High Court grants injunction restraining majority shareholders from removing a minority director pending oppression trial.

THE HIGH COURT

COMMERCIAL

[2025] IEHC 664

2022 No. 146 COS

IN THE MATTER OF DAF TRUCK SERVICES (CORK) LIMITED

AND IN THE MATTER OF SECTION 212 OF THE COMPANIES ACT 2014

BETWEEN

PATRICK FERRITER and STEPHEN FERRITER

Applicants

AND

GORZOW LIMITED, KOLPOS HOLDINGS LIMITED, ZAMOSC LIMITED and

DAF TRUCK SERVICES (CORK) LIMITED

Respondents

JUDGMENT of Ms. Justice Eileen Roberts delivered 28 November 2025

Introduction

1. This judgment deals with a net point – whether, in the context of these hard-fought oppression proceedings, the majority shareholders in a company and the company itself should be restrained pending the trial of the action from removing or implementing the removal of a current director who is bringing those oppression proceedings (the “Proceedings”).

2. The parties referred in submissions to various authorities where courts had both granted and refused injunction applications to remove directors. As in all injunction applications however, much turns on the specific facts of the case at issue. While the papers filed in this application were extensive (including, eleven affidavits and exhibits) and the hearing itself lasted two days, I will endeavour to set out the relevant facts as briefly as possible in this judgment. It is important to stress that this judgment does not determine any issue that will fall for determination by the trial judge in the Proceedings.

The parties

3. The fourth named Respondent (“the Company”) operates a successful business. Since 1985, part of the business of the Company has involved the sale in Ireland of DAF Trucks manufactured by DAF Trucks N.V. (“DAF NV”) in the Netherlands. The Company has been made a party to the Proceedings for the purposes of being bound by any order that might be made. No substantive relief has been sought against it in the Proceedings and it has not participated in the Proceedings save in relation to this injunction application.

4. Patrick Ferriter (“PF”) is the first named Applicant and the only party seeking injunctive relief. PF is the father of Stephen Ferriter (“SF”) who is the second named Applicant in the Proceedings. Both are minority shareholders in the Company. PF holds 30% of the shares in the Company and SF holds 4 % of the shares. PF is the single largest shareholder in the Company.

5. The first, second and third named Respondents (the “Majority Shareholders”) are, between them, the majority shareholders in the Company, with each party holding 18% of the shares. The balance of 12% of the shares is held by Thomas Smith who is not a party to the Proceedings or this application.

6. The Majority Shareholders also own a business called DAF Distributers Ireland Limited (“DDI”). DDI is part of the OHM Group, which is an unincorporated association that captures the business interests of its three founders. It is now owned by Gabriel Hogan, the estate of Conal O’Brien and the estate of Declan McCourt. In 2012 DAF NV granted exclusive distribution rights to DDI for the sale of DAF Trucks in Ireland.

7. There are currently six directors of the Company.

8. Three directors have no shareholding, either direct or indirect, in the Company nor in any of the Company’s corporate shareholders. These directors are Patrick Creed (also now the chair of the board – appointed a director on 3 February 2022), John Coleman (now managing director) and John O’Mahony. Both Mr Coleman and Mr O’Mahony were appointed directors on 1 December 2006. PF has questioned the independence of at least some of these directors, which is strongly denied, but that will be a matter for the trial judge.

9. The remaining directors have direct or indirect shareholdings in the Company. They are Gabriel Hogan (who is a director and shareholder of Gorzow Limited), Conal McCourt and PF.

10. PF is the longest serving director of the Company, being one of the original founders. He has been a director of the Company since its incorporation in September 1985. He was also Company Secretary from that date until his removal by board resolution dated 19 July 2023. He has been heavily criticised by the Respondents for his failure to ensure that the relevant statutory records of the Company were maintained during his tenure as Company Secretary.

11. SF was a director, and indeed the managing director of the Company from 2014 when he took over this role from his father PF. In 2022, an internal review of transactions during SF’s tenure as managing director was undertaken. This review identified numerous financial irregularities and the board appointed Grant Thornton to carry out an independent forensic assessment of the issues identified. On foot of their findings an independent senior counsel was engaged to conduct a disciplinary hearing into the actions of SF. Following counsel’s

conclusion that SF’s actions amounted to gross misconduct, SF’s employment with the Company was terminated on 28 August 2023 and he was removed as director of the Company with effect from 24 October 2023.

12. The Company is involved in a number of separate High Court proceedings involving entities owned and/or controlled by PF and/or SF. Specifically, the Company is suing Mallowmount Properties Limited (2023/4837P); Mallow Road Motors (Cork) Limited (2023/6312P) and Cork Truck Services Limited (2024/1591P) where in each case claims are advanced by the Company regarding misappropriation of funds and/or illegitimate diversion of property from the Company. PF describes these various proceedings as “vexatious”.1

13. The Proceedings issued on 29 June 2022 pursuant to s. 212 of the Companies Act 2014 (the “2014 Act”) and before SF was dismissed as managing director of the Company.

Relevant background to the Proceedings

14. It is necessary to briefly review the general background to the Proceedings as this is the context in which the current injunctive relief is sought. I carry out this review not for the purpose of determining any disputed facts or the relative merits of the positions advanced by the parties (which a court cannot do at interlocutory stage) but rather to be in a position to assess the appropriateness of granting or refusing the relief sought.

15. It is common case that the Company does not have a formal agreement with DAF NV for the sale of DAF Trucks in Ireland. PF claims that DAF NV has recognised the Company as a quasi-distributer in Ireland for over 35 years. This proposition is not accepted by the Majority See para 40 affidavit of Patrick Ferriter sworn 12 September 2025.

Shareholders, although correspondence from DAF NV dated 12 January 2021 refers to their observation that the Company “purchased, marketed, offered and sold new DAF vehicles for commercial purposes”. PF says that the Company has spent considerable effort and expense in developing its DAF sales business over the course of the last 35 years and that at the date of the issue of the Proceedings, the Company was selling over 60% of new DAF trucks in Ireland.

16. As previously indicated, in 2012 DAF NV granted exclusive Irish distribution rights to DDI. The Majority Shareholders say that under a 2012 Service Partner Agreement with DAF NV, the Company is allowed to service, but not to sell, DAF trucks. However, under a longstanding “workaround” arrangement between the Company and DDI (done with DAF NV’s knowledge) the Company could source trucks from DDI and invoice customers directly, thereby effectively functioning as a sales dealer.

17. The Majority Shareholders (who between them own DDI) say that in 2019, DAF NV conducted a review of the Irish market and indeed it appears that the Company cooperated with that review. The Majority Shareholders say that following the review DAF NV instructed DDI to discontinue this “workaround” arrangement with the Company, thereby prohibiting the Company from reselling new DAF Trucks to customers.

18. The Applicants complain that the Company was excluded from these “negotiations”. DDI deny that they participated in the decision made by DAF NV and say they would have preferred for the status quo to continue. It appears in fact that the ad hoc workaround arrangement continues notwithstanding the decision of DAF NV.2

19. A dispute arose between the Applicants and the Majority Shareholders regarding legal proceedings which the Applicants caused the Company to issue against DAF NV in January 2022 challenging the DAF NV decision. That dispute concerned the authority of the Para 15 affidavit of Gabriel Hogan sworn 29 July 2025.

Applicants to issue those proceedings on behalf of the Company and an alleged failure to share legal advice in advance of issuing those proceedings. Those proceedings have not been advanced in circumstances where DAF NV has indicated it proposes to challenge jurisdiction if further steps are taken.

20. In early 2022, two additional directors were appointed to the board of the Company namely, Declan McCourt and Patrick Creed. The Majority Shareholders say this was done to better reflect the shareholders’ composition and to better equip the board to act in the Company’s best interests, including in relation to the significant issues arising with DAF NV. The review of the Company’s financial performance commenced shortly thereafter leading to the dismissal of SF, as previously outlined.

21. PF claims that if the redirection of the Company’s business to DDI were to occur, not only would DDI benefit hugely from the increased sales that the Company had built up over decades of trading, but the corresponding drop in turnover of the Company would most likely render it insolvent.

22. In June 2022 the Applicants issued the Proceedings, alleging, inter alia, that:

(a) the Respondents have acted in the interests of DDI, rather than the Company;

(b) the Respondents appointed additional DDI directors to the Company’s Board in order to further DDI’s interests;

(c) the Respondents have failed to progress the proceedings against DAF NV as DDI would financially benefit from their discontinuance;

(d) the Respondents have excluded the Applicants from the running of the Company; and

(e) the investigation into the Company’s financial position and, in particular, the investigation into SF’s financial misconduct and his removal from the Board of the Company is oppressive.

23. All of these allegations are strongly denied by the Majority Shareholders who have counterclaimed for oppression against the Applicants alleging their actions have adversely damaged the value of the Company and the Majority Shareholders’ interests. They contend that PF knew or must have known of SF’s wrongdoing but took no steps to protect the Company from this wrongdoing. They also allege that PF or companies related to him benefitted from aspects of this wrongdoing. All this is disputed by PF who says that he has not been party to any wrongdoing or fraud in the Company and that there have been no findings of wrongdoing against him. These issues will all be matters for the trial judge.

24. I turn now to consider what led to the present injunction application.

Relevant background to this application for interlocutory relief.

25. There are different rationales put forward by the parties to explain the background or trigger to the present application but there is agreement on many of the factual circumstances leading to it.

26. The board unanimously resolved to appoint KPMG as auditors of the Company at a board meeting on 25 January 2024. Because of the financial irregularities which had been identified in the Company the audit appointment was seen as a high risk one by KPMG requiring sign off by their own internal risk committee. An engagement letter issued from KPMG to the Company on 7 October 2024.

27. The Company’s most recent filed financial statements were for 2020. Mr Creed avers that it was at the insistence of KPMG that the scope of audit effectively resulted in the accounts for the years 2019 and 2020 being reaudited, in addition to 2021 to 2023 being audited for the first time.3 Thus the Company was required to, and did in fact, commence the process of restating its accounts for those earlier years. The restatement involved the engagement of Para 28.4 affidavit of Patrick Creed sworn 28 July 2025.

KPMG, KPMG Law and a tax advisor, Mr James Kelliher, who assisted in relation to a voluntary disclosure to be made by the Company to the Revenue.

28. PF avers that in his view“…the sole purpose of restating the accounts is to reduce the value of the Applicants’ shareholding in the Company”.4

29. Mr Creed rejects this contention and avers that the restatement of the accounts “…was necessary in circumstances where numerous and material financial irregularities and inconsistencies had been identified in the books of account of the Company”.5

30. The minutes of the 25 January 2024 board meeting recite that Mr Creed advised the directors that until the restatement exercise was completed there was little benefit in providing management accounts to the board as the data “is unreliable and could be misleading”. The minutes continue to say that “[o]nce the accounts had been restated, it may then be possible to share financial information related to the Company”.6

31. There is a divergence of evidence on the extent of Company financial and other information actually received by PF since September 2023. PF claims he has been denied access to financial information of the Company since the dismissal of SF, “...despite that such dismissal was in no way linked to any actions or findings against me personally”.7

32. Mr Creed avers that PF has been provided with financial information and general updates on the Company’s performance at each board meeting held since January 2024.

33. Whatever the reality of when and what financial information has been provided to him since September 2023, PF instructed his solicitors to write to the Company’s solicitors on 23 May 2025 asking that he be provided with financial information on the Company (in particular, management accounts) as well as information regarding certain identified capital purchases and commitments entered into by the Company with third parties. PF contends that Para 15 affidavit of Patrick Ferriter sworn 18 June 2025. Para 28 affidavit of Patrick Creed sworn 28 July 2025. Para 34 and Tab 10 of booklet of exhibits to affidavit of Patrick Creed sworn 28 July 2025. Para 6 affidavit of Patrick Ferriter sworn 12 September 2025.

it was this request that prompted the Majority Shareholders to commence the process of removing him as a director. This is denied by the Respondents.

34. The solicitors for the Company responded to the request for financial information by confirming that PF had been furnished with the same information as other non-executive board members during the period in question. The response noted that the Company would issue restated audited financial statements in the coming months and until such time as that audit process was complete it was not appropriate for the Company to share the unaudited financial position of the Company. In the meantime their position was that “appropriate information in respect of the financial performance of the Company is being furnished to the Board”.8

35. The Respondents say that PF did not engage with Mr Kelliher and was the only director not to do so. This is denied by PF who also claims he was never given the opportunity to meet with Mr Kelliher alone. The Respondents say PF was entirely uncooperative in efforts to locate the Company’s statutory registers for which he had responsibility when he was Company Secretary. At a board meeting on 21 May 2025 it is alleged that PF did not change his previous position that there had been no fraud committed at the Company but merely said he would “consider it”. It is also alleged that PF admitted that he did not possess the Company’s statutory registers but he gave no reason for failing to engage with KPMG Law on this point.

36. Mr Creed states that he convened a meeting of the board on 11 June 2025 “...due to bona fide concerns in respect of [PF’s] performance of his role as director of the Company”.9 He refers to PF’s position in respect of the statutory books and records of the Company while PF was Company Secretary and to PF’s failure to constructively engage with Tab 20 of exhibits to affidavit of Gabriel Hogan sworn 29 July 2025. Para 9 affidavit of Patrick Creed sworn 28 July 2025.

third parties retained by the Company to regularise historic financial and governance issues at the Company. His position is supported by affidavits filed by John Coleman and Gabriel Hogan.

37. PF says it is mystifying why steps have been taken at this time to radically alter the status quo of the directorships in the Company. He says that it is inconceivable that 2 years since he ceased to be Company Secretary the Respondents are only now coming to the conclusion that his historic tenure as Company Secretary retrospectively justifies his removal as a director. He claims that the “…real goal of the Respondents… is to inhibit my access to the financial affairs of the Company and raise queries regarding the redirection of the Company’s business to entities controlled by the Respondents”.10 PF also says that he has been unfairly singled out, noting that Mr Hogan, Mr O’Mahony and Mr Coleman were also directors during the period investigated and that none of them had ever raised any queries or concerns in relation to the Company’s finances or any transactions.

38. It is not disputed that the board meeting held on 11 June 2025 was correctly convened and was quorate, with PF attending. The purpose of the meeting was a one item agenda, namely the convening of an EGM of the members of the Company which would consider the passing of an ordinary resolution pursuant to s. 146 of the 2014 Act to remove PF as a director of the Company.

39. The injunction application issued following the board’s decision on 11 June 2025 to convene that EGM for 24 June 2025. It is clear that if that EGM were to proceed the Majority Shareholders would vote to remove PF as director.11 Mr Hogan avers that consideration of the removal of PF as a director “...would be entirely on the basis of [PF’s] knowledge and/or participation in the wrongdoing which has been uncovered by the Company, giving rise to a Para 7 affidavit of Patrick Ferriter sworn 12 September 2025. See para 58 affidavit of Gabriel Hogan sworn 29 July 2025.

concern about his ability to discharge his fiduciary obligations”.12 These however are matters that have yet to be formally proven against PF and the wrongdoing referred to was uncovered over 3 years ago.13

40. There was some dispute in correspondence and the earlier affidavits, although not advanced in any detail in submissions, about whether the injunction application was issued prematurely. I do not think anything particularly turns on this point. I accept that PF was under pressure to file his application in advance of the scheduled EGM taking place on 24 June 2025. This necessitated the filing of papers by 18 June to ensure that an application could be made to restrain the proposed EGM on Monday 23 June, if necessary.

41. I turn now to consider how the parties engaged in the immediate aftermath of the issue of the injunction application.

Engagement of the parties post the issue of the Injunction Application

42. On 28 July 2025 the solicitors for the Company wrote to PF’s solicitors setting out the following proposal (the “Proposal”): “1 Irrespective of the outcome of the convened EGM, the Board of the Company shall continue to provide the Injunction Applicant with an equivalent amount of financial and accounting related information and documentation relating to the Company’s financial performance, shortly after each meeting of the Board, to (sic) which the Injunction Applicant has been receiving in his capacity as a director since May 2024, until the determination or resolution of the Oppression Proceedings in the Commercial List.

Para 60 affidavit of Gabriel Hogan sworn 29 July 2025. The initial assessment of the Company’s financial position undertaken by Ms Breen is dated 19 April 2022. Her report, identifying a gross deficit of approximately €2.2 million, is dated 17 June 2022 and was circulated to the board on 21 July 2022. The Grant Thornton interim report was issued on 9 March 2023, on foot of which independent senior counsel Mairead McKenna was appointed by the board to conduct a disciplinary hearing into SF’s conduct. SF was dismissed for gross misconduct on 28 August 2023 and was removed as a director with effect from 24 October 2023.

2. Additionally, the Company confirms that a draft of the final iteration of audited restated accounts for the period 2021-2023 (inclusive), which will be due for approval by the Board, shall be provided to the Injunction Applicant no less than seven (7) calendar days before the Board meeting to consider and approve the draft restated accounts and the Injunction Applicant will be invited to submit any written comments on the draft to the Board for their due consideration at the Board meeting (on the condition that any such written comments are received by the Chair of the Board within 48 hours of the Board meeting.”

43. The Proposal was rejected by PF in a letter from his solicitors dated 11 August 2025. PF says that the Proposal, although superficially attractive, actually reinforces the very information deficit that drove him to bring this application. He says that since 2023 no management accounts or financial information have been distributed to the board in accordance with historical practice. Offering to continue the same flow of information that PF complains so bitterly about is, he says, no remedy at all but rather an assurance to maintain the status quo of exclusion and bind him to giving up his statutory right to receive proper financial information as a director of the Company. Furthermore, PF says that the Proposal preserves the Respondents’ control over the timing and the content of the information that is given to him – denying him timely management information or an ability to test or challenge explanations in real time. PF argues that in the context of his quasi-partnership claim, the Proposal completely ignores his legitimate expectation of participation in the management of the Company.

44. In a response from the Company’s solicitors dated 8 September 2025 the Proposal was repeated, being said to be a genuine and reasonable attempt on behalf of the Company to maintain the status quo pending the hearing of the Proceedings. The letter said that PF had been repeatedly told why the Company had not furnished management accounts to the board and noted that the Company would not be in a position to provide the prior year performance and balance sheets until the restatement exercise was completed. It noted that even if PF was of the view that the financial information was deficient from his perspective, it was consistent with the position that pertained to all non-executive board members prior to the injunction application. The letter further stated that the second part of the Proposal would give PF the same entitlements, in all material respects, as if he remained on the board when the draft restated financial statements were presented to the board for review and consideration.

45. There was no further engagement on the Proposal.

46. On 6 October 2025 the current Company Secretary sent an email to each member of the board, including PF, giving notice of a board meeting to take place on 16 October 2025. The purpose of that meeting was for the board to consider, and if appropriate to approve, the final draft restated audited Company accounts and audit opinion for the years 2021 to 2023 (inclusive). PF responded to that notice on 11 October 2025 requesting certain information and clarifications by Monday 13 October. A response was issued to PF on 15 October to which he responded later that evening seeking further information and requesting an adjournment of the board meeting. Mr Creed responded to PF later that night noting that PF had had the draft restated accounts for a period of 10 days and had not provided any questions to put to KPMG at the proposed board meeting. Mr Creed denied there was any reasonable basis for an adjournment of the board meeting and the meeting in fact proceeded on 16 October 2025 as arranged.

47. Representatives from KPMG attended the board meeting on 16 October as did all company directors, including PF. The proposed resolution to approve the draft accounts for the period 2021-2023 was put to the board for a vote. PF voted against the resolution (without stating why) while the other board members voted in favour of approving the draft accounts for the period 2021-2023.

Outline arguments of the parties regarding the injunction Application

48. The Majority Shareholders take issue with the view expressed by PF that he needs to remain as a director to “see the basis upon which and the rationale for the re-statement of the accounts” because “…at trial, the value of the Company will be based on the accounts for the years that are currently being re-stated”.14 Mr Creed says the suggestion that PF should be entitled to remain as a director of the Company in order to monitor the financial position of the Company for the purposes of the Proceedings is entirely inappropriate and, in fact, would be a breach of PF’s obligations to the Company. He says that PF’s duties are owed to the Company and should not be used to further his own interests in the Proceedings. This is of course true for every director.

49. Mr Creed also says that PF enjoys certain rights to access information as a material shareholder of the Company and that there is an extensive discovery exercise ongoing in the Proceedings. In that regard counsel for PF referred to the fundamentally different (and lesser) statutory rights to information enjoyed by a shareholder. It does not appear that the Company itself has engaged in the Proceedings, whether to make discovery or otherwise, and the Majority Shareholders are the parties undertaking discovery. There was no evidence before me that the same information PF would be entitled to as a director would be obtained by PF qua shareholder or qua recipient of the discovery made or to be made by the Majority Shareholders.

50. Mr Hogan says that PF has received, and will receive as a non-executive director, the same financial information in relation to the Company as other non-executive members of the board. Accordingly he says no issues arise in that regard in respect of PF’s ability to Para 21 affidavit of Patrick Ferriter sworn 18 June 2025.

discharge his duties as a director.15 The Proposal envisages some, albeit limited, continuation of the provision of information beyond PF’s tenure as director until the determination of the Proceedings. What precisely that flow of information will be is not clear from the unusual wording of the Proposal which simply refers to a continuation of the same level of information as PF was previously receiving (including, it would appear, for periods outside the restated years or after completion of the restated accounts). I was advised by counsel for the Majority Shareholders that the intention of the Proposal was that PF will get the same information going forward as will be given to the other non-executive directors. That is not clear however from the wording of the Proposal itself.

51. The Respondents say that the restatement of accounts will be subject to independent oversight and professional scrutiny so there is no basis for PF to remain as a director to oversee this exercise. The court understands that the engagement of reputable and independent professionals to prepare restated accounts should be a considerable comfort and assistance to all parties as well as to the court. It would not however of itself justify PF’s exclusion if it was ultimately determined that PF had a right to participate in the management of the Company.

52. The Majority Shareholders allege that in making this application PF is not concerned with performing his obligations as a director but rather is motivated by his own self-interest in retaining access to the Company’s confidential information pending the resolution of the Proceedings. On the other hand PF alleges that the Majority Shareholders brought on this issue as part of their efforts to seek to wear out the Applicants, and cause them to incur additional costs in the attempt by the Respondents to gain some advantage in the Proceedings.16 Counsel for PF queried why the Respondents are only now taking this action Para 28 Second Replying affidavit of Gabriel Hogan sworn 26 September 2025. See for example para 8 affidavit of Patrick Ferriter sworn 12 September 2025.

on the cusp of the trial of the Proceedings, the timing of which he said was highly unusual and contrived. He argued that if the Respondents had concerns about PF’s role as a director, that would have emerged years ago. It was argued that the real intent was to remove PF’s oversight and to deprive him of access to the information he is entitled to as a director under s. 284 of the 2014 Act thereby giving the Majority Shareholders a tactical advantage to make decisions between now and the trial which are prejudicial to PF’s position.

53. The court recognises that the presence or absence of an injunction may be a tactical benefit to either side in the context of the Proceedings.

Relevant legal principles

54. On an injunction application a court is not in a position to determine any disputed issues of fact. However, the court can assess the general credibility of the arguments advanced by the parties and investigate whether more than bare assertions are at play.

55. The entitlement of the members of a company to remove a director of that company is expressly provided for by s. 146 of the 2014 Act. Section 146(1) provides: “A company may by ordinary resolution remove a director before the expiration of his or her period of office notwithstanding anything in its constitution or in any agreement between it and him or her.”

56. Injuncting the removal of a director by the majority of the company shareholders would clearly interfere with this provision which recognises the general entitlement of members to remove directors by majority vote. I am satisfied that any injunction restraining such removal should only be granted on an exceptional basis.

57. It is not surprising therefore that there are relatively few reported cases in which injunctions were sought to restrict the removal of directors by the majority shareholders in a company. Courts do not generally intervene in the day to day running of companies. To do so would undermine the entitlement of directors and shareholders of companies to properly take steps in relation to a company, as provided by statute. The courts have noted that it is a grave matter for a company to have on its board a person whom the majority of members do not desire to have there.17 There have however been some reported cases where the courts have intervened such as McGilligan v O’Grady [1999] 1 I.R. 346 and Ancorde Limited v Horgan [2013] IEHC 265. However, there were special circumstances at play in each case. In McGilligan there was a relevant agreement with representative shareholders while in Ancorde there was an unresolved question as to the ownership of the shares to which the voting rights to remove the director attached.

58. The Respondents say that PF’s claim does not fall within any of the exceptional categories of case in which the courts have intervened to injunct the proposed removal of a director by the majority of shareholders. They say, for example, that PF is not a representative shareholder, nor is there any challenge to the voting rights of the Majority Shareholders. It is accepted that there is no shareholders’ agreement in the present case. However, the Applicants claim that the Company is in the nature of a quasi-partnership and thus that PF has an “external title” on this basis to remain as a director of the Company. This is strongly disputed by the Respondents.

59. Considerable reliance was placed by PF on the Supreme Court’s decision in McGilligan as authority for the proposition that even a lawful action may be restrained due to the effect in law of s. 205 of the Companies Act 1963 (the predecessor of s. 212 of the 2014 Act). The Supreme Court held in that case that the exclusion from management by the majority shareholders gave rise to a substantial issue warranting the granting of interlocutory relief to maintain the plaintiff’s position as director pending trial. After stating that the effect of s. 205 See, for example, comments of Hardiman J in Dowling v Cook [2013] IESC 25 at page 11.

was to curb the majority’s power to act in a manner which was harsh and oppressive, Keane CJ held at p. 362: “Why then should the court, on an application for an interlocutory injunction, be unable to restrain the company from removing a director pending the hearing of the petition under s.

205 where he has established that there is a serious question to be tried as to whether his exclusion from the affairs of the company constitutes conduct which would entitle shareholders to relief under s.205?... If it is desirable… to preserve the plaintiff’s rights pending the hearing of the s.205 proceedings and the balance of convenience does not point to a different conclusion, I see no reason why interlocutory relief should not be granted.”

60. Barron J stated at page 363 of the judgment that: “The essence of the instant case is that no absolute reliance can be placed upon a statutory right given to the general meeting of the company when the exercise of that right is alleged to be wrongful; in this case a breach of the provisions of s. 205 of the Companies Act, 1963. In all such cases, determination of the issue as to the granting of interlocutory relief must be dependent upon the general rules applicable. Here they favour the granting of the relief allowed.”

61. Another authority relied upon by PF was the decision in Avoca Capital Holdings [2005] IEHC 302, albeit that in that case the court on the facts refused an injunction. Clarke J (as he then was) followed McGilligan holding, at page 9: “It seems clear, therefore, that the principles applicable to the grant or refusal of an injunction seeking, as here, to restrain the removal of a director pending the hearing of a section 205 petition are no different from those applicable in any other case…”

62. The mere existence of an underlying claim for oppression, even if entirely stateable, will not of itself entitle a minority director to an order restraining his removal. In Dowling & Ors v Cook & Ors [2013] IESC 25 Hardiman J referenced the need for an applicant director to have what he described as “…an external title, deriving from the agreements between those interested in the Company, apart from the standing in Company Law”.

63. The key issue to consider in this case therefore is whether there is any basis to support PF’s assertion of a quasi-partnership such as would potentially bring him within the scope of those exceptional cases in which an injunction might be granted to restrain his removal as director pending trial.

64. I will now consider the arguments advanced on this point.

Quasi-Partnership

65. The idea of a quasi-partnership is one of the most hotly contested issues between the parties. This is an issue of considerable importance for a number of reasons. In general terms it is an issue likely to be reflected in the valuation of the Applicants’ minority shareholding. It is potentially relevant to the question as to whether removal would itself constitute oppression. It is also relevant to the question of assumption of duties by the shareholders to each other. For present purposes it is relevant to the question as to whether PF has some “external title” to remain as a director of the Company and to participate in its management. Of course, the validity of PF’s claim to a quasi-partnership is not an issue this court can determine in this interlocutory application one way or the other. It will however clearly be a matter that will have to be determined by the trial judge following evidence from all parties. What I need to consider for present purposes is whether there is any credible evidence offered on this proposition or if it is merely a bare assertion made by PF.

66. In his grounding affidavit PF states that the Company operated as a quasi-partnership and that having an ongoing role in the management of the Company is an essential part of that relationship. He says his exclusion as a director is contrary to the quasi-partnership nature of the relationship. There are however no particulars provided of that quasi-partnership in the grounding affidavit apart from those averments.

67. In his affidavit Gabriel Hogan avers as follows: “[T]he Company did not operate as a quasi-partnership, nor did members of the Company owe duties of good faith to each other. While for many years the Company operated on the basis of mutual trust between the parties, the Company was, at all material times, operated as a private company like any other with its shareholders owing no particular or special duties to each other, and with each being entitled to exercise their rights in their own selfinterest.”18

68. This position is contradicted by PF in his affidavit sworn 12 September 2025 with PF averring that the quasi-partnership was reflected in the way the board operated and the composition of the board up until the events giving rise to the Proceedings.19

69. In truth however the affidavits filed in this application do not set out with any degree of precision how an alleged quasi-partnership arises or exists in this case and if that was the only information before the court I may well have determined that this allegation was a bare assertion. However, I must look at what the parties have pleaded on this point.

70. Before doing so, it is useful to consider what is generally understood by the concept of a quasi-partnership. In Hamill v. Vantage Resources Limited and Simon Martin [2015] IEHC

195 Binchy J, at paras 68 and 69 noted as follows: “The concept of a quasi partnership, while recognised in law, is somewhat vexed and uncertain. Courtney describes it thus: “Where a relationship of equality, mutuality, trust and confidence, based on a personal relationship, subsists in a private company it may be appropriate that it be considered as a Para 13 Replying Affidavit of Gabriel Hogan sworn 29 July 2025.

See para 10 thereof

quasi partnership. Such a finding may result in members and directors being found to be restrained on equitable grounds from enforcing rights found in the “black letter of the law””. In the matter of Dublin Cinema Group [2013] IEHC 147 Charleton J put it slightly differently where he said that a quasi partnership could exist in a company when: Its background is two or more friends, two or more family members, two or more business partners operating together through a limited liability or other corporate vehicle for the purpose of carrying on their business…””

71. From the outset, the points of claim have pleaded a quasi-partnership. Para 10 confirms that PF originally set up a truck business known as Cork Truck Services in 1976 with a Mr Sean O’Callaghan on a 50/50 basis. In the early 1980s PF and Mr O’Callaghan were approached by the OHM Group to take on the servicing of Hyster forklift trucks. In February 1983 Cork Truck Services Limited was incorporated on the basis of a 50/50 shareholding between PF/Mr O Callaghan and Mr O’Brien/ Mr Hogan/Mr McCourt (as the owners of the OHM group). The business premises of Cork Truck Services Limited was moved to a building shared with OHM who at that time had a DAF truck business.

72. In 1985, following the departure on an OHM employee to set up his own business, PF says that OHM approached PF and Mr O’Callaghan to see if they would set up a new business with OHM to sell and service DAF trucks in Cork. They agreed to this. On 5 September 1985 the Company was incorporated as a 50/50 venture between PF/Mr O’Callaghan on the one hand and the OHM Group on the other. PF claims at para 11 of his grounding affidavit in the Proceedings sworn 21 June 2022 that “[t]here is no way your deponent or Mr O’Callaghan would have gone into business with the OHM Group if it was not based on a 50/50 partnership”.

73. PF pleads at para 14 of the points of claim that “[t]he 50/50 nature of this business was critical to Patrick Ferriter and Sean O’Callaghan and formed an essential element of the rationale of the formation of the business. Although the business has evolved over the years it continues to be a quasi partnership. Over the course of the following 37 years Gabriel Hogan and Declan McCourt have frequently referred to the relationship as a partnership and to a large extent, the Respondents left the Applicants to run the business on this basis”.

74. The Company moved to a new purpose-built facility in 2003. In 2006 Thomas Smith, a senior employee in the OHM Group received a 10% shareholding in the Company. This reduced the shareholding of the other shareholders and left the combined PF/O’Callaghan shareholding at 45%. Subsequently Mr O’Callaghan retired from the Company. This led to a significant restructuring and Mr O’Callaghan’s shares were divided amongst the other shareholders of the Company leaving PF with a 30% shareholding, Mr Smith with a 13% shareholding and Mr O’Brien, Mr Hogan and Mr McCourt holding 19% each. This, for the first time, gave the members of the OHM Group a majority shareholding in the Company of 57%. PF says that he was comfortable with that change as he had been in business with the parties at that stage for over 20 years and the parties had a very good relationship based on mutual trust. PF remained as a director (as he had been from the outset) and continued as managing director. In 2009 Mr. McCourt and Mr Hogan sold their shares in the Company to DDI and SF acquired a 4% stake in the Company. SF became managing director, taking over from PF, in 2014.

75. In 2017/2018, DDI (Gabriel Hogan and Declan McCourt) (and possibly the estate of Conal O Brien) reorganised their own shareholding in the Company resulting in each of them incorporating their own company which then held their shares. PF pleads that the composition of the board of the Company did not alter after this re-organisation which he says, at para 20, “…was reflective of the fact that the Company continued to be a quasi-partnership”.

76. At para 21 of the points of claim PF says "[a]s members of a quasi-partnership the members thereof owe duties to each other to act in good faith and to allow the Applicants to fully participate, on an equal basis, in the operation of the business of the Company”.

77. All of those pleas are fully denied by the Respondents who say the Company should be treated as any other company and is not and never has been a quasi-partnership. It is expressly pleaded that the fact that PF agreed to a restructuring which left the members of the OHM Group with the controlling majority demonstrates that the Company did not operate as a quasi-partnership. The Respondents deny that the Applicants enjoy an entitlement to fully participate, on an equal basis, in the operation of the business of the Company. Reliance was placed on the decision in Neenan Travel Limited v. Minister for Social and Family Affairs [2011] IEHC 458 where Laffoy J quoted from Courtney on The Law of Private Companies (2nd Ed., 2002) at para. 1.130 observing that “[e]videntially an inequality of shareholding is an anathema to the mutuality that has consistently been found to be a requirement for a quasi-partnership company”.

78. Counsel for PF argues that it is not uncommon for corporate structures to be a limited liability company and at the same time be deemed to be a quasi-partnership. He rejects the assertion that only a shareholding remaining on a 50/50 basis could be so deemed. Counsel for the Majority Shareholders, relying on dicta of Murphy J in Crindle Investments v. Wymes [1997] IEHC 211, says the presumption must be that parties who elect to have their relationship governed by corporate structures intend their duties, rights and remedies, to be governed by the legal provisions relevant to those corporate structures and not otherwise.

79. I find that there is, and has been from the outset of the Proceedings, a specific plea of quasi-partnership. PF is a founder and has been a director of the Company for over 40 years – by far its longest serving director. There is nothing in the nature of hard evidence, such as a shareholders’ agreement, which positively supports the notion of a quasi-partnership. On the other hand, the plea of quasi-partnership goes beyond a mere assertion and there are factual circumstances set out which are said to support a quasi-partnership over 40 years with no change to that underlying position despite a change in shareholding. I cannot decide in this application any more than that the plea has been made from the outset and is more than a bare assertion. The determination of this issue will fall to the trial judge having heard all the evidence. I believe this claim made by PF is a claim in the nature of an “external title” to be and remain a director and involved in the management of the Company for so long as he is a shareholder, including having, as a director, a statutory entitlement to access financial information under s. 284 of the 2014 Act and an entitlement to participate in decisions about the business of the Company including the restatement of the Company accounts and enquiries regarding the alleged diversion of the Company’s business to other parties.

80. For that reason, I am satisfied that the facts of this case bring it within the confines of those limited exceptional cases where a court might consider restraining the removal of a director by the majority of shareholders. Without a plea of quasi-partnership I would not so find.

81. I now move to consider the arguments advanced in relation to the tests for interlocutory relief in this case.

No permanent injunction likely

82. The Respondents say that even if this court accepts the possibility of a quasi-partnership (which is strongly denied), there nevertheless remains a serious difficulty for PF in seeking injunctive relief to restrain his removal as a director. While there was broad agreement as to the relevant general principles applicable to the granting of interlocutory injunctions as set out by O’Donnell J (as he then was) in Merck Sharp & Dohme v Clonmel Health Care [2020]

2 I.R 1, there was significant disagreement as to the implication and consequences, in oppression proceedings such as the present case, of the first criterion identified in Merck, namely “whether, if the plaintiff succeeded at the trial, a permanent injunction might be granted. If not, then it is extremely unlikely that an interlocutory injunction seeking the same relief pending the trial could be granted”.

83. The Majority Shareholders argue that the nature of oppression proceedings are such that a permanent injunction restraining the removal of a director is extremely unlikely to be granted to a successful applicant. They say that the grant of a permanent injunction would be practically unworkable in the vast majority of oppression proceedings where relationships have deteriorated and become fraught to a point where cooperation in furtherance of the enterprise is no longer practical.

84. The Supreme Court in McGilligan expressly rejected the notion that an injunction should be refused simply because the relief sought in the interlocutory proceedings was not the same as the relief which would ultimately be sought in the oppression proceedings. In particular, the court held that an interlocutory injunction would not necessarily be refused on the grounds that a perpetual injunction would not be sought in the substantive proceedings. It was argued by the Respondents that the more recent authority of Merck with its focus on the likelihood of a permanent injunction being granted, should be taken as effectively overruling McGilligan and Avoca on this matter.

85. I do not agree with the latter broad proposition. I believe such an interpretation would be clearly at odds with the “essential flexibility” of the remedy of injunctive relief highlighted by the court in Merck. The very helpful criteria set out at para 65 in Merck were stated as steps which “might be followed in a case such as this”. Merck was not a case that involved a claim of oppression. It nowhere addresses or purports to overrule the previous Supreme Court authority in McGilligan. I accept that in oppression cases the most common order is an order for the purchase of the applicant’s shares at a value fixed by the court. However, it could not be certain that a permanent injunction would definitely not be granted. To interpret the unlikelihood of a permanent injunction at trial as being an absolute bar to obtaining interlocutory relief in all cases alleging oppression under s. 212 (with its varied possible outcomes) is not in my view mandated by the judgment in Merck. Nor does it follow that the line of authority in McGilligan and Avoca has been overruled by Merck or is inconsistent with it.

86. I now move to consider the remaining criteria for the granting of injunctive relief in line with the steps identified in Merck.

Is there a fair question to be tried?

87. This court must consider if it has been established that there is a fair or serious question to be tried, which may also involve a consideration of whether this case will probably go to trial.

88. The Majority Shareholders say there is no fair issue to be tried. In particular they say there is no evidence to substantiate a finding of a quasi-partnership, as alleged.

89. Given my view that the assertion of a quasi-partnership is more than a bare assertion, I find that the attempt to remove PF as director of the Company against his wishes and in the context of this alleged quasi-partnership raises a serious question as to whether his exclusion from the affairs of the Company constitutes oppressive conduct to him as a shareholder or in breach of a quasi-partnership. I make no finding that PF is likely to succeed on this issue at trial. Given the nature of the injunctive relief sought, being prohibitory in nature, I am not required to be satisfied that this higher threshold is met in this application.

90. Having found that there is a fair issue to be tried and that it probably will be tried, I must now consider how best to arrange matters pending trial. This involves considering the balance of justice, including in particular the question of the adequacy of damages, which is part of that balance.

Adequacy of Damages

91. It is certainly the case, as noted by O Donnell J in Merck at para 65(5) that “[i]n commercial cases where breach of contract is claimed, courts should be robustly sceptical of a claim that damages are not an adequate remedy”.

92. The Respondents argue that damages would be an adequate remedy for PF if he is found to have been wrongly removed as a director in circumstances where on PF’s own admission, the likely outcome of the Proceedings if the Applicants are successful will be a cash buyout of the Applicants’ shareholding in the Company. They say that PF’s interests in the Company are purely economic and that his role as director is predicated upon that economic interest. They argue that damages would be a more than adequate remedy if the court ultimately concluded that the convening of an EGM to consider PF’s role as a director, or his removal on foot of any resolution passed at such EGM thereafter, amounted to oppression.20 They also rely on the Proposal.

93. PF says that damages are a wholly inadequate remedy where they would be based on inaccurate financial statements that in his view are being deliberately restated to lower shareholder value. That argument in my view however centres more on the quantum rather than the adequacy of damages as a remedy per se. Arguably it also ignores two points. First, even if PF remains as a director and votes he will not be (and indeed has not been) able to prevent the restatement of the Company accounts agreed by the Majority Shareholders, representing the majority of the board. Second, the restatement exercise is being conducted and will be signed off by independent auditors.

S. 212(3)(d) of the 2014 Act expressly provides for the payment of compensation to any member of a company if the court is of opinion that the company's affairs are being conducted or the directors' powers are being exercised in a manner that is oppressive to that member.

94. What is, I believe, more relevant to the adequacy of damages is to look at the other consequences of PF’s removal as director on the facts of this case – namely his exclusion from board meetings resulting in an inability for him to speak and participate at those meetings and to be provided with financial and other information in advance of those meetings. The Proposal does not in my view adequately address those aspects. The Proposal would give PF sight of financial information only at the (disputed) level he was previously receiving and even then only after board meetings had been held. Unlike in Avoca, PF’s statutory entitlement as a shareholder to current financial information is not as extensive as he would be entitled to as a director of the Company.21 I was advised by counsel for the Majority Shareholders that the intention of the Proposal was that PF will get the same information going forward as will be given to the other non-executive directors – but the Proposal does not on its face commit to any increase in the flow of information to PF when the restated accounts are complete, nor for years not captured by the restated accounts. Counsel for PF argues that removal of PF as a director at this stage cuts to the core of his expectations as a quasi-partner and will alter the balance of power, which has existed for over 40 years, and access to information, and the right to participate at a “trial-critical phase” which can’t meaningfully be unwound by an award of damages after the fact.

95. Even where a director is in a clear minority on a board and cannot override the wishes of the majority, that director nevertheless retains the right to participate in board meetings with the benefit of the same company information as is available to the other directors. I accept PF’s claim that if he were removed as a director prior to the hearing of the Proceedings he would lose the limited power of scrutiny and management he presently retains. The restated Company accounts have now been approved by a majority of the board – but there remains

S. 284(3) of the Companies Act 2014.

both historic and future Company information that PF would be entitled to receive as a director. I also accept the possibility of reputational harm to PF if he is now removed as a director of the Company on the stated basis of, as yet formally unproven although undoubtedly serious, allegations of fraud and breach of fiduciary duty. On the other hand I see some force in the Respondents’ argument that the appropriate remedy for PF is not to be kept in his role as director contrary to the wishes of the Majority Shareholders but rather to be financially compensated for his exclusion if it transpires ultimately that PF ought not to have been removed as director. I take into account the provisions of s. 147(a) of the 2014 Act which provides that nothing in s. 146 shall be taken as depriving a person removed under it of compensation or damages or any other remedy available in respect of the termination of his or her appointment as director. The court is also entitled to award damages under s. 212 itself.

96. Although it is very finely balanced, I find that by reason of his claim of a quasipartnership entitling him to participate in the management of the Company, damages would not be an adequate remedy for PF to address his removal as a director at this time in the conduct of the Proceedings. This is despite the fact that damages, or at least a monetary payout, may be the remedy which is ultimately available to him as a shareholder for oppression if he is successful in the Proceedings. His removal as director of a quasipartnership thus losing an entitlement to receive and interrogate real time Company information in the context of his claim of oppression and the diversion of the Company’s business to the Majority Shareholders/DDI would not, in my view, be adequately compensated by an award of damages after the fact should he prove to be successful in the Proceedings.

Balance of Convenience/Balance of Justice

97. Having considered the adequacy of damages, this court must consider the remaining balance of convenience or balance of justice aspects in determining whether to grant injunctive relief, mindful of the fundamental objective of seeking to minimise injustice to the parties where their respective legal rights have yet to be determined.

98. In considering the balance of convenience, I note the undisputed evidence that PF has been a director of the Company for over 40 years. It is also clear that PF has not been receiving at least some of the available financial information of the Company. While that has been justified by the Respondents by reference to the restatement of the historic Company accounts, it is not clear how that justification applies to the financial years since 2023 or where the accounts have now been restated. The Majority Shareholders control the board of the Company. PF’s continued presence on the board would not change that reality – he remains in a minority of one. PF avers“[i]f I am removed from the Board of directors prior to the hearing of the oppression proceedings, the Respondents will suffer no harm, but I will lose altogether the limited opportunity that I currently have to scrutinise the finalised financial accounts of the Company and the mechanisms employed to redirect the Company’s business to DDI. It is imperative that I retain my right to to (sic) voice my concerns in relation to same on the record and in Board meetings. These rights to scrutinise and raise concerns will be completely lost if I am removed as a director of the Company. In such circumstances, to merely be provided with accounts after they have already been agreed, finalised and restated is completely insufficient”.22

99. The Respondents say that where the overwhelmingly likely outcome following trial is that the Respondents would be left in control of the Company, preventing the removal of PF as a director at this point makes no sense. The Respondents say that granting an injunction would cause immediate and irreparable prejudice to the Majority Shareholders at the level of principle – effectively forcing the Company to continue to have on its board a person who the majority of members do not desire to be there or do not believe is fit to be there. I accept that Para 36 affidavit of Patrick Ferriter sworn 12 September 2025 a court should be very slow to impose a director on a company, even on an interim basis. I do not however accept, that on the facts, irreparable damage would be done to the Company or the Majority Shareholders by leaving PF in situ as a director pending trial.

100. Although the Majority Shareholders do not wish him to be there, I have no evidence that PF is disrupting or preventing board meetings from taking place or preventing decisions being voted on and implemented by the Majority Shareholders. I have to take account of the plea of a quasi-partnership which would, if established, give PF an “external title” to remain as a director – thus placing a constraint on the normal majority rule for the removal of directors. While PF’s presence at board meetings undoubtedly makes those meetings more stressful and lengthy for all parties attending them, that is not a reason to exclude PF if the board meetings can otherwise run to their conclusion and decisions can be taken. I believe the factual situation here can be distinguished from that which arose in Avoca where the court noted that the petitioner remained entitled to full information as a shareholder and there was no evidence that the shareholders agreement envisaged the petitioner having an entitlement to participate in decision making. PF would of course remain bound by his duty of confidentiality in relation to any information he receives in his capacity as a director. It may also be inappropriate for him to receive certain information where there would be a conflict of interest, bearing in mind the ongoing litigation.

101. I also have to consider for how long it is likely in practical terms that an injunction restraining the dismissal of PF as a director might remain in place. This will largely depend on how much longer it will take for the Proceedings to come to trial. The recent decision to convene an EGM to remove PF as a director is one which was taken when the Proceedings were at an advanced stage. The court is told that the discovery process remains ongoing although discovery has been exchanged between the parties. There was no agreement as to precisely when the Proceedings might be ready for trial but it is expected that a trial would proceed in 2026. On that basis there would be a limited period of time during which an injunction would be required to remain in place. There is no evidence that the Company would be unable to hold functioning board meetings during that period if PF was to be permitted to remain as a director.

102. In the circumstances, I believe that the least risk of injustice favours maintaining the status quo and restraining the removal of PF as a director pending the trial of the Proceedings.

103. There is a particular onus on a party who has received the benefit of interlocutory relief to progress the substantive proceedings with due expedition. In this case I would propose giving the Respondents liberty to apply to lift the injunction in the event that, with the benefit of his interlocutory order, PF was to fail to advance the Proceedings to trial or if he sought to unreasonably obstruct the conduct of business at any future board meetings.

Orders to be made

104. In the circumstances and for the reasons outlined I grant an interlocutory injunction in the terms of paragraphs 1 and 2 of the first named Applicant’s notice of motion dated 28 June 2025.

105. The Respondents have liberty to apply in the event that any of the circumstances outlined in para 103 of this judgment arise before the trial of the action.

106. My provisional view at this point is that the costs of this application should be reserved to the trial judge. While appreciating that the court should determine costs at an interlocutory stage whenever possible, I believe I cannot justly or fairly determine the liability for costs at this stage. The reason relates primarily to the importance of the quasi-partnership argument which was the determinative factor in this court’s order. If PF is unsuccessful on this point at trial it follows that he ought not to have obtained injunctive relief restraining his removal as a director against the wishes of the Majority Shareholders. That issue will be one that the trial judge will have to determine as a matter of fact given its central importance to multiple aspects of the Proceedings.

107. If the parties wish to advocate for a different position on costs however, I will permit them to do so, exchanging submissions not exceeding 1500 words with each other and the court by 5 December.

108. I will list this matter for mention on Friday 12 December at 10.30am for the purposes of making final orders, including in relation to costs. If any further directions are required in relation to the Proceedings they can also be sought at that time.