Supreme Court allows creditors to seek High Court orders to regularize liquidation appeals despite procedural delays.

THE SUPREME COURT

Appeal No: 445/2012

Denham C.J.

Clarke J.

MacMenamin J.

Between/

Framus Limited, Amantiss Enterprises Limited,

(In Liquidation) and

Wilbury Limited

(In Liquidation)

Plaintiffs/Appellants

and

CRH plc, Irish Cement Limited, Roadstone Provinces

Limited, Roadstone Dublin Limited, Tradburn Limited,

Readymix plc, Kilsaran Concrete Products Limited,

And CPI Limited

Defendants/Respondent

Judgment of Mr. Justice Clarke delivered the 14th May, 2013.

1. Introduction

1.1 Companies are at the heart of much of the commercial activity in most modern states not least this one. The law governing

companies is, therefore, a fundamental building block of the legal order which underlies much commercial activity. There can be many

advantages for those who wish to conduct business through corporate entities. Most companies have limited liability. It is possible to

administer the affairs of the relevant business in a less cumbersome way so that a simple transfer of a shareholding can alter the

ownership of the business without having to transfer ownership of each of its assets. Likewise, those who do business with companies

know what they are doing. They may be dealing with an entity with limited liability. However, they also enjoy protections under

company law designed to prevent the abuse of that limited liability and also have the advantage of those provisions of company law

which typically allow anyone dealing with the company to assume that any internal requirements necessary to allow the company to

validly carry on the business concerned have been complied with.

1.2 All of those measures stem from the fundamental concept that a company is a different thing from its shareholders, its directors,

its creditors or anyone else who might, in certain circumstances, hope to benefit if the company is successful. Those series of

interlocking arrangements are a vital and fundamental part of our commercial legal order. The legal consequences of those

arrangements are no mere technicality. Those consequences are a fundamental part of the way in which business is done. The

business of a company is owned by that company and not by its shareholders or, indeed, a single shareholder where the entire

beneficial interest vests in one person.

1.3 One of the important ingredients of that commercial legal order requires that where companies become insolvent they are wound

up under the control of a liquidator. In those circumstances all of the powers of the directors disappear and are vested in the

liquidator. While, depending on circumstances, the ultimate beneficiaries of the conduct of the liquidation may be the creditors of the

company or even, in some circumstances, its shareholders, nonetheless the conduct of the affairs of the company is vested in the

liquidator subject only to such supervision, as the law provides, from the courts. That position derives from the fundamental

distinction between the company and those who have an interest in its success which is, as pointed out, at the heart of our

commercial legal order. That the affairs of a company in liquidation are under the control of the liquidator is, again, far from a

technicality.

1.4 That legal distinction is at the heart of the difficult issue which this Court now has to determine. It will be necessary in due

course to say a little more about the issues which arise in these proceedings generally and the process which these proceedings have

followed. However, as is clear from the title of these proceedings, both the second named plaintiff ("Amantiss") and the third named

plaintiff ("Wilbury") are companies in liquidation. These proceedings were struck out by order of the High Court (Cooke J.) on the 15th

July, 2012, on the grounds of inordinate and inexcusable delay. Each of the plaintiffs, including Amantiss and Wilbury, filed a notice of

appeal to this Court. It will be necessary to refer briefly to the basis of that appeal in due course. However, all but one of the

defendants have brought motions before this Court which assert that the appeal, insofar as it was filed on behalf of Amantiss and

Wilbury, is a nullity on the basis of a contention that the appeal was not authorised by the liquidator of those companies.

Furthermore, it is said that the liquidator does not, in any event, support the continuance of the appeal. On those grounds it is said

that the appeal should be stayed or struck out insofar as it relates to Amantiss and Wilbury.

1.5 Counsel instructed on behalf of the first named plaintiff ("Framus") and a Mr. Seamus Maye (“Mr. Maye”), who is a shareholder in

each of Framus, Amantiss and Wilbury, appeared at the hearing for the purposes of seeking to oppose the motions. Questions arose

at the hearing as to the standing, if any, of either Framus or Mr. Maye to become involved in this application. The application,

therefore, raises many important questions. However, as the backdrop to those issues is the progress of these proceedings to date, it

is next necessary to turn to the procedural history.

2. Procedural History

2.1 The proceedings were commenced by plenary summons on the 1st December, 1996. It is unnecessary, for the purposes of the

issue now before the court, to go into the precise details of the claims made. In substance Framus, Amantiss and Wilbury allege anti-

competitive activity and abuse of dominant position in the concrete business contrary both to domestic and EU competition law.

There are also additional claims made arising out of covenants in an agreement entered into in February 1994 and a claim in respect

of alleged conspiracy.

2.2 A detailed chronology of the proceedings up to their dismissal in the High Court is set out in paragraph 12 of the judgment

delivered by Cooke J. (Framus Limited and Others v CRH plc and Others [2012] IEHC 316) when ruling on the motions to dismiss for

inordinate and inexcusable delay. It is unnecessary to repeat that chronology in this judgment. That judgment also sets out a more

detailed account of the substantive claims brought by Framus, Amantiss and Wilbury in the proceedings. Three separate motions were

brought by various defendants seeking to have the proceedings dismissed on the basis of inordinate and inexcusable delay. For the

reasons set out in his judgment, Cooke J. made the orders sought on the motions in question.

2.3 A detailed account of the sequence of events from the delivery of the judgment of the High Court in that regard to the hearing of

these motions is set out in the judgment of the Chief Justice and it is again unnecessary to repeat that account here. As appears

from that account there was a significant interaction between the liquidator of Amantiss and Wilbury and the solicitors acting on

behalf of some of the defendants concerning the question of whether the liquidator had authorised an appeal and, in addition, there

was correspondence which threatened the liquidator with the possibility that he might be personally liable for the costs of any appeal

which was unsuccessful.

2.4 It is on the basis of the evidence noted by the Chief Justice that it is asserted that the liquidator did not authorise the bringing of

this appeal and, in any event, does not now approve of its continuance. It is also of some importance to refer to the fact that

separate proceedings were commenced in the High Court in which Mr. Maye sought relief, in his capacity as a creditor of Amantiss

and Wilbury, under the provisions of the Companies Acts. In those High Court proceedings, Amantiss Enterprises Ltd & Anor -v-

Companies Acts 1963-2013 [2013] IEHC 21 (Record No. 2012 696 COS) the primary reliefs sought by Mr. Maye, in an attempt to

ascertain the creditors’ wishes on the pursuance of this appeal, were orders pursuant to s. 309 of the Companies Act 1963 directing

that –

(i) a meeting of the creditors of Amantiss for the purposes of ascertaining the wishes of the creditors as to the conduct

by or on behalf of Amantiss of the appeal to the Supreme Court and associated matters, and

(ii) a meeting of the creditors of Wilbury for the purposes of ascertaining the wishes of the creditors as to the conduct by

or on behalf of Wilbury of the appeal and associated matters,

be called, held and conducted in such manner as the Court shall direct and that a person to be specified be appointed to

act as chairman of each meeting and to report the results thereof to the Court.

A number of other orders were also sought in an attempt to direct the conduct of the liquidator or, in the alternative, his removal. It

should be noted at this point that the same person acts as liquidator for both Amantiss and Wilbury.

2.5 When the application came before the court on the 20th December, 2012, it was indicated on behalf of the liquidator that he had

no objection to the convening of the respective creditors’ meetings. However, the liquidator did express concern as to the status of

the defendants to these proceedings in respect of such meetings because of what was said to be a conflict of interest arising out of

the fact that the status of those parties as creditors arose out of an order of 26th June, 2012, of Cooke J., awarding them costs in

the proceedings against, inter alia, Amantiss and Wilbury. The Court directed that this issue be tried at a hearing on the 18th

January, 2013.

2.6 That hearing is the subject matter of a judgment of Laffoy J. of the 22nd January, 2013, Amantiss Enterprises Ltd & Anor -v-

Companies Acts 1963-2013 [2013] IEHC 21 regarding the conduct of the creditors’ meeting. With regard to the status of the

defendants to these proceedings, she stated, at para. 18 of her judgment:

“Insofar as the core matter involves a contest, it is a contest between the respondents, who are the moving parties

and whose wishes, as such, are quite clear, to have the appeal struck out, on the one hand, and Amantiss and Wilbury,

as represented by the Liquidator, who, in turn, represents the interests of the creditors and the contributories of each,

with whom he may or may not be ad idem on the core matter, on the other hand. If the wishes of the respondents’

opponents, if they exist, in that contest are to be relevant in determining the contest, it would make absolutely no

sense to include the respondents, on the basis that they are claimants under the order for costs against Amantiss and

Wilbury which they are appealing, among the class designed to identify their opponents. If any application of s. 309 in

the context of the contest on the core issue is to be meaningful, the creditors of Amantiss and Wilbury for that purpose

cannot include any of the respondents, because a clear conflict of interest exists between the respondents and any

creditor among the general body of creditors who opposes the strike-out motion on that contest.”

Laffoy J. also made it clear, at para. 20 of her judgment, that the defendants to these proceedings would not be allowed to

participate, in the creditors' meetings by virtue of the fact that the quantum of their claim had not yet been ascertained. Laffoy J.

therefore directed, inter alia, that for the purposes of the meetings, “the creditors of Amantiss or Wilbury, as the case may be, shall

not include any of the defendants in the Competition Proceedings” and that the minutes and liquidator’s reports of these meetings be

furnished to the court within seven days of their conclusion.

2.7 Both meetings were held on the 24th January, 2013. The reports of both meetings confirm that resolutions were passed

expressing the wish of the creditors that this appeal be continued. The summary section of the report on the Amantiss meeting reads

as follows:-

“The total number of creditor present or proxies entitled to vote, who voted in favour of the Company continuing in the

Supreme Court Appeal proceedings…was eight, carrying a combined value of £303,004. Of these creditors, objections

were raised against two, carrying a combined value of £20,390.

No votes were passed against the company continuing in the Supreme Court Appeal proceedings.

The resolution was thus passed.”

The summary report in relation to the Wilbury meeting also confirms the passing of a unanimous resolution for the continuance of the

appeal.

2.8 It should also be noted that there were three separate motions, in similar form, before this court. The first motion was brought on

behalf of the first five defendants/respondents (“the CRH defendants”). A second motion was brought on behalf of the sixth named

defendant/respondent (“Readymix”), while the third motion was brought on behalf of the eighth named defendant/respondent (“CPI”).

The seventh named defendant/respondent (“Kilsaran”) did not bring a separate motion but counsel on behalf of Kilsaran informed the

court that Kilsaran supported the motions.

2.9 Although it is not central to the issues which arise on these motions, it is appropriate to briefly touch on the basis on which

Framus, Amantiss and Wilbury appeal to this court. In addition to asserting that, on the merits, the substantive proceedings should

not have been dismissed for inordinate and inexcusable delay, it is said that the issue of delay should be remitted back to the High

Court on the basis of an allegation of bias on the part of the trial judge deriving from what is said to be a shareholding by the judge in

CRH. There was also before this Court a motion on behalf of the CRH defendants seeking discovery relevant to the question of the

knowledge of Mr. Maye concerning any such shareholding. However that motion would only be of relevance if these appeals can

lawfully continue and it was, therefore, adjourned until such time as the outcome of the motions which seek to have the appeals

dismissed had been determined.

3. The Issues

3.1 As pointed out, three separate motions were brought by respectively the CRH defendants, Readymix and CPI. However, each

counsel adopted the arguments of the others and there was no material difference in interest, at least so far as this application is

concerned, between those various defendants/respondents to whom I shall refer collectively as the moving parties.

3.2 Thus it is possible to summarise the collective arguments of the moving parties in the following terms:-

(a) It is argued that the appeal is a nullity on the basis of a contention that the evidence is said to disclose that the

liquidator did not authorise the filing of a notice of appeal on behalf of Amantiss and Wilbury.

(b) It is said that, even if the court is not satisfied that the liquidator did not authorise the filing of a notice of appeal on

behalf of Amantiss and Wilbury, it is at least clear now that the liquidator does not authorise the continuance of the

appeal on behalf of those companies.

(c) As a specific consequence of (b) it is said that there is no one before the court who has standing to oppose the

applications for, it is argued, the only person who has authority to give instructions on behalf of the companies concerned

is the liquidator and there was no representation on behalf of or with the authority of the liquidator despite he having

knowledge of the applications.

3.3 In addition to those three grounds the question of the standing of counsel for Framus and Mr. Maye to address any argument to

the court was also raised.

3.4 In opposing the application, counsel for Framus and Mr. Maye responded in the following way.

3.5 First, it was asserted that, on the evidence, the court should conclude that there was a sufficient authorisation from the

liquidator for the filing of a notice of appeal on behalf of Amantiss and Wilbury. In particular, it was argued that the proper inference

to draw from the evidence was that the liquidator had authorised Framus and/or Mr. Maye to commence and maintain the proceedings

while reserving to himself an entitlement to bring the proceedings to an end at any stage. On that basis and on the evidence referred

to in the judgment of the Chief Justice it is argued that the authority given has not (or at least at the time of the filing of the notice

of appeal had not) been revoked and was sufficiently wide to encompass maintaining an appeal unless expressly countermanded by

the liquidator.

3.6 Second, it was acknowledged that there might be some difficulty in this Court, as a court of appeal and on a motion heard on

affidavit with, perhaps, limited evidence and in the absence of the liquidator, coming to a definitive conclusion on the question of

whether it could be said that the filing of the notice of appeal on behalf of Amantiss and Wilbury was authorised. On that basis, as a

fallback position, it was argued that this Court should, in those circumstances, put in place appropriate measures to facilitate a proper

determination of that question in the High Court.

3.7 Third, it was accepted that counsel no longer had instructions on behalf of Amantiss and Wilbury. While it was accepted that the

solicitors who had carriage of the proceedings in the High Court remained on record (those solicitors having filed the notice of appeal)

it was effectively accepted that those solicitors no longer had instructions because of the position adopted by the liquidator.

However, it was argued that, particularly having regard to the decision of the creditors to support the appeal, the court had a

jurisdiction to put in place appropriate measures to allow the creditors to seek orders from the High Court which might allow the

appeal to be regularised. For like reasons it was suggested that the court was not bound to allow the moving parties' motions simply

because, at this precise moment, the liquidator does not oppose them.

3.8 So far as standing is concerned, it was first argued that Framus and/or Mr. Maye have standing to assert that their actions in

procuring that the notice of appeal be filed on behalf of Amantiss and Wilbury were proper and lawful in circumstances where it is

clear that Framus and/or Mr. Maye gave the instructions for the filing of a notice of appeal on behalf of Amantiss and Wilbury, where

it is alleged by the moving parties that they had no authority so to do and where it is, in those circumstances, asserted that Mr.

Maye is personally liable for any costs arising out of what is said to be a null appeal. It is said that Framus and Mr. Maye must be

entitled to defend themselves against those accusations and the possible consequences in costs. It is also said that Framus and Mr.

Maye are entitled to be heard for the purposes of asserting that the notice of appeal was validly brought on behalf of Amantiss and

Wilbury.

3.9 So far as the second and third issues are concerned it is argued that a party who is a creditor and who would have, clearly,

standing to bring an application in the High Court in exercise of that court's supervisory role, under the Companies Acts, over

liquidations, has at least standing to invite this Court to afford it an opportunity to seek to invoke the relevant jurisdiction of the High

Court.

3.10 Finally, it is appropriate to make brief mention of the fact that counsel for CPI made an additional point which drew attention to

what was said to be a lengthy gap between the resolution of the creditors to support an appeal and the date of the hearing of these

motions before this Court during which time, it was said, no action had been taken to move matters along.

4. DISCUSSION

4.1 It is perhaps appropriate to start with the question of standing, for if Framus and Mr. Maye have no standing then it would,

ordinarily, be inappropriate to consider any arguments put forward on their behalf.

4.2 First, it seems to be clear that Mr. Maye must have standing to deal with the question of whether he had authority to instruct

solicitors to issue a notice of appeal in the name of Amantiss and Wilbury. He is, after all, sought to be made liable for the costs of so

doing on the basis that his authorisation or instructions to issue the relevant notice of appeal on behalf of those companies was

wrongful. But even apart from that, it seems clear that a party who asserts that they had authority to issue proceedings or file a

notice of appeal must be entitled to be heard on the narrow question of whether they in fact had the authority concerned.

4.3 However, it also needs to be noted that the dispute as to that authority is not one which directly involves any of the moving

parties at all although obviously the moving parties have an interest in the result of that dispute. The dispute appears to be one

between Mr. Maye, on the one hand, and the liquidator, on the other hand, concerning, in reality, the extent of the general authority

given to Mr. Maye and/or Framus to conduct these proceedings.

4.4 While Mr. Maye has, therefore, standing to argue that he had appropriate authority, that question cannot, in my view, be

resolved on this motion for at least two reasons. First, as pointed out, the true dispute is between Mr. Maye and the liquidator. The

liquidator is not, as such, a party to this application. In that context, it is worth recording that counsel for the CRH defendants

suggested that it might well be the case that the liquidator did not seek to be represented at the hearing of these motions because

he is of the view that the appeal was not authorised by him and that it was not, therefore, for him to involve himself in a process

which he says was wrongfully taken in the name of a company which is under his control in his capacity as liquidator. Be that as it

may, the liquidator, in his separate capacity as such, was not a party to the motion and was not, as a matter of fact, heard on the

motion. Likewise no direct evidence of the liquidator's views was before the court although both sides exhibited certain

correspondence passing to and from the liquidator from which the liquidator’s view might be inferred.

4.5 Second, on the facts, it seems to me that it would be impossible to resolve the real issue between Mr. Maye and the liquidator on

a motion heard on affidavit. The real question of fact is as to the extent of the authority conferred by the liquidator on Framus and/or

Mr. Maye to conduct the proceedings. Did it, as counsel for Mr. Maye and Framus argues, extend to Mr. Maye being entitled to

maintain any appeal subject only to the right of the liquidator to countermand such a course of action? Did it, on the other hand, as

the various counsel for the moving parties asserted, only extend to maintaining the proceedings at first instance requiring, on the

basis of that argument, a fresh authority in the event that an appeal was contemplated? While there may be legal issues deriving from

the law of agency which would inform any decision on that question, it is also possible that a more detailed analysis of the facts

(including a requirement for oral evidence and cross examination) would be required before a proper resolution of that question could

be arrived at.

4.6 While I am satisfied, therefore, that Mr. Maye and/or Framus has standing to be heard on the question of whether either had

authority to instruct that a notice of appeal on behalf of Amantiss and Wilbury be filed, I am not satisfied that it is possible to resolve

that question on these applications. I will return to the consequences of that finding in due course.

4.7 So far as the current position of the liquidator is concerned, there does not seem to be any doubt but that, on the evidence, the

liquidator is strongly opposed to the continuance of this appeal. It is necessary to consider the consequences of that situation. The

first consequence must be that, as things currently stand, the appeal cannot progress. Whatever may be the arguments about the

extent of the standing of Mr. Maye and/or Framus, the one thing that is absolutely clear is that neither have the authority or standing

to run the appeal itself or, indeed, take any material step in furtherance of the appeal. In fairness, I did not understand counsel to

argue otherwise. To allow a material step in furtherance of an appeal to be progressed contrary to the views of the liquidator would

be in fundamental breach of the very building blocks of the legal order in which commerce takes place in this jurisdiction. It could not

be countenanced by the courts.

4.8 However, a more subtle question arises. Does Mr. Maye and/or Framus have standing to urge on the court that they be given an

opportunity to seek to bring about a situation where the appeal can properly go ahead?

4.9 A starting point must be to consider that there are many wholly uncontroversial cases where there may be a problem with

proceedings continuing because of the status of one or other party. A party to litigation may die in circumstances where that party's

claim may remain in being and where the proceedings may, therefore, have to be reconstituted by an application being made for the

appointment of a personal representative and that personal representative being joined in the proceedings. Likewise, it is not entirely

unusual for companies which are parties to litigation before the courts to find themselves struck off the Register of Companies for

administrative failure in relation to the filing of annual returns and the like. In those circumstances unless and until the company

concerned is restored to the register it does not exist. A very strict view of standing would mean that in neither of those cases (and

doubtless other examples could be given) would anyone be entitled to address the court on behalf of the relevant party in relation to

the litigation concerned, for in the intervening period between a death and the appointment of a personal representative or between

a striking off the register and a restoration, there is no one who is, strictly speaking, entitled to be represented.

4.10 However, courts frequently hear representatives of interested parties solely for the purposes of being informed as to the likely

progress of measures designed to regularise the situation. It could hardly be doubted that, for example, the widow of a deceased

plaintiff could be heard to suggest that the court might afford some time to allow her to extract a grant of probate so that the

proceedings could continue. Likewise, it could hardly be doubted that a solicitor, representing those who had standing to apply to

have a company restored to the register, could not address a court which had carriage of proceedings involving that company for the

purposes of urging that an opportunity be given to allow the company to be restored.

4.11 I fully appreciate that the situation which faces this Court in this case is very different to the unexceptional examples which I

have given. Here the court is faced not with a temporary lacuna brought about by unfortunate circumstances such as a death or a

failure of administration. Here, the court is faced with a situation where there is a person who is entitled to speak for the companies

(the liquidator) and where that person does not want the proceedings to go ahead.

4.12 However, the fact remains that the creditors of Amantiss and Wilbury do have standing, as creditors, to seek to invoke the

supervisory jurisdiction of the High Court in relation to the liquidation of those companies. The High Court would have jurisdiction to

make orders or give directions which could have the effect of bringing about a situation where the prosecution of the appeals of

those companies was permitted. I should emphasise that nothing which I say should be taken as giving any indication as to how the

High Court should, on the facts of this case, exercise any such jurisdiction. The fact that the court has a jurisdiction, however,

cannot be doubted.

4.13 In those circumstances I am satisfied that Mr. Maye, and the creditors of the respective companies, have a very limited standing

to address this Court on what should happen in the light of the fact that the liquidator does not wish to prosecute this appeal. Their

standing is confined to one which allows them to urge on the court that they be given an opportunity to invoke the supervisory

jurisdiction of the High Court in a manner which would allow the appeals to go ahead. The creditors have no wider standing

concerning this appeal.

4.14 The fact, of course, that the creditors may have standing to urge such a course of action on the court does not mean that the

court must necessarily accede to the application. It does, however, seem to me that this Court has a jurisdiction, in an appropriate

case, to adopt measures designed to permit a party to seek to invoke a supervisory jurisdiction of the High Court which might, as its

result, have an effect on how an appeal before this Court is to be conducted or, indeed, whether such an appeal can be conducted

at all. If, for example, the beneficiaries of an estate took serious issue with the way in which an appeal, material to the estate, was

being conducted (or not conducted) in this Court then the court would have a jurisdiction to consider whether those beneficiaries

should be given an opportunity to invoke the supervisory jurisdiction of the High Court in respect of the administration of estates so

as to bring about a change in the way the appeal was to be approached Where there is real doubt as to who can speak for a

company then it is appropriate that a court having seisin of proceedings involving that company make an appropriate allowance to

permit the question of who can speak for the company to be definitively determined in appropriate proceedings. Even where it is clear

that, at a particular moment in time, a specified person has authority to speak on behalf of a company but where there is a credible

basis for believing either that the High Court might, in the exercise of its supervisory function over companies under the Companies

Acts, adopt measures which might alter the existing situation or that steps could be taken in a short period of time which might

likewise change that situation, then a court should lean in favour of allowing an opportunity to bring about such a charge provided

that, in so doing, no disproportionate prejudice is caused to any other parties to the relevant substantive proceedings.

4.15 It should, of course, be emphasised that amongst the factors which could legitimately be argued as giving rise to prejudice would

be any material delay in the conduct of proceedings or of an appeal before this court. This court would have to consider whether it

was realistic to anticipate that any process sought to be invoked before the High Court could be completed in a time frame which

would allow the appeal to progress without significant delay. Likewise to the extent that a party wished to be given some leeway so

as to seek to invoke measures available under a companies rules which, if successfully invoked, might alter the course of an appeal,

then again this court would need to be satisfied that any such measures could be invoked in a time frame which would not materially

affect the progress of the appeal.

4.16 It is clear, therefore, that the court has a jurisdiction. In exercising any such jurisdiction this Court must, of course, take into

account of all the circumstances of the case. The factors which may prove to be important may vary from case to case. However, in

general terms it seems likely that amongst the factors that would be considered important would be the following:-

(a) Whether, on the basis of the materials placed before this Court, there seems to be a realistic possibility (not

necessarily a probability) that orders or directions could be secured from the High Court and/or other measures put in

place which would have the effect of significantly altering the course of the appeal (including, as here, allowing an appeal

which can not now be prosecuted to be prosecuted);

(b) The conduct of the parties seeking the opportunity to invoke the relevant supervisory jurisdiction and/or to urge the

adoption of relevant measures including the timeliness of seeking to adopt any procedures or measures;

(c) The potential for, and extent of, any prejudice to other parties to the appeal.

Doubtless other factors might loom large on the facts of any individual case.

4.17 In those circumstances, it is necessary to consider whether some leeway should be given to allow that the supervisory

jurisdiction of the High Court in respect of liquidations be invoked in this case.

5. Application to the Facts of this Case

5.1 It seems to me that it is appropriate to characterise any potential application which might be made by the creditors in this case

as one where there is a realistic possibility that orders might be made, directions given or measures put in place which would allow

this appeal to go ahead. I have come to that view because it is clear that the creditors support the appeal going ahead. That is, of

course, far from conclusive. The High Court will have to consider all the circumstances of the case including the relevant law and,

doubtless, any financial consequences for all parties. It will be a matter for the High Court to hear whatever is offered by any party

entitled to be heard and to come to its own conclusion. Nothing in this judgment should be taken as giving any indication as to what

the result of any such application should be.

5.2 Next, it is necessary to consider the conduct of the parties. It seems to me that there is some justification for the criticism made,

in particular by counsel for the CRH defendants, but supported by counsel for the other moving parties, of the fact that neither this

Court nor the other side were informed in a timely fashion by Mr. Maye or Framus of the fact that the liquidator had clearly indicated

that he did not want the proceedings to progress. Indeed, the fact that a motion to adduce additional evidence was issued on behalf

of Amantiss and Wilbury after it had become clear that the liquidator did not approve of the appeal advancing is a serious matter to

which the court needs to attach appropriate weight. Indeed, it would appear that it was only after that motion was issued that the

moving parties were informed of the liquidator's position. On the other hand, it is clear that relevant creditors have already sought to

invoke the jurisdiction of the High Court and procured orders (albeit ones under appeal) which provided for the convening of the

creditors' meetings to which reference has been made and which gave directions about who could vote at that meetings. Those

meetings have, of course, now been conducted.

5.3 It seems clear from the order of Laffoy J. that she was not persuaded that it would be appropriate to go any further until such

time as this Court had had an opportunity to consider these motions. That position is wholly understandable and is fundamentally

correct. It would have been an entirely legitimate concern on the part of Laffoy J. that any further order which she might have made

might be seen as interfering with the jurisdiction of this Court to consider the status of an appeal pending before it. However, the

fact that Laffoy J. was, therefore, quite properly not prepared to consider making any more substantive orders until this Court had

considered the motions does provide, in my view, an adequate explanation as to why matters have not progressed further in the High

Court notwithstanding the time which has elapsed since the vote of the creditors in favour of the appeal continuing.

5.4 So far as conduct is concerned it can, therefore, be properly said that the creditors have moved with reasonable expedition so as

to seek to invoke the jurisdiction of the High Court but that their conduct in failing to bring the position of the liquidator to the

attention of both the court and the other side in a timely fashion is a factor that has to be taken into account against giving leeway.

5.5 Third, it does not seem to me that any significant prejudice would be suffered by any of the moving parties should a short and

tightly controlled opportunity be given to the creditors to seek to invoke the supervisory jurisdiction of the High Court.

5.6 Taking all those factors into account, and having regard to the fact that the conduct of the creditors is the only factor which

mitigates against them, I have come to the view that the balance of justice requires that the creditors be given an opportunity to

seek from the High Court such orders or directions as might allow this appeal to go ahead in a lawful fashion. Against that

background, it is next necessary to turn briefly to the form of order.

6. The Form of Order

6.1 I agree with the order proposed by the Chief Justice in her judgment. That order affords any party with standing an opportunity

to take, in a short timeframe, any measures open to them to regularise these appeals but also preserves the position of the liquidator.