The High Court discharged an interim order freezing part of the proceeds from a sale of land at Kilbline, Co Kilkenny, after finding that the purchaser had significantly failed to disclose earlier discussions about retaining money from the sale. It also said that, even if it had considered the merits of a continuing order, the evidence did not establish a real risk that assets would be moved to evade a potential judgment.
Mr Justice Clarke delivered the judgment on 25 February 2005. The dispute arose from a written contract dated 11 June 2004, under which Johanna Cobley agreed to sell land to Michael Bambrick. The sale was completed, but the parties disputed responsibility for delay in closing and whether Bambrick had suffered loss. The court said there were fair issues to be tried on those questions; it did not decide the underlying contract claim.
Before the sale completed, the solicitors had discussed retaining money pending the proceedings. The defendant’s solicitors gave an undertaking to retain €50,000 from the net sale proceeds until close of business on 12 August 2004, or until agreement or a court order provided otherwise. On 11 August, Bambrick obtained an interim order on an ex parte application seeking to restrain Cobley from reducing her assets in the jurisdiction below €100,000 and to place that amount on joint deposit.
At the later hearing, the defendant argued that the interim application had not disclosed the correspondence about the proposed retention and that there was no real risk of assets being dissipated or removed to evade obligations. The judge found the discussions about €50,000 material to the earlier application, including because the court might have made no order or considered a smaller amount had it known about them. He did not find that Bambrick deliberately misled the court, but considered him significantly culpable in the omission, particularly as a solicitor.
The judge also noted criticism of both sides’ conduct: the defendant appeared to have placed barriers in the way of service, while Bambrick had significantly delayed notifying her of the interim order and serving the paperwork. Weighing the circumstances, the court exercised its discretion to discharge the interim order and declined to consider granting a further order.
The judge added an alternative conclusion on the merits. Although there was evidence of an intention to move the remaining net proceeds to the United Kingdom, he was not satisfied that this was with a view to evading obligations. He took into account the defendant’s property in Ireland, the earlier discussion of a €50,000 retention, and the fact that a judgment could be enforced in the UK under the judgments convention. The decision concerned the asset-freezing application; the underlying claim for damages remained unresolved.