Judgment: 2017-07-31 · Court archive

Court of Appeal allows additional evidence in Star Elm Frames liquidation appeal

The court allowed the Revenue Commissioners to rely on an email exchange in Anthony Fitzpatrick’s appeal, leaving its meaning and the appeal itself for later determination.

Court of Appeal · [2017] IECA 227

Who, what, where, when and why

Who
  • Anthony Fitzpatrick (Appellant)
  • Michael Gladney (Respondent)
  • Star Elm Frames
  • Revenue Commissioners
  • Myles Kirby
  • Robert McKay
  • Humphreys J.
  • The President
What

The court allowed the Revenue Commissioners to rely on an email exchange in Anthony Fitzpatrick’s appeal, leaving its meaning and the appeal itself for later determination.

Where

No place detail is included in this summary.

When

Judgment:

Other dates in the report
  • 10 August 2016

    The application was brought by Michael Gladney, the Collector General and a Revenue Commissioners officer, who is a creditor of Star Elm Frames. The appeal concerns High Court orders made by Humphreys J. on 10 August 2016. Those orders wound up the company under the Companies Act 2014, appointed Myles Kirby as liquidator in place of Fitzpatrick, who had been appointed voluntary liquidator, and required company records to be delivered to Kirby. They also required two directors and an employee to file a statement of affairs, and addressed the parties’ costs.

  • 2 August 2016

    The proposed additional evidence comprises emails between Fitzpatrick and Robert McKay, along with affidavits from Kirby and McKay. In an email dated 2 August 2016, Fitzpatrick sent McKay a draft letter about the company’s assets and asked him to sign and return it. The draft letter discussed the likely disposal value of stock and plant and equipment. McKay declined to send it, saying he could not advise without inspecting the assets.

Why

Reasons reported in the judgment

Applying the test set out in *Murphy v Minister for Defence*, the Court of Appeal held that the evidence could not have been obtained with reasonable diligence before the High Court hearing, was apparently credible, and could probably have an important influence on the appeal. The court said the dispute about the emails’ meaning did not prevent their admission. It expressly left their interpretation, and any conflict between the parties’ accounts, to be decided when the appeal is heard.

The Court of Appeal has allowed the Revenue Commissioners to introduce an email exchange as additional evidence in Anthony Fitzpatrick’s appeal over the winding up of Star Elm Frames Ltd. The ruling decides only whether the material may be considered on appeal; it does not resolve what the emails meant or whether the High Court was right to order the company’s winding up under court supervision.

The application was brought by Michael Gladney, the Collector General and a Revenue Commissioners officer, who is a creditor of Star Elm Frames. The appeal concerns High Court orders made by Humphreys J. on 10 August 2016. Those orders wound up the company under the Companies Act 2014, appointed Myles Kirby as liquidator in place of Fitzpatrick, who had been appointed voluntary liquidator, and required company records to be delivered to Kirby. They also required two directors and an employee to file a statement of affairs, and addressed the parties’ costs.

The proposed additional evidence comprises emails between Fitzpatrick and Robert McKay, along with affidavits from Kirby and McKay. In an email dated 2 August 2016, Fitzpatrick sent McKay a draft letter about the company’s assets and asked him to sign and return it. The draft letter discussed the likely disposal value of stock and plant and equipment. McKay declined to send it, saying he could not advise without inspecting the assets.

A Revenue affidavit said the emails were not among the company records Fitzpatrick provided to Kirby and were later disclosed by McKay. The affidavit alleged that Fitzpatrick had taken steps to undermine the company’s asset value to the detriment of creditors. Fitzpatrick disputed that interpretation, saying the draft was an aide-memoire for his own use and offering an innocent explanation. He also argued that the evidence was irrelevant or hearsay and that the legal test for admitting new evidence had not been met.

Applying the test set out in *Murphy v Minister for Defence*, the Court of Appeal held that the evidence could not have been obtained with reasonable diligence before the High Court hearing, was apparently credible, and could probably have an important influence on the appeal. The court said the dispute about the emails’ meaning did not prevent their admission. It expressly left their interpretation, and any conflict between the parties’ accounts, to be decided when the appeal is heard.

The President therefore allowed the application to adduce the additional evidence. The judgment was delivered on 31 July 2017.

Read the original court judgment

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