The Court of Appeal dismissed Anthony Fitzpatrick’s appeal against a finding that he breached a High Court order by failing to deliver Star Elm Frames Limited’s books and records to its official liquidator by 15 August 2016. It also allowed the official liquidator’s cross-appeal on costs, ordering Fitzpatrick to pay all the costs of the High Court application, to be assessed if the parties could not agree them.
The appeal judgment, delivered by Mr Justice Michael Peart on 30 July 2019, upheld the High Court’s conclusion that the breach had been proved beyond reasonable doubt. The court did not impose a fine. The records were ultimately handed over in Athlone on 5 September 2016, after the High Court judge prompted the parties to agree arrangements. The application to attach and commit Fitzpatrick was then no longer pursued.
The original order was made on 10 August 2016, when the High Court wound up Star Elm Frames and appointed Myles Kirby as official liquidator, replacing Fitzpatrick, who had been the company’s voluntary liquidator. It required Fitzpatrick to present the company’s books, records, accounts and property to Kirby as soon as possible and by close of business on 15 August.
Kirby’s application for enforcement followed the failure to deliver the material by that deadline. Evidence before the High Court included an account from Kirby’s staff member that two people representing Fitzpatrick arrived at the company premises on 15 August without records and said they had removed computers and hard drives earlier that day. Fitzpatrick’s evidence was that the premises had been locked by the landlord, he had removed remaining records to safeguard them, and he was willing to hand them over if Kirby arranged to collect them from his office. His solicitor also wrote proposing delivery in Limerick on 2 September.
The Court of Appeal held that Fitzpatrick knew of the order and what it required. His appeal against the order did not suspend the obligation, and the Court of Appeal had refused a stay. The court said the order placed responsibility on Fitzpatrick to deliver the records; it was not for him to require Kirby to arrange collection. The court upheld the breach finding while leaving the question of personal service of the order with a penal endorsement undecided, because attachment and committal were no longer being pursued.
The High Court had ordered Fitzpatrick to pay 75% of Kirby’s costs, reducing the award because Fitzpatrick had received advice not to comply. The Court of Appeal ruled that the reduction was wrong in liquidation proceedings, where costs ultimately affect creditors, and substituted an order for all the High Court application costs.