The High Court has found that a liquidator authorised two companies in voluntary liquidation to appeal the dismissal of their competition proceedings to the Supreme Court. The ruling resolved a dispute about the authority for that appeal; it did not decide whether the appeal could proceed or determine the underlying competition case.
The companies, Amantiss Enterprises Limited and Wilbury Limited, were plaintiffs in proceedings begun in 1996 alongside Framus Limited. Their case against CRH Plc and other defendants was dismissed by the High Court in July 2012, and the defendants were awarded costs. A notice of appeal was filed in September 2012 in the names of all three plaintiffs.
Seamus Maye, described in the judgment as a creditor of both companies, said the liquidator, Des Donegan, had authorised their participation in the proceedings and their continued prosecution, subject to his right to discontinue them. Donegan disputed that this authority covered an appeal. He said his consent was needed and had not been given.
Justice Laffoy examined the parties’ 1996 arrangement and later events. The liquidator had agreed to the proceedings on the basis that Framus would bear plaintiff-side costs, the case would be conducted through Framus’s solicitors, and the liquidator could discontinue it. The court found that the arrangement had not changed and that the right to discontinue gave the liquidator control over whether the companies remained involved, including during an appeal.
The judge concluded that the authority continued unless the liquidator expressly instructed the solicitors to discontinue the proceedings or appeal. She found that Maye, acting as the agreed intermediary, had authority from the liquidator to authorise the issue and service of the appeal notice for Amantiss and Wilbury. The court also found that Maye had not probably been asked to report back specifically on the High Court’s dismissal before the appeal was filed.
The court declared it appropriate for Donegan to resign as liquidator, recognising that resignation as the correct decision in the circumstances. It said the declaration was limited to that recognition. Creditors must appoint a replacement liquidator under the statutory process. The court offered only provisional guidance on voting: creditors whose costs debts remained unquantified would, prima facie, be unable to vote unless the meeting chairman considered an exception appropriate.
The High Court did not decide how the Supreme Court appeal should proceed or whether it should be reinstated. It said those matters fell to the Supreme Court, and found the other issues before it did not require determination.