The High Court has granted Mary Murphy retrospective leave to pursue personal injury proceedings against MJBCH Ltd, which was already in court-ordered liquidation when she began the case.
In a judgment delivered on 15 April 2013, Ms Justice Finlay Geoghegan ruled that section 222 of the Companies Act 1963 gives the court jurisdiction to consider granting leave after proceedings have started. The section requires court leave for proceedings against a company after a winding-up order, but does not expressly say that proceedings begun without leave are nullities or bar the court from granting leave later.
The judge said leave should normally be sought before proceedings begin. Where it was not, the court should assess the application as it would have if leave had been sought in advance, and a plaintiff should gain no advantage from failing to comply at the proper time.
Ms Murphy’s claim arose from an accident on 20 February 2010 at the D4 Hotels Complex in Ballsbridge, Dublin 4. Her solicitors had been informed that MJBCH Ltd occupied the premises and held an insurance policy. She received authorisation from the Personal Injuries Assessment Board in June 2011 to bring proceedings against the company.
The company was wound up by court order on 25 June 2012, with Declan Taite appointed official liquidator. Ms Murphy began plenary proceedings on 10 August 2012 against four defendants, including MJBCH Ltd, without knowing about the winding-up order. After the proceedings were served, the official liquidator told her solicitor that he did not intend to defend them and would take a neutral position on the leave application.
Ms Murphy said she wanted to continue the claim to protect her position under section 62 of the Civil Liability Act 1961, in light of other defendants’ position concerning section 35(1)(i) of that Act. The liquidator indicated that the company had no funds to meet a claim. The judge found no prejudice to the winding-up from granting leave and concluded Ms Murphy would have been entitled to leave had she applied before starting proceedings.
The court therefore granted leave retrospectively for the commencement of the identified plenary proceedings. The judgment did not determine the merits of the personal injury claim.