for the extension may properly be described as ex parte in that the persons affected or likely to be affected thereby were not on notice. An ex parte application is not merely one to which no person or body is on notice, but one of which the person whose interests are impacted is not on notice.

I accept that the legislation and the Rules providing for the making of an application were formulated in a way that permitted, or perhaps even required, the application to be made ex parte to the court, but the jurisprudence which I have referred to leads me to the inevitable conclusion that any person whose interests are affected by the order may have a right to seek to set aside such an order, even if that person might not be required by the statute or the rules to be on notice. This result flows from the approach identified by Hogan J. in Re Belohn Limited and Merrow Limited, where he held that the making of an order ex parte without the availability of a remedy to set aside could not be constitutionally sanctioned.”

21. Insofar as it could be argued that the involvement of the Insolvency Service of Ireland, in checking the eligibility requirements and referring an application for a Protective Certificate to the Court renders such an application as something other than ex parte, this similarly does not withstand scrutiny. The Insolvency Service of Ireland checks the eligibility requirements against information which the PIP and Debtor have sent to it, information which it cannot challenge and will not be adversely affected by.

22. Finally, I am of the opinion that a Protective Certificate cannot be considered a final order, given that it is of finite duration unless extended and exists to provide, what the Court in Nugent succinctly described in paragraph 5, as “breathing space in which… [the debtor] seek[s] to come to an arrangement with creditors, and avoid the less benevolent consequences of bankruptcy.” Accordingly, the public and judicial interests of finality of court orders and res judicata, which would temper against a Court setting aside its own orders, are not invoked.

23. I am satisfied that the application before this Court on 8 May 2023 for the issue of a Protective Certificate was, in all material respects, an ex parte application and that the concomitant duty of candour applies, in addition to the statutory requirement as outlined at section 118 of the Act: the Applicant herein was not on notice, had no opportunity to examine or challenge the Debtor’s position prior to the granting or otherwise of a Protective Certificate, could not present its position to the Court and is adversely affected by the granting of a Protective Certificate.

24. That there is a heightened duty of candour in ex parte applications is axiomatic; as to the standard of candour in an ex parte application, the basic test is that of Bambrick v. Cobley [2005] IEHC 43,

“...the test by reference to which materiality should be judged is one of whether objectively speaking the facts could reasonably be regarded as material with materiality to be construed in a reasonable and not excessive manner.”

25. This was helpfully outlined in greater detail, and in more relevant circumstances, by the Court in Nugent:

“It is not necessary for the purposes of this application that I should take a view as to whether the PIP, or the debtor, deliberately sought to present the matter to me in a way that points to a lack of bona fides. As a matter of law the test before me is whether there was a significant and material failure to disclose matters which should have been disclosed and the test is an objective one as to what could have influenced me in the exercise of my jurisdiction in making the order ex parte. I am satisfied that the test is met.

26. So too, in these proceedings, it is unnecessary to consider the state of mind or conduct of the Debtor and the Personal Insolvency Practitioner. Instead, what falls to be considered is as follows: If this Court were aware that the Execution Order of Possession had been taken up, and that the right of possession (if not actual possession) had reverted to the Applicant, would it have been influenced in whether or not to grant the impugned Protective Certificate? At this remove, however, it is appropriate to make two observations. Firstly, it is regrettable to the Court, that at the stage of the granting of the Protective Certificate, the full nature of the matter was not disclosed. Having read the replying affidavit of the Debtor and the reasons proffered therein, I shall leave it there and make no further comment. Secondly, had this Court have been aware of the legal issues which clearly arise in this matter, the Court would have convened a hearing and directed that the Applicant herein be put on notice. I trust this has already been made clear to the parties. Meaning of “Property of the Debtor”

27. Section 91 of the Act prescribes the eligibility requirements for making a proposal for a Personal Insolvency Arrangement, subsection (1)(b) of which reads as follows:

“that at least one of the creditors of the debtor is a secured creditor holding security over an interest in property of the debtor situate in the State (whether the interest in the property relates to real property or personal property)”

28. The Protective Certificate, the subject of these proceedings, applies in respect of only two specified debts: the debt to the Applicant, secured by way of a mortgage on the property, and a minor unsecured debt to another creditor. The Applicant contends that, following the Execution Order of possession and a legal right of possession reverting to the Applicant, the property ceased to become a “property of the debtor”. As there are no other secured debts, the Debtor thereupon ceased to be eligible to apply for a Protective Certificate and accordingly the Order of 8 May 2023 granting the Protective Certificate was improvidently granted. This is contested by the Debtor, who maintains that the property ought to be considered as “property of the debtor” within the meaning of the Act, even post the Execution Order of Possession, such that the eligibility requirements were met and the Protective Certificate is valid. It is necessary, therefore, to consider the meaning of “property of the debtor”.

29. “Property” is not defined within the Act. “Debtor” is defined, in relation to a debt as meaning ”a natural person who—… owes a debt to a creditor, or… otherwise has a liability to a creditor”. The phrase “property of the debtor” appears only four times in the Act and – as far as this Court is aware – has not attracted judicial attention or scrutiny as to its meaning, neither in the Act or the Bankruptcy Act 1988 (as amended) which appears to be the only other enactment in which the phrases arises. The Debtor argues, as far as I understand, that the relevant definitions to be considered are instead “secured debt”, “secured creditor” and “security”.

30. “Secured debt” is defined as meaning “a debt the payment for which is secured by security in or over any asset or property of any kind”. “Secured creditor” is defined as meaning, in relation to a debt, a creditor of the debtor who holds, in respect of his or her debt, security (other than a guarantee or pledge referred to in section 35(8) of the Credit Union Act 1997) in or over property of the debtor”. “Security” is further defined, in relation to a debt, as meaning “any means of securing payment of the debt and includes—

(a) a mortgage, judgment mortgage, charge, lien, pledge, hypothecation or other security interest or encumbrance or collateral in or over any property (whether real or personal and including choses-in-action),

(b) an assignment by way of security, and

(c) I an undertaking or agreement by any person (including a solicitor) to give or create a security interest in property;”

31. On this basis, the Debtor contends that she meets the eligibility requirements under section 91(1)(c) of the Act. To illustrate this point, a copy of the folio, relating to the index property, updated as of the date prior to the hearing of this matter, shows that the Debtor remains the paper title owner of the property. And as the Debtor has also pointed out, section 31 of the Registration of Title Act 1964 (as amended) provides that the Register shall be conclusive as to its contents.

32. Section 95(2)(a) of the Act is mandatory insofar as the Court must grant a Protective Certificate where the eligibility requirements are met:

“…if satisfied that the eligibility criteria specified in section 91 have been satisfied and the other relevant requirements relating to an application for the issue of a protective certificate have been met, shall issue a protective certificate”

33. In nuce, this is the Debtor’s argument: on the date the Protective Certificate was granted, the Debtor – as according to the folio – remains the title owner of the property, this is sufficient such that the property remains “the property of the debtor” within the meaning of section 91(1)(c) of the Act, the eligibility requirements were consequently met and that the Court has no jurisdiction to set aside the Protective Certificate, as the provisions of section 95(2)(a) are mandatory in such circumstances.

34. The Applicant contends that, once it became a mortgagee in possession, it became the lawful title holder of the property, or at least the person entitled to be registered as owner.

In reliance of this, the Applicant brought to the Court’s attention two authorities, or rather two passages therein. In KBC Bank Ireland PLC v. Michael Anthony McGann [2019] IEHC 667, Allen J., in the context of an application for an interlocutory injunction restraining the former title holder from re-entering a repossessed property, stated as follows:

“The property was not on the 17th December, 2018 Mr. McGann’s dwelling. It had been until a week before, but it ceased to be when the order for possession was executed.”

35. This view was endorsed in Start Mortgages DAC v. Rogers & Anor [2021] IEHC 691, a case on similar facts to McGann, at paragraph [37]:

“Allen J. noted firstly (at para. 25) of the judgment that “the cause of action on which these proceedings is founded is trespass which commenced on 17th December, 2018 and which has been continuing since”. At para. 38, he noted that, on that date, the property was no longer the first defendant’s dwelling and commented “it had been until a week before, but it ceased to be when the order for possession was executed”.

Ultimately, he concluded that the case was simple. Once the County Registrar had entered the property pursuant to the order of possession and caused the bank to have possession of the land and premises, anything the defendants did thereafter they did as trespassers. In other words, as the judgment had been executed, the cause of action in the proceedings before him was not one brought on the judgment but was instead based on the fact that the bank had legal title to and possession of the premises.”

36. Although brief and potentially obiter, these comments are persuasive. Findings

37. On the basis of the foregoing, this Court cannot satisfy itself to the requisite standard that the Debtor, at the date of application for the Protective Certificate, satisfied the statutory requirements of section 91(1)(c) in that I am of the opinion that the index property could not, on that date, in consequence of the execution by the Applicant and/or its agent of the Order of Possession, be described or regarded in simple English or pursuant to statute or otherwise as the property of the debtor. It seems to this Court perverse that one could properly so describe or regard the index property as property of the debtor, she having been lawfully removed therefrom pursuant to Orders of this Court, having lost the right to lawful occupation thereof and might, at best, be regarded as a trespasser in respect of the said property, and most certainly, a willful actor contrary to Court Order. Returning to the Issue of Material Non-Disclosure.

38. Having found that the eligibility requirements were not met prior to the granting of the Protective Certificate, I return to whether the failure on part of the Debtor to indicate within her application that she did not meet the eligibility requirements constitutes a material non-disclosure, such that I should set it aside.

39. The Court’s attention was again drawn to Nugent and Tananger, both of which discuss the meaning of material non-disclosure and how the discretion to set aside an order an order ought to be exercised in such circumstances. Unfortunately, I do not believe that either are of direct application to these proceedings. In neither case was there a dispute as to the eligibility requirements nor a material non-disclosure of anything of such importance. I am alive to the concern expressed by Mr. Justice Simons in Tananger at paragraph [100].

“There will, of course, be cases where the setting aside of a protective certificate will be justified because of a material non-disclosure. It would undermine the objective of expedition which underlies the legislation, however, if creditors were, as a matter of routine, to make applications to set aside orders based on inaccuracies or omissions which are immaterial. A proliferation of such applications would take up scarce court time unnecessarily, and ultimately delay the final determination of the insolvency process. The Personal Insolvency Act provides ample safeguards for creditors at the stage of an application to confirm or approve a personal insolvency arrangement. The existence of these protections will, in most cases, make a separate application to set aside a protective certificate unnecessary”

40. However, this does not deal with mere inaccuracies or omissions which are fundamental.

It deals with matters going to the heart of the jurisdiction to grant a Protective Certificate.

Section 95(2)(a) of the Act is unambiguous in that a Protective Certificate cannot be granted where the Court is not satisfied that “the eligibility criteria in section 91 have been satisfied”. Under the test laid out in Nugent and endorsed in Tananger, I find that I would not only have been persuaded by the disclosure of the relevant information, but I would have been bound to refuse an Order granting a Protective Certificate. Final Observations

41. It has been brought to the Court’s attention, and aired in the hearing of the matter, that the Debtor has recommenced residing in the property. Resolution of this issue does not arise for determination, and the Court is constrained on any comments it may wish to make, but, for the avoidance of doubt, I am of the opinion that, if this is indeed what has occurred, it would appear to be conduct inconsistent with the previous orders of the Circuit Court. Insofar as other matters were aired by counsel, such as the right of redemption, the Court is of the view that it is unnecessary to embark upon a determination of same, exhaustively, by reason of my substantive findings.

Conclusion

42. I conclude that, as of the date of the granting of the Protective Certificate, the Debtor no longer met the eligibility criteria, in particular the criterion as specified in section 91(1)(c)

of the Act, and that this was a material non-disclosure to such an extent that it is appropriate that I exercise my discretion to set aside the Order of 8 May granting the Protective Certificate, and I so do vacate the said order in its entirety. For the avoidance of doubt, the impugned Protective Certificate is, to my mind, void ab initio, such that it is not, in the Court’s opinion, necessary that an application under section 91(3) be brought, should that be the Debtor’s intention. Whether any such application would have any merit is irrelevant for the within purposes.

43. There is no need to adjudicate whether the test under section 97 has been met. Order

44. Accordingly, I will make an order in terms of the first relief sought in the Notice of Motion, setting aside the Order of 8 May 2023, granting the Protective Certificate, in its entirety and ab initio.

45. I will hear the parties remotely as to the matter of costs on 26 July at 1:15 pm.

Kenneth Connolly

24 July 2023