The High Court has dismissed Gayle Dunne’s motion to strike out or dismiss proceedings brought by Christopher Lehane, the Official Assignee in Sean Dunne’s bankruptcy. The motion argued that the case should not proceed in Ireland on grounds of forum non conveniens or abuse of process.
Mr Justice McGovern delivered the judgment on 3 October 2018. It addressed the substantive motion after the court had determined issues of US law and the Court of Appeal had allowed cross-examination of US bankruptcy lawyers on their affidavit evidence. The court’s decision was limited to the defendant’s application; it did not determine the underlying claims concerning alleged fraudulent transfers.
The judge noted that the defendant relied on concerns about parallel bankruptcy proceedings in Ireland and the United States. A Chapter 7 trustee had discontinued similar “Mavior” fraudulent-transfer proceedings in the US. The defendant argued those claims could be reactivated there. The court had previously accepted evidence that reactivation would be extremely difficult and held that its decision in the Irish proceedings would bind the trustee against relitigating the matter in US courts.
The court also recorded that the US court had granted relief from the automatic stay, nunc pro tunc, allowing the Official Assignee to maintain the Irish proceedings, and that this was affirmed on appeal. The judgment said the Official Assignee had standing to bring the case and was not acting contrary to US law. Although no formal cooperation protocol had been agreed between the Irish Official Assignee and the US trustee, the judge found that cooperation existed.
The court considered the connections to Ireland: Irish law applied, the assets at issue were Irish assets apart from a South African hotel held through an Irish company, and the transactions included an Irish share transfer and assignments of loans payable by Irish companies. The judgment said the transactions had no connection with the United States and noted that the US courts had recognised Ireland as the appropriate forum.
Applying the forum non conveniens principles cited from *IBRC v Quinn*, the judge concluded that the defendant had not shown that the US was a clearly more appropriate forum or established abuse of process. He acknowledged the Court of Appeal’s concern that claims should, if possible, be centralised in one jurisdiction, but concluded that Ireland was the appropriate forum in the circumstances. The motion was dismissed; the underlying proceedings were allowed to continue in Ireland.