The Supreme Court has dismissed two appeals by a bankrupt seeking to annul his 1987 adjudication and reopen an application that had already been refused. It also upheld the refusal to set aside an order allowing the Official Assignee to seek assistance from the English bankruptcy court.
In a judgment delivered on 6 March 2006, Mr Justice Fennelly said the challenge to the adjudication could not succeed after the passage of so many years. The Court affirmed the orders made by the High Court in 1999 and 2004.
The bankrupt had been adjudicated on 12 January 1987 after a former client obtained an unsatisfied judgment against him arising from a professional-negligence claim. The bankrupt later argued that the affidavit verifying the bankruptcy petition had not been sworn by the petitioning creditor. For the purposes of the annulment application and appeal, the parties agreed to proceed on that assumption; the Supreme Court did not make a fresh finding that the affidavit was unsworn.
The allegation had been raised in an affidavit in 1988. The judgment records that the bankrupt was represented by Senior Counsel at the hearing that year. He wrote to the Official Assignee in March 1995 referring to the alleged absence of a sworn affidavit, but did not apply to annul the adjudication until 1999. The Supreme Court described the delay as extreme and agreed with the High Court that it was inordinate and inexcusable.
The Court also upheld the High Court’s conclusion that the balance of justice weighed against annulment. The bankruptcy affected creditors beyond the petitioning creditor, and the High Court had considered the risk that other creditors would be unable to pursue claims if the bankruptcy were annulled after more than 12 years. It had also attributed delay in the bankruptcy process and legal costs incurred by the Official Assignee to the bankrupt’s conduct.
The bankrupt separately challenged a 9 November 1995 order permitting the Official Assignee to apply to the High Court of Justice in England and Wales for an order in aid. The Supreme Court upheld the refusal to set that order aside, noting that the bankrupt had participated in proceedings in England for several years without seeking to overturn the Irish order. It said it was unnecessary to decide whether he had been entitled to notice of the original application.
A further appeal concerned the 2004 refusal to re-enter the 1999 matter on the basis of additional evidence explaining the delay. The Supreme Court agreed that the application lacked merit: the evidence was available to the bankrupt when he made his 1999 application and was not included then. The Court dismissed both appeals and affirmed the High Court orders.