The Supreme Court has given creditors of two companies in liquidation a short opportunity to ask the High Court for orders that might allow their appeal to proceed lawfully. It did not decide whether the appeal had been authorised when filed, or whether it could ultimately go ahead.
The dispute arose after the High Court struck out proceedings brought by Framus Limited, Amantiss Enterprises Limited and Wilbury Limited against CRH plc and other defendants for inordinate and inexcusable delay. The companies appealed. Amantiss and Wilbury were in liquidation, and the defendants argued that their appeal was a nullity because the liquidator had not authorised it and opposed its continuation.
The appeal arose from claims alleging anti-competitive activity and abuse of a dominant position in the concrete business, along with claims relating to contractual covenants and alleged conspiracy. Those claims were not determined in the Supreme Court judgment on the motions concerning the appeal’s status.
Justice Clarke said shareholder Seamus Maye and Framus had standing to address whether they had authority to instruct solicitors to file the appeals for Amantiss and Wilbury. But the Court could not resolve that dispute on the applications before it: the liquidator was not a party to the motions, and the issue could require fuller evidence, including oral evidence and cross-examination.
The Court said the liquidator was strongly opposed to continuing the appeal. As matters stood, neither Maye nor Framus had authority or standing to take steps to run it against the liquidator’s wishes. Creditors, however, could ask the High Court to exercise its supervisory jurisdiction over the companies’ liquidations. Their standing in the Supreme Court was limited to seeking an opportunity to pursue that route.
Creditors’ meetings held on 24 January 2013 had passed resolutions supporting continuation of the appeal. The Supreme Court considered that support created a realistic possibility that High Court orders or directions might allow the appeal to proceed. It also criticised the failure to inform the Court and the opposing parties promptly that the liquidator did not want the proceedings to advance, but accepted that creditors had moved with reasonable expedition and that the High Court had waited for the Supreme Court to address the motions.
Justice Clarke concluded that a short, tightly controlled opportunity would cause no significant prejudice to the defendants and that the balance of justice favoured allowing creditors to seek the necessary High Court orders. He agreed with the order proposed by the Chief Justice, which gave parties with standing a short timeframe to take steps to regularise the appeals while preserving the liquidator’s position. The judgment did not itself grant permission for the appeals to proceed.