The High Court adjourned Ulster Bank Ireland Limited’s application to sequester assets held in Ireland by three notice parties after finding that the discovery order they were said to have breached lacked a required penal endorsement.
Mr Justice Clarke said on 21 January 2009 that Ulster Bank could serve a new copy of the discovery order with the required endorsement. He proposed that the trustees be given seven days to comply. The judge adjourned the application to allow the bank to serve the new order and notify the trustees that it would seek sequestration if they continued not to comply. He said he would hear counsel on the adjournment date.
The application arose within Ulster Bank’s claim for a well charging order over 9 Oakley Park, Clontarf, Dublin City. The bank had obtained a money judgment against Joseph Whitaker in 1997 for IR£45,055.28 and registered it as a judgment mortgage against the property in 1998. Whitaker said he had transferred the property to the Seafield Trust and Charterhouse Trust Company before that registration, leaving him with no interest for the mortgage to attach to. The bank disputed whether the transaction had fully removed his interest. That underlying dispute had been sent to a plenary hearing and was not decided in this judgment.
The trustees, based in the Isle of Man, had been ordered to make discovery on 20 November 2007. The judge said they did not oppose the order when it was made and that their position later was that they would not comply, citing confidentiality obligations to their clients. Their counsel took no part in the sequestration hearing after saying her instructions had been withdrawn. Whitaker opposed the bank’s application.
The judge held that an order requiring a person to act ordinarily needs the endorsement prescribed by Order 41, rule 8 of the Rules of the Superior Courts before it can be enforced through measures such as sequestration. He therefore declined to permit sequestration at that stage. He did not make a final ruling on whether sequestration would be appropriate if the trustees failed to comply with a properly endorsed order.
On that separate issue, the judge said the case had features that could make ordinary procedural remedies inadequate: the bank said the trustees were the only realistic source of documents needed to pursue its case at trial. He said sequestration could be considered where no lesser remedy adequately protected a party’s legitimate interests, but postponed further consideration until a procedurally correct application was before the court.