Supreme Court allows second bidding round in liquidation due to procedural defects in initial bids.

THE SUPREME COURT

[Appeal No: 205/2014]

Clarke J.

Laffoy J.

Dunne J.

In the Matter of Buzreel Limited

And In the Matter of the Companies Act 1963 to 2012

Between/

Demirca Limited

Applicant/Appellant

and

Niall Hughes, Official Liquidator of Buzreel Limited (in official liquidation) and Midland Web Printing Limited

Respondents

Judgment of Mr. Justice Clarke delivered the 16th July, 2014.

1. Introduction

1.1 When any company goes into liquidation by virtue of insolvency the risk to creditors is obvious. A principal, if not the principal,

feature of the relevant insolvency laws governing such liquidations is a desire to ensure that, to the greatest extent possible,

creditors will be paid. It is, however, principally for the liquidator to attempt to dispose of the assets of the insolvent company to the

best advantage of the liquidation and to ensure that the funds thereby realised are paid to the creditors in the order of priority

determined by law. Obviously the more funds that can be secured by the liquidator the better the overall position of the creditors

generally will be, with, in an appropriate case, categories of creditors who would only have received a dividend being paid in full and

other categories receiving some dividend which might not have been available had less funds been secured by the liquidator.

1.2 It is as against that very general background that the difficult issue, which had to be considered in the context of this

application, which arose both in the High Court and in this Court, arose. The company named in the title to these proceedings

("Buzreel") has been the subject of liquidation proceedings initiated by the second named respondent ("Midland"). Midland presented a

petition to wind up Buzreel on the 2nd April, 2014. The first named respondent ("the liquidator") was appointed provisional liquidator

on that day. Buzreel was the owner of the only classified advertising business in Ireland being the well known magazine "Buy and Sell".

It was at all times clear that achieving the maximum value for the principal assets of Buzreel, being its ownership of "Buy and Sell" and

related assets, would be critical to the interests of the creditors. In that context the liquidator immediately advertised the sale of

those assets (within two days of his appointment) and decided on an urgent sale process, most particularly because it was not

unreasonably anticipated that the value of the title "Buy and Sell" could rapidly decline if the magazine were to be out of publication

for any appreciable period. It would be fair, in that context, to describe much of the assets of Buzreel as being of a wasting nature.

1.3 Be that as it may, the sale process ran into difficulties. A number of bidders emerged. One was Midland itself. A second was the

applicant/appellant ("Demirca"). It also should be recorded that the liquidator received two other bids although those bidders had

ceased to be actively involved when the matter came before the courts. Ultimately, a dispute emerged between Demirca, Midland and

the liquidator as to which bid, if any, should be accepted. Hogan J., on the 24th April, 2014, took the view that he should make an

order of a type similar to that made in Van Hool McArdle Limited v. Rohan Industrial Estates Limited [1980] I.R. 237 (a "Van Hool order

") which gave both Demirca and Midland a final opportunity to make what were described as unconditional sealed bids.

1.4 Further difficulties, or at a minimum asserted difficulties, emerged in respect of that second bidding round which resulted in the

matter coming again before Hogan J. For the reasons set out in a judgment delivered on the 1st May, 2014 (Buzreel Limited &

Companies Acts [2014] IEHC 225), Hogan J. took the view that Midland's bid on that second round of bidding was both the highest

bid and a valid bid in accordance with the terms of the Van Hool order. In those circumstances Hogan J. directed the liquidator to

complete the sale of the assets of Buzreel to Midland in accordance with that bid.

1.5 Demirca appealed to this Court against that judgment and order. The matter came on for hearing on Thursday 5th June. Having

considered the arguments made and having regard to the urgency of a sale being completed, the Court indicated, just before lunch,

that it was persuaded that the proper course of action to adopt, in all the circumstances, was to permit both parties one final

opportunity to bid. Having consulted with counsel it was agreed to put the matter back until 2.00 pm to enable both parties to

ascertain the minimum timeframe within which they would be able to make a bid supported by adequate evidence of the availability of

funds. In the light of what was then said the Court fixed 4.00 pm as the latest time when such bids should be made. When the Court

sat again at 4.00 pm counsel for the liquidator arranged for the two bids to be handed into court and indicated that the liquidator was

satisfied that, in both cases, satisfactory evidence of the availability of funds had been provided. Given that the bid from Demirca

was of a significantly higher value than the bid from Midland, the Court directed the liquidator to accept the Demirca bid. The Court

also indicated that reasons would be given, in due course, for the Court reaching the conclusions which it did. The purpose of this

judgment is to set out the reasons why I supported the course of action which the Court took. In order to properly understand the

precise issues which arose, it is necessary to start by considering in a little more detail the precise sequence of events which led to

the order of Hogan J. I, therefore, turn to those facts.

2. The Facts

2.1 The facts are fully set out in the judgment of Hogan J. For present purposes it is, therefore, only necessary to give a brief outline

of the relevant facts. In the initial advertisement for public auction, the liquidator required prospective bidders to make final offers on

the 10th April, 2014 and also made reference to the availability of an information memorandum for prospective bidders. Those

documents made clear that offers were to be “supported by documentary evidence of funding to the satisfaction” of the liquidator.

Of four offers received, Midland made the highest bid at €303,000 and was informed on the evening of the 10th April that it was the

preferred bidder. The liquidator also informed Midland at that point that he intended to complete the sale on the following day,

subject to court approval (which approval had been specified as a requirement in the information memorandum). It then became clear

that Midland’s funding was not available for somewhere between three to four weeks, as such funding was contingent on the early

encashment of various investments held by the directors of Midland with Ulster Bank. The liquidator withdrew Midland’s status as the

preferred bidder stating that it had been made clear to all bidders that the sale would have to be completed more or less immediately

after court approval.

2.2 The liquidator then applied to the High Court by motion dated 15th April, 2014 for approval of the sale of the relevant assets to

Demirca, who at that point was the highest bidder in respect of which the liquidator had satisfactory proof of funding. Midland

opposed this sale and stated that it had been expressly confirmed that the liquidator would accept the investment portfolio as proof

of funding. A further issue arose in that the liquidator had disclosed to Demirca the bid placed by Midland. Faced with those

difficulties, Hogan J. decided that the fairest way to proceed was to make a Van Hool order and to give the two parties one final

opportunity to make unconditional sealed bids which were required to be with the liquidator by 5 p.m. on Monday April, 28th. It was a

term of the order that the liquidator was entitled to reject a bid not accompanied by a “bank draft or its equivalent or a letter from a

senior official from a bank of standing confirming that the funds are available for immediate transfer to the Provisional Liquidator on

completion of the contract for sale.” The court also ordered that signed contracts accompany the unconditional sealed bids.

2.3 On Monday April 28th, Demirca submitted an unconditional bid at 4.45 p.m. Midland submitted a bid at 4.59 p.m. offering a sum by

bank draft, plus an additional cash amount to the value of 1% of the draft amount. However, the cash amount was not handed over

until about 5.20 p.m. Further, it was stated in Midland’s bid that: “The offer is also subject to the purchaser acquiring clean title and

all computers and software that that is required for running the business as per your information memorandum.” The liquidator

questioned whether such a clause complied with the High Court's directions as to unconditionality, in response to which Midland

agreed to delete the clause. Midland had made the highest offer and the liquidator then applied, on the 29th April, to the High Court,

for an order under s.231(3) of the Companies Act, 1963 ("the 1963 Act") in respect of that bid.

2.4 As Demirca were not present on the morning of the 29th April, Hogan J. took the view that it was in the interests of procedural

fairness that Demirca be afforded an opportunity to object and on that basis postponed the making of any order until 11 am on

Thursday, 1st May.

2.5 On the 1st May, Demirca argued against the making of an order approving the sale to Midland. Legal argument was heard and

Hogan J. delivered an ex tempore judgment concluding that, as the Van Hool order was intended to be the final step in the process

and that, in his view, Midland’s bid was valid, he would direct that the liquidator accept that bid. However, Hogan J. put the matter in

for 2 p.m. on the following day, the 2nd May, in order to give Demirca an opportunity to consider its position. On the 2nd May,

Demirca indicated an intention to appeal and Hogan J. agreed to extend the stay on the order to 5 p.m. on the 7th May, to facilitate

Demirca in bringing an appeal to this Court. It was in that context that Hogan J. agreed to elaborate on his reasons in a written

judgment. As appears from that written judgment, Hogan J. found that any deviation from the terms of the Van Hool order by Midland

was not material and as such found that the Midland bid was in compliance with the Van Hool order.

2.6 It is also important to record that one further matter of fact, which did not appear to have featured as a material issue before the

High Court, emerged in the course of argument before this Court. As has already been noted, one of the terms of the Van Hool order

made by Hogan J. was to the effect that both parties should, as well as making a bid and supplying appropriate evidence of the

availability of funds, also hand over a signed contract. It does appear from what the Court was told by counsel in the course of

argument during the appeal that, strictly speaking, neither side complied with that requirement. So far as Midland is concerned, it

would appear that no signed contract was proffered although counsel did point out that Midland personnel were present on the

occasion when the bids were opened and were in a position to sign a contract as soon as one was proffered. It further needs to be

noted that the contract as ultimately signed was one which had required some amendment from a draft previously supplied to both

bidders. One of the amendments would appear to have been purely technical in that, in the intervening period, the liquidator had

changed status from a provisional liquidator to an official liquidator and reference to that new status required to be inserted. Second,

and perhaps of greater materiality, the Court was informed that the original draft contract did not include a list of the equipment to

be included in the sale and that such a list was inserted in the document which was ultimately signed by Midland.

2.7 So far as Demirca is concerned, it would appear that Demirca had already proffered a form of signed contract to accompany an

earlier bid which it had made in the course of the hearing which led to the Van Hool order. The Court understands that, on the second

round of bidding, Demirca indicated that it would be bound by that contract. However, it of course needs to be pointed out that the

bid made by Demirca on the second round was for a larger sum of money than that which had originally been included so that, strictly

speaking, there was no signed contract from Demirca in the terms of its revised and increased bid. Likewise, although Demirca can

hardly be blamed for this, the contract which it had earlier signed did not have, for obvious reasons, the amendments to which I have

just referred.

2.8 Against the background of those facts it is next necessary to turn to the reasons why the trial judge took the view that he

should direct the liquidator to accept the Midland bid.

3. The Trial Judge's Reasons

3.1 In his decision, Hogan J. concluded that the outcome of the application under s.231(3) of the 1963 Act was contingent on

whether Midland had made a “valid bid in accordance with the terms of the Van Hool order,” given the fact it was the highest bidder.

Two issues arose in relation to compliance with the order; first, the fact that the cash amount was not handed over until twenty

minutes after the time specified in the order, and second, whether the bid was in fact unconditional by virtue of the inclusion of the

sentence already referred to concerning title and equipment.

3.2 With regard to the argument concerning the late cash payment, Hogan J. noted that the draft amount put forward by Midland

exceeded the bid of Demirca, in and of itself, and in any event also concluded that immediate payment on or before 5 p.m. was not

absolutely necessary given that a letter from a bank of standing was specified as being sufficient. Thus, he concluded there could be

said to be a high degree of compliance with the Van Hool order in that respect.

3.3 In relation to the argument that the bid was not unconditional, Hogan J. held that the Van Hool order did not require the bid to be

unconditional in the literal sense. Proof of clean title was, in his view, a standard requirement, and the stipulation that all computers

and software were to be acquired was found to be “no more than a statement of the obvious” given that such items were included in

the information memorandum. Hogan J., therefore, held that the words did not convey equivocation and, as they were subsequently

deleted, he found that no real prejudice was caused to Demirca.

3.4 Against that background it is necessary to set out the position of the parties on the appeal.

4. The Appeal

4.1 It is fair to say that one significant issue of legal principle emerged in the course of the argument between the parties. Counsel

for Demirca and counsel for the liquidator both urged that the overriding factor in any consideration by the Court of a question

concerning the approval or otherwise by the Court of a sale of assets by a liquidator was the need to secure the greatest possible

money for distribution to the creditors. Counsel for Midland, while acknowledging the importance of securing the best price for the

benefit of the creditors, also emphasised the importance of the Court upholding any process which the Court had put in place. On

that basis it was said that Hogan J. was correct to analyse the situation solely by reference to the question of whether Midland's bid

had been compliant for, it was argued, if Midland had submitted a compliant bid which was in accordance with the process specified

by the Court, then Hogan J. was correct to direct the liquidator to accept that bid given that it was, on the facts, the highest bid.

Counsel for Demirca went so far as to suggest that, even if the Midland bid was compliant, the Court should still be prepared to

entertain the possibility of a further bid if it was sufficiently above the Midland bid to confer a real further benefit on the creditors. It

will be necessary in early course, therefore, to turn to the question of the proper approach of the Court in a case such as this.

4.2 To the extent that the Court might not be persuaded to depart from the overall reasoning at the level of principle adopted in the

High Court, counsel for Demirca suggested that the trial judge was wrong to conclude, on the facts, that the Midland bid was

compliant. It was said that the bid was demonstrably conditional and that some of the cash element of the funds had not been made

available within the specified time. In addition, counsel argued that the process had failed to comply with the terms of the Van Hool

order which required the bids to be sealed. Counsel adopted that position by virtue of the fact, which was undisputed, that

discussions were carried on, after the closing time for receipt of bids, between the liquidator and his representatives and Midland and

its representatives which ultimately led to the withdrawal of the clause said to make the bid conditional. Counsel argued that

permitting any discussion as to the terms of a bid after the time for making the bid had expired amounted to a breach of the

obligation that the bid be sealed. Even if, therefore, the Court was not persuaded that a general jurisdiction to act in the best

interests of the creditors was the overriding consideration, counsel for Demirca argued that the Midland bid had not been compliant.

4.3 In that latter context it is, however, of significant importance to note that counsel did not thereby urge that the Court should

treat the lower Demirca bid as being the only compliant bid and, thus, the victorious one. Rather, counsel argued that the proper

course of action for the Court to adopt in the complex situation which had arisen was to permit a further round of bidding.

4.4 Broadly speaking, counsel for the liquidator supported the position adopted by counsel for Demirca. In addition, counsel urged that

it was possible that the extent to which Demirca might be willing to offer more money than the bid which the High Court had directed

be accepted was a material factor for, it was argued, the extent to which the creditors might benefit by a reopening of the matter as

a whole was a factor which should properly be taken into account. In that context it should be noted that the Court was not aware

of the amount of the higher bid which had been tendered on behalf of Demirca on the occasion of the second hearing before the High

Court. It should be noted that, on the occasion of the hearing of a motion seeking a stay which ultimately led to a greatly expedited

hearing of this appeal, counsel for Demirca gave an undertaking to the effect that that bid would be kept on the table until the appeal

had been concluded. Before going on to consider the issues, it should also be noted in passing that, as a condition of a stay being

imposed for the brief period anticipated as being likely to last between the hearing of the stay motion and the hearing of the

substantive appeal, Demirca was required to give an undertaking analogous to the type of undertaking as to damages given on the

occasion of an application for an interlocutory injunction. Against that background it is appropriate to turn first to the legal issue as

to the proper approach which I have already identified.

5 The Proper Approach

5.1 Counsel referred to a number of authorities on the question of the proper approach of the Court. The earliest such case is In Re

Hibernian Transport Companies Limited [1972] 1 I.R. 190. The judgment of this Court was delivered by Walsh J. upholding the High

Court decision of Kenny J. to permit a liquidator to complete a contract which had already been approved by the Court. The

background facts are that, following an unsuccessful public auction (where no bids were made), an offer was made by United

Dominions in the sum of £65,000, which was £5,000 less than the auction reserve price. Court approval for that bid was sought and

obtained by the liquidator on the 7th October. An issue then arose in that, on the 11th October, another offer, in the sum of

£101,000, was sought to be put forward by a different party. While United Dominions had specified that their offer was “subject to

contract”, Walsh J. held that:-

“in the ordinary course of events an agreement for the sale or purchase of land subject to contract means nothing

more than an agreement to enter into a contract for the sale of land and, as such, it is not enforceable as if it were a

contract. In the present case whether or not, as the matter stood on the 11th October, the agreement between the

parties could have been enforced, there can be no doubt about the fact that the High Court had agreed to the sale and

United Dominions had committed themselves to purchasing.”

In his reasoning he recited the non-contentious principle that:

“It is the purpose of liquidation proceedings to realise the assets for as much as it is possible to obtain as this inures for

the benefit of creditors, and all other parties who are interested in the assets.”

But went on to note:

“In the present case the offer of £101,000 was a very considerable increase on the price offered by United Dominions,

and if all other things were equal then there should be no doubt but that the larger sum should be accepted. However,

all other things were not equal and, even if one assumes that the documents and letters which passed between United

Dominions and the liquidator would not constitute a sufficient memorandum or note in writing to comply with the

provisions of the Statute of Frauds, 1695, the fact remains that it had been communicated to United Dominions (with

the approval of the judge) that their offer would be accepted. While the official liquidator did not sign the contract until

after the contract had been seen by the judge on the afternoon of Monday the 11th October, 1971, the position had

only got to that stage because the liquidator had already agreed to it with the prior approval and knowledge of the High

Court. The transaction was being controlled by that court so that the situation was that, having agreed to a certain

bargain, the High Court was faced with the choice of going on with it or repudiating it for the sake of a better one”.

The Court, therefore, had approved an offer which had been accepted by the liquidator. The sale process itself had not, however,

been court imposed or approved. The proposal was brought forward by the liquidator for approval by the Court in circumstances

where such approval was requested by the private party. The court found that an arrangement had been entered into with court

approval and that it was not unreasonable at that stage of the process to refuse a higher offer, while noting it was “regrettable that

the higher offer was not made in time.”

5.2 Next it is necessary to consider the judgment, from which the notion of a Van Hool order derives, in Van Hool McArdle Limited v.

Rohan Industrial Estates Limited [1980] 1 I.R. 237. In Van Hool, O'Higgins C.J. noted that the liquidator concerned could have

exercised his power to proceed to sale by private treaty independent of the Court but that “different considerations apply where the

liquidator decides not to exercise this power and not to act independently of the court.” Kenny J. specifically distinguished the case

from Hibernian Transport, stating that in that case the court had already sanctioned the sale and “had to keep faith with the

purchaser”, whereas, in Van Hool , the High Court had not given its consent to the sale at the point in time when the higher bid came

in. Kenny J. re-stated the principle that “[t]he primary duty of the court and of the liquidator in a court winding up is to get the

maximum price for the assets.”

5.3 Thus, in Van Hool, this Court held that the High Court had erred in proceeding with one offer where a higher bid was available

before any court order was made. In fact, Kenny J. noted that “[a] system under which a bid of £730,000 is accepted when one of

£850,000 has been made would bring the court into well-deserved ridicule.” The solution devised was to open up the bidding process

to the two parties for fresh offers. This is the origin of what is known as a “Van Hool order”.

5.4 There might, on one view, be said to be something of a tension between the decisions of this Court in Hibernian Transport, on the

one hand, and Van Hool, on the other. Van Hool emphasises the importance of obtaining the maximum funds for the benefit of the

creditors. Emphasis is placed on the fact that the court process would be rightly criticised if the Court were to require that a sale of

assets be completed at a lower price than one which had become available. On the other hand, Hibernian Transport emphasises the

necessity for the Court to keep faith with its own earlier order even if, strictly speaking, it might not necessarily be the case that a

binding contract had been entered into. Clearly if the liquidator in Hibernian Transport had already entered into a binding contract for

the sale of the assets in question in that case then no question of the matter being reopened could have arisen.

5.5 As a result of the hearing on this appeal, I came to the view that there is, in reality, a consistent overall approach between

Hibernian Transport and Van Hool. There are two important principles involved. A court is required to take all reasonable steps,

whenever issues arising in liquidations come before it, to maximise the return to creditors. But in so doing a court is required to keep

faith with its own process and with any earlier orders which it has made. Just as it would bring the court process into disrepute if a

court were to turn down a significantly higher offer, so also would it bring the court process into disrepute if the Court were to go

back on a completed process which the Court had previously ordered or approved.

5.6 It is important to emphasise the comments made by O'Higgins C.J. in Van Hool. As he pointed out, the offer which the liquidator

proposed that the Court might direct be accepted had not been the subject of any court order and did not arise from a court directed

process. It could not be assumed that an application to the Court (if that was the course of action which the liquidator chose) would

simply involve the Court in rubber-stamping the views of the liquidator. There would be little point in an application to the Court if the

Court did not have a function. Thus the Court was required to make an independent judgment as to whether to approve the bid being

put forward and, in the light of the fact that a significantly better bid was then available, the Court took the view that it should not

approve the bid put forward by the liquidator.

5.7 But it seemed to me that different considerations would have applied in Van Hool had the process which had led to the bid in

question coming before the Court been itself the subject of court approval or direction. In such circumstances the Court's duty to

"keep faith" with its own process would loom as a very significant factor. Thus, it seemed to me that the overall position was that a

court should, as in Van Hool, take whatever measures are best designed to secure the largest amount of money for the liquidation

save that, to the extent that any aspect of the process leading up to the application for the Court's approval had itself been the

subject of court approval or direction, the Court should lean very heavily in favour of keeping faith with that process and its results.

5.8 In relation to that latter consideration it seemed to me that it would require very exceptional circumstances for the Court to

countenance a deviation from the consequences of a process which the Court itself had approved or specified. However, in saying

that it also seemed to me that careful consideration must always be given to the precise terms of the process which the Court has

either approved or specified to determine whether it can properly be said that such a process had brought about true finality so that

a court, in permitting a further bid to be made, might be taken to be deviating from a process which it itself had either approved or

specified.

5.9 If the Court has approved or specified a process which is, in its terms, clearly designed to lead to finality and assuming that the

process has progressed in accordance with the Court's order, then it seems to me that the situation is analogous to that which

occurred in Hibernian Transport and the Court should not reopen the process even if it would appear that a higher bid might be

available. Where, however, either the Court has not mandated any particular process at all or where there are sufficient factors which

can lead to a proper conclusion that a court mandated process can not, in accordance with its own terms and having regard to the

facts, be properly said to have led to finality, then the Court should take whatever action is required which is designed to maximise

the return to the creditors. In those circumstances I was not satisfied that the submissions made on behalf of either the liquidator or

Demirca, on this point of principle, were correct. The mere fact that Demirca might be willing to offer more would not, in itself, be a

sufficient basis for the Court refusing to sanction a sale which derived from an unimpeachable result at the end of a court mandated

process designed, on its own terms, to bring finality. For those reasons I am satisfied that the trial judge was correct, at least in

general terms, in the approach which he adopted. The real question which properly had to be addressed by the trial judge (and which

has to be addressed by this Court on appeal) is as to whether the bid by Midland on the second round can properly be characterised

as resulting from unimpeachable compliance with a court mandated process designed to lead to finality. If it was, then the Court was

required to approve that bid. If it was not, then the Court was required to consider what action to take in the best interests of the

creditors. I, therefore, turn to the issue of whether the process was unimpeachable.

6 Was the Process Unimpeachable?

6.1 As stated earlier two issues of compliance were considered by the trial judge. A third issue arose at the hearing before this Court.

The issues have already been noted. A small amount of the purchase price proposed by Midland in their bid was to be presented in

cash. It was not, of course, that bids were required to be supported either by draft or cash for appropriate evidence from a reputable

bank of the immediate availability of funds would have sufficed. However, no such evidence was tendered by Midland on the facts of

this case. The evidence of the availability of funds put forward by Midland was in the form of a draft and cash. There is no doubt that

the absence of the cash sum does mean that the bid was technically deficient in that, at the time by which all bids had to be

submitted in accordance with the Van Hool order, there was no evidence that the, admittedly small, portion of the Midland bid which

was to be supported by cash had funding available.

6.2 In assessing the weight to be attached to such technical deficiency it is relevant to consider the point made by the trial judge to

the effect that, even without the cash element, Midland's bid was still for a sum higher than that contained in Demirca's bid. On the

other hand, one of the sensible stipulations in the Van Hool order was that there be a signed contract. What sum should such signed

contract specify? It seems clear that each party, if they were to be strictly speaking compliant, should have made available to the

liquidator a contract which would be signed by them and, thus, provided that their bid was the highest, could create immediately

binding legal obligations simply by the liquidator also signing the contract in question (with the Court's approval it required). The

difference, although admittedly small, between the amount of money for which adequate evidence of availability had been provided

prior to the bids closing and the bid itself is of somewhat greater materiality when seen in that context.

6.3 So far as the "condition" set out in Midland's bid is concerned, it seems to me that somewhat like considerations apply. The draft

contract, as signed by Midland, did not include a list of equipment and the like. Strictly speaking, in accordance with the Van Hool

order, there should have been a contract signed by both parties which was complete in all respects and which could form, without

amendment, the contract to be approved by the Court. The absence of such a signed contract created, in my view, a greater

difficulty in the context of the specification in the Midland bid concerning clear title and equipment and software. If those matters

were fully dealt with in a contract which Midland had signed prior to handing in their bid, then it might well be possible to conclude

that the stipulation in the bid did no more than confirm matters which were already in the contract in the first place. However, the

absence of a pre-signed contract in full form makes that stipulation potentially more significant.

6.4 In addition, it must reasonably be asked as to what the intention of Midland was in seeking to include the stipulation in question.

Apart altogether from the process in this case, if a party were to include such a condition in a bid in any process and if a dispute

were to arise as to the proper interpretation of any contract resulting from the process concerned, then doubtless argument would be

put forward that the relevant sentence must mean something, for if it was not intended to alter that which would otherwise be the

legal position why then, it would be argued, was it included in the first place? The relevant sentence is, therefore, in my view, of

somewhat greater materiality than the trial judge found particularly when viewed in the context of the fact that the signed contracts,

which the trial judge had required in the Van Hool order, were not present or at least present in proper form.

6.5 Finally, it seemed to me to be necessary to assess the extent to which the Van Hool order itself necessarily contemplated a final

process in which the Court would, in reality, have no further function other than the formality of approving the highest compliant bid.

As indicated earlier, it seemed to me that the underlying principle is that a court is required to keep faith with a process which is, in

its terms, one designed to lead to absolute finality and where the process specified or approved by the Court is carried out in an

unimpeachable way. In that context it is necessary to look at the order itself.

7 The Van Hool Order

7.1 The relevant provisions of the order made by Hogan J. on the 24th April are:

“1. Demirca and Midland Web Printing be each at liberty to provide sealed unconditional bids together with signed

contracts to the Provisional Liquidator, Mr. Neil Hughes, by 5.00p.m. on Monday 28th April 2014.

2. the Provisional Liquidator is entitled to accept the highest bid tendered which is cash backed and for the

avoidance of doubt the Provisional Liquidator is entitled to reject a bid not accompanied by a bank draft or its

equivalent or a letter from a senior official from a bank of standing confirming that the funds are available for

immediate transfer to the Provisional Liquidator on completion of the contract for sale.

3. that the matter stands adjourned to this Court for final approval

4. the motion herein stands adjourned to this Court on Tuesday 29th day of April 2014 at 10.45 a.m.

Liberty to apply to the duty judge”

7.2 I should start by noting that the trial judge indicated, in the course of his judgment, that his intention in making the Van Hool

order was that the process specified in that order should lead to absolute finality. However, it does appear from the order actually

made, that the form of order is not expressed in terms which go quite that far.

7.3 For example, the use of the phrase “the Provisional Liquidator is entitled to accept” does not necessarily lead to the conclusion

that the Provisional Liquidator should or must accept the highest bid tendered in compliance with the order. Further, finality is not

conveyed in the fact that it is stated that the liquidator is “entitled to reject a bid” not accompanied by evidence that the funds are

available for immediate transfer, but does not state that the liquidator must reject such a bid and, indeed, as a consequence, accept

the other. The Court retained the right of “final approval”, which also tends to negate any intention of absolute finality.

7.4 While there can be no doubt but that the Van Hool order was designed to seek to bring about very early finality to the bidding

process, it nonetheless remains the case that the order, as actually made, does not quite go so far as to rule out any potential future

involvement of the Court other than the mere formality of approving the sale by the liquidator to the highest compliant bidder.

7.5 Against that background it was next necessary to consider the consequences of the conclusions already addressed.

8 The Consequences

8.1 In the light of those conclusions, in my view, this Court was faced with the following situation. First, a Van Hool order had been

made which, while quite specific in its terms, is not couched in language which conveys that absolute and automatic finality to the

bidding process is to occur to such an extent that the Court would, necessarily and in all circumstances, be breaking faith with that

process by not confirming the highest compliant bid.

8.2 Second, the Midland bid was, while very close to totally compliant, deficient in a number of ways which cumulatively (and, in

particular, taking into account the absence of a proper signed contract) created a situation where it was not possible to conclude

that the process directed by the Court had been completed in an unimpeachable way.

8.3 Third, having regard to the fact that Demirca had not, itself, provided an appropriate signed contract to reflect its own new bid

and also that the signed contract on the Demirca side suffered from some of the same infirmities which have been identified in respect

of Midland, the process was not unimpeachable on the Demirca side either. In the light of that factor taken together with the other

factors and the fact that Demirca did not seek to argue that its earlier bid should be regarded as the only compliant bid and, thus,

accepted, I came to the view that the Court should reopen the process in the manner identified earlier in this judgment.

9 Conclusions

9.1 For the reasons set out earlier in this judgment I was satisfied that the overall principle to be applied in cases of conflict between

potential bidders in a liquidation process in which the Court has an involvement is that the Court should strive to obtain the highest

price for any assets for the benefit of the creditors save that, where the Court has approved or directed that a process be put in

place which is, in its terms, designed to bring about absolute finality without any other involvement on the part of the Court (with the

exception of formal involvement) and where that process is brought to finality in an unimpeachable way, the Court should keep faith

with that process.

9.2 For the reasons which I have also addressed, I was not ultimately satisfied that either the process directed, having regard to the

terms of the Van Hool order, or compliance with that process, was sufficiently final and unimpeachable so as to require the Court, in

keeping faith with that process, to regard the result of that process as binding.

9.3 For those reasons, I was satisfied that, in the circumstances of this case, the appropriate course of action to adopt, in fairness

to all of the parties and having regard to all of the circumstances leading to the matter being before this Court, was to permit one

further round of bidding.