The High Court has refused an application by Ciaran Fitzgerald, Cormac Fitzgerald and Fitzgerald and Partners to set aside service of a summons in proceedings brought by First Named Trust Company (Ireland) Limited and Pyramus Capital Partners Limited. The court found the summons had been personally served on the three defendants in December 2016, before the protective certificates at issue were issued.
The plaintiffs’ claim concerns alleged liabilities of €3.1 million against the first and second defendants. Their 2015 proceedings seek, among other relief, indemnification or damages relating to investment agreements, and damages for alleged misrepresentation, breach of contract, breach of duty and breach of fiduciary duty.
The defendants sought declarations that later service by post was invalid because the summons had expired, or orders setting aside that service and earlier orders renewing the summons and allowing substituted service. The court said those later orders were not relevant because it was satisfied the first, second and fourth defendants had already been served personally on 19 December 2016, while the summons was current.
A summons server’s affidavit described serving Cormac Fitzgerald and Fitzgerald and Partners at 9 Pearse Street, Kinsale, and Ciaran Fitzgerald and Blue Haven Food Company Limited at 3 Pearse Street that day. Ciaran Fitzgerald disputed that account, saying he and Cormac had told the server they could not accept service because protective certificates had issued. The judge accepted the summons server’s account. The judgment noted that the defendants had not sought to cross-examine him or the plaintiffs’ solicitor on their affidavits.
The dispute also concerned whether the certificates, issued in December 2016 for Ciaran and Cormac Fitzgerald, prevented service under the Personal Insolvency Act 2012. The court found the plaintiffs had not been given notice of the certificates, and that the plaintiffs’ claims were not listed among the specified debts. It accepted the insolvency practitioner’s evidence that he had not been told of the claim when the certificates were sought.
The judge found the Fitzgeralds had not disclosed the proceedings to their insolvency practitioner and had failed to make full and honest disclosure. The court concluded that the statutory protection did not cover service of the proceedings in this case. It refused all relief sought in the defendants’ notice of motion. The judgment did not determine the underlying claims for damages or liability.