High Court of Ireland Decisions

1. In this application the Defendants are seeking to vary a Mareva Injunction to allow for payment out of:-

2. In these proceedings the Plaintiff claims some £1.7 million pounds from the Defendants for tax and V.A.T and the Marvea Injunction prohibits the Defendants from reducing their assets below that amount.

3. In fact the amount of assets actually "caught" by the Mareva Injunction is some £450,000. To date approximately £180,000 have already been paid out leaving a balance of some £270,000.

4. Against this background it is a small wonder that in response to this application the Solicitor for the Plaintiff avers:-

5. On the 1st of July, 1999 O'Higgins J. made an Order inter alia

6. At that time the interlocutory proceedings referred to were due for imminent hearing and the Legal Aid Scheme available for such cases was not operating satisfactorily so that the making of this Order was clearly appropriate in the circumstances and, as the transcript of the proceedings makes clear, were taken into account by my learned colleague.

7. The fact that the interlocutory hearing lasted for some 14 or 17 days (there is lack of agreement between the sides on this!) would not have been foreseen when this Order was made but I accept the submission of Counsel for the Defendants that the principle has been established and I am concerned, on this application, merely with its implementation.

8. Subsequently, on the 29th of July, 1999 O'Higgins J. made a further Order directing that the sum of £66,550 for legal fees be paid out to the Defendants. Counsel have explained to me that this sum was arrived at as a figure on account and was not intended to discharge the entire legal expenses incurred in respect of the interlocutory injunction proceedings.

9. In light of the foregoing, I accept that the Court has established as a matter of principle that the legal expenses for the interlocutory injunction are to be paid to the Defendant and therefore it is not necessary for me to decide, in this case, the question whether, and if so in respect of what categories of money, a Court should require an undertaking from the recipient lawyers (and others) to repay these monies if it should transpire subsequently that their client was not entitled to them. It came as no surprise to me to hear from Counsel that this may not be a simple issue: in the present case I do not have to consider it further.

10. I turn now to deal with the four categories of money sought by the Defendants on this application.

11. Once again the principle of this has already been decided by my learned colleague and I respectfully agree with him.

12. However, the history of this litigation shows that the greatest care must be taken not only when the Court is dealing with such an application by these Defendants but also with the overseeing or management of the dispersment itself. I am prepared to accede to the request that the sum of 34,683.95 Dutch Guilders be made available to the Defendants for payment due by Euro Pigeon Feed to Allesterin and that the terms of the Mareva Injunction be varied accordingly subject to the following stipulations:

13. Plaintiff together with a cheque or appropriate instrument drawn

14. The "fee account" document is dated the 15th of July, 1999 but appears not to have emerged in this litigation until the proceedings before me: this notwithstanding the intense litigious activity involved in the Interlocutory Injuction proceedings in July 1999 and a further application in the long vacation to McGuinness J. seeking, inter alia, a payment out in respect of accountant's fees. On that occasion a payment on account was authorised of £5,000 and my learned colleague stipulated I am informed, that appropriate documentation should be submitted for the balance.

15. Apart from the foregoing questionable context, the document itself, comprising all of 13 lines of script could in no sense be described as adequate or satisfactory information to the Court. The description of services rendered is vague in the extreme, for example, there is a reference to "numerous consultations with the client to establish V.A.T liability and income tax liability". One does not know how many consultations, how long they were and what was the hourly rate charged. In regard to attendance at the High Court, again one does not know whether this was for a day or part of a day or for several days or what was the purpose of such attendance.

16. This document is phrased as if the work referred to therein had already been done. The Affidavit now before the Court, however makes it plain that a considerable amount of the work is anticipated in the future.

17. The basis of this part of the application is quite unsatisfactory and I am compelled to refuse it.

18. As already indicated, I am dealing under this heading merely with the application of a decision in principle already made by my learned colleague, O'Higgins J.

19. In support of this element of the application I am furnished with the Defendant's Solicitor's Bill of Costs, a document signed by both Defendants confirming that they agree with the amounts therein and that they waive their right to be independently legally advised. Furthermore, a legal cost accountant has assessed the Solicitor's professional fee "... for all worked done in relation to the application s [plural] concerning the interlocutory hearings/Mareva Injunction..." and a further letter from the same firm of legal costs accountants approving Counsel's fee as reasonable in the circumstance that it had been discussed with the Solicitor who considered it reasonable, that Senior Counsel discussed the matter with his colleagues who indicated that they would also mark a fee at this level "if not more" and that the fee was discussed with and approved of by the client.

20. The Plaintiff accepts the principle that the fee for the "Interlocutory Injunction (singular) proceedings" should be paid but questions whether 17 (or 14) days were fully taken up with this matter, submits that a substantial payment out on account of this matter has already been made and that the balance should be deferred until after the final hearing.

21. Counsel for the Defendants has submitted that I do not have jurisdiction to refer the amount of these legal expenses to a Taxing Master given that there is no dispute between the Defendants and their lawyers and given also that the Order of O'Higgins J. of the 1st of July, 1999 must be interpreted as intending payment of fees on a "Solicitor and client" basis. He did appear to me to concede, however, that I may have inherent jurisdiction to make such a referral. It is clear from the Order of the 1st of July, 1999 that the intention of my learned colleague was that the legal expenses for the Interlocutory Injunction proceedings (and not any other proceedings) should be discharged. The legal costs accountant's letter dealing with the Solicitor's professional fee refers to applications in the plural and specifically includes the Mareva Injunction. This certainly lends plausibility to the Plaintiff's submission that more fees are included in this application than were authorised in the Order of the 1st of July, 1999. Furthermore, there was lack of full agreement as to whether the hearing went on for 17 or 14 days, although I accept that this is a relatively net matter which would not of its own justify sending the whole Bill off to be taxed in default of agreement.

22. There is the further matter as to whether my learned colleague's Order must necessarily authorise legal expenses on a "Solicitor and client" basis which was itself the subject of debate between the parties before me. I do not accept that this is an inevitable reading of the Order of the 1st of July, 1999. That Order left over for later mention the "details" of such payment out but, as was explained to me, the hearing went on for much longer than anticipated and this matter was not formally dealt with subsequently.

23. I acknowledge that the intention of my learned colleague on the occasion in question was to ensure that the Defendants would have appropriate legal representation. The hearing was imminent and the Legal Aid Scheme was in abeyance. In those circumstances it seems to me more proper to interpret the Order of the 1st of July, 1999 as providing for legal expenses on a Solicitor and Client basis and that is the conclusion I now reach.

24. I direct that the Solicitor's Bill of Cost be sent for taxation in default of agreement and that such costs be taxed on a Solicitor and Client basis. When such taxation is complete the amount is to paid out of the assets held by the Plaintiff and the Mareva Injunction varied to that extent.

25. The amount (£300) is relatively minuscule in the context of this case. There is, however, a battle of principle in regard to it. The Defendants appear to acknowledge that a sum of STG £157,500 was removed by the first Defendant from a bank account in the Isle of Man after the making of the Mareva Injunction herein. The contention is made, however, that these monies were used to pay an initial payment for stock valued at Stg £210,000 and that therefore the assets were not "reduced" by any amount. This £300 will be used to enable two independent valuers to assess the value of the stock and thus facilitate the Defendants in satisfying the Court, it is contended, that there was no breach of the initial Order.

26. The Plaintiffs, refer me to an Affidavit of the first Defendant sworn on the 29th of June, 1999 which was used to support an application to the Court for payment out of the balance of the purchase monies for this stock. In the course of that Affidavit the first Defendant swore:

27. Counsel for the Plaintiff informed me that the deponent was cross-examined on this averment and that it transpired that, contrary to the impression which this paragraph conveys, the deponent removed the monies from the Isle of Man account after the initial Order herein which was made on the 17th of June, 1999.

28. It came as no surprise to me, clearly, to be told that my learned colleague, O'Higgins J., was very concerned about this matter and refused to confirm the payment out of the balance.

29. In my opinion to approve this relatively trifling sum would offend against the same principle: it could be perceived as lending some kind of legitimacy to a money transaction which, even on the first Defendant's own account, did not secure equivalent value. Furthermore, in my view the deponent's Affidavit was misleading. I must refuse this element of the application.