The Supreme Court has proposed orders requiring eight corporate appellants to provide security for the costs of two respondents in a group of lengthy appeals arising from disputes with First Active plc. The court said it would hear the parties on the remaining terms, including the amount and deadline for security.
In a judgment delivered by Macken J on 23 February 2012, the court considered two motions brought by First Active and Ray Jackson under Order 58, Rule 17 of the Rules of the Superior Courts and the court’s inherent jurisdiction. The applications sought security for appeal costs and a stay on further prosecution of the appeals until security was provided. The applications related to seven appeals, including the main appeal, No. 250/2010.
The underlying proceedings concerned loans and property development involving companies described as the Cunningham Group. The High Court had dismissed the companies’ claims, including the main action after finding their evidence did not disclose a prima facie case. It also entered counterclaim judgments for First Active against four companies, ranging from about €59.6 million to €61.1 million. Those were earlier High Court outcomes, not the subject of the Supreme Court’s orders on these motions.
The appellants argued that their appeals were genuine and raised important legal questions, and that security could prevent them from pursuing the appeals. Brian Cunningham also said the group’s financial difficulties were caused by the respondents. The Supreme Court noted the concern that security could stifle an appeal, but said that possibility did not by itself determine the applications.
Macken J said the court should not conduct a detailed assessment of the appeals’ merits at this preliminary stage. After considering the principal grounds advanced, however, the judgment found no clear arguable grounds had been established. It also found the appellants were insolvent or impecunious, the respondents would otherwise be unlikely to recover their appeal costs if successful, and the appeals were likely to be lengthy. The court said the issues did not raise points of exceptional public importance that justified refusing security.
The court proposed making orders in the terms of the motions and said it would hear the parties on ancillary orders. The judgment therefore records the basis for granting security and the proposed orders; it does not specify the amount of security or the time allowed to provide it.