The High Court has ruled that the Circuit Court can order examination of company directors and discovery of relevant documents to help enforce an unpaid monetary judgment. Mr Justice Garrett Simons set aside a Circuit Court order that had refused two such applications because of delay, and substituted orders granting the plaintiffs’ requested discovery and allowing them to pursue examination of the directors before the Circuit Court.
The appeals arose from two defamation actions brought by Patrick O’Connor and Tanya Shannon against Lackabeg Ltd, trading as The Arc Bar & Restaurant. The company did not defend the actions. On 8 March 2018, the Circuit Court awarded each plaintiff €10,000 in damages, plus legal costs. The costs were later measured at €24,793.37 and €16,011.99 respectively. The judgments remained unpaid.
The plaintiffs applied for the company’s directors, Frank Towey and Kieran Towey, to attend for oral examination and make discovery in aid of execution. The directors, who were not parties to the defamation actions, argued that the Circuit Court Rules did not permit examination or discovery to enforce a monetary judgment. The Circuit Court rejected that jurisdictional argument but refused the applications on delay grounds. The plaintiffs appealed.
Simons held that Order 67, rule 16 of the Circuit Court Rules allows the Circuit Court to use the High Court Rules where its own rules do not govern a procedure. Because the Circuit Court Rules contain no provision for examination and discovery to enforce a monetary judgment, the High Court procedure can supplement them. The judge said this does not conflict with the Circuit Court Rules or subtract from powers conferred on that court by statute. He rejected an earlier Circuit Court interpretation that had treated the omission as a deliberate exclusion.
The judge found the threshold for examination and discovery had been met: the judgments were unpaid, the directors had not meaningfully explained the delay in satisfying them, and the plaintiffs’ solicitor had made diligent efforts to secure payment. Affidavit material suggested, on a prima facie basis, that the company might have attempted to put assets beyond the plaintiffs’ reach. The directors chose not to file a replying affidavit after being given the opportunity. That suggestion was not stated as a final finding.
Simons also ruled that delay must be measured from the date of the judgment being enforced, not from the earlier incident giving rise to the defamation actions. He said the Circuit Court erred in law if it had held otherwise.
The judgment set aside the Circuit Court order of 1 February 2023 and substituted orders in terms of paragraphs 1, 2 and 3 of the plaintiffs’ notice of motion. The plaintiffs may pursue the discovery and examination before the Circuit Court. The High Court listed the proceedings for 16 May 2024 to hear submissions on the final form of order, proposed costs against the directors personally, and logistics for the examination. The judgment records those costs as provisional, not final.