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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Dunne [A Bankrupt] & Ors v Dunne & Ors (Approved) [2025] IEHC 120 (05 March 2025) URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC120.html Cite as: [2025] IEHC 120 |
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THE HIGH COURT
[2025] IEHC 120
Record No. 2021/4915
Between
SEÁN DUNNE (A BANKRUPT), BOBBY LUKE DUNNE (SUING BY HIS FATHER AND NEXT FRIEND SEÁN DUNNE), HARRISON DUNNE (SUING BY HIS FATHER AND NEXT FRIEND SEÁN DUNNE), RYAN EMMET DUNNE (SUING BY HIS FATHER AND NEXT FRIEND SEÁN DUNNE), THOMAS JOSEPH DUNNE (SUING BY HIS FATHER AND NEXT FRIEND SEÁN DUNNE)
Plaintiff
and
JOHN DUNNE AND GAYLE KILLILEA AND YESREB HOLDINGS LIMITED
Defendant
Judgment of Mr. Justice Conor Dignam delivered on the 5th day of March 2025
INTRODUCTION
1. The defendants seek:
(i) An Order staying the plaintiffs' proceedings on the ground that Ireland is not the natural or appropriate forum to determine the proceedings (forum non conveniens);
(ii) A declaration that the Irish courts do not have jurisdiction to hear and determine the plaintiffs' claim due to an applicable exclusive jurisdiction clause;
(iii) An Order dismissing the proceedings as being res judicata on the ground that the issues have already been determined by the courts of the District of Connecticut in the United States.
2. It is only necessary to consider the third relief if I refuse both of the other reliefs.
3. The first-named plaintiff has been adjudicated bankrupt in Connecticut and in Ireland. The Official Assignee supports the defendants' application.
4. From a consideration of all of the papers, the procedural and factual background to these proceedings and to this application appears to be as follows. It is important to note that there are many issues in dispute between the parties. I am not resolving any such disputes at this stage. I propose to, insofar as possible, set out matters which are not in dispute and to identify, whilst doing so, any matters which are in dispute.
5. The first-named plaintiff and the second-named defendant were a married couple.
6. In July 2005, the first-named plaintiff purchased a property on Shrewsbury Road in Dublin known as "Walford". He claimed that he bought this for the second-named defendant, that she was the sole beneficial owner from the date of purchase and that he held it in trust for her subject to a declaration of trust. He subsequently claimed that it was held on trust for his children. He was replaced as trustee by Matsack Nominees Limited in 2006. This dispute about whether the first-named plaintiff bought and held the property in his own right or on behalf of others is a hotly contested issue.
7. It appears that on the 23rd December 2010, a trust known as "the Bloem Trust" or, more properly, "the Bloem Settlement" was established, under which a Trust Fund was to be held for the benefit of 'the children and remoter issue of the first-named plaintiff, the second-named defendant, and any persons added to the class of beneficiaries' under a power in the trust instrument. It originally included a choice of jurisdiction clause and a choice of law clause which identified Gibraltar and the laws of Gibraltar as the governing jurisdiction and laws respectively. These were changed to Cyprus and the laws of Cyprus and then, by deed of the 23rd November 2013, the British Virgin Islands and their laws were designated as the relevant jurisdiction and law in place of those of Cyprus.
8. On the 12th February 2013, Ulster Bank Ireland presented a petition to the High Court to have the first-named plaintiff adjudicated bankrupt in Ireland.
9. However, on the 29th March 2013, the first-named plaintiff filed for bankruptcy in Connecticut. He was made bankrupt in Connecticut and a Mr. Richard Coan was appointed his trustee ("the US trustee"). That Order included a worldwide stay on creditors action against the first-named plaintiff.
10. On the 29th March 2013, the same day as the first-named plaintiff filed for bankruptcy in Connecticut, a deed of conveyance in respect of Walford was completed conveying Walford to the third-named defendant ("Yesreb"). The deed of conveyance was signed by the first-named plaintiff as the "original trustee" and by the second-named defendant as the "beneficial owner". It appears that no money changed hands in this transaction and that the property was sold to Yesreb for €14,000,000 by way of a loan note which provided that the second-named defendant would be paid back if and when Yesreb subsequently sold the property. Yesreb is a Cypriot company. There is a dispute about the beneficial ownership of this company. The owner of the shares is the first-named defendant. He has claimed in U.S. Court filings that he owned them on behalf of the second-named defendant as an accommodation for her for tax purposes. It has also been claimed by the first-named plaintiff that the first-named defendant held the shares on behalf of three of his minor children (three of the minor plaintiffs). However, the first-named plaintiff also says at paragraph 14 of his grounding affidavit that the second-named defendant was at one stage the sole beneficial owner of the shares.
11. On the 4th June 2013, the Connecticut court varied the stay on creditors' actions to, inter alia, permit Ulster Bank to proceed with its bankruptcy petition in Ireland.
12. The first-named plaintiff was adjudicated bankrupt in this jurisdiction on foot of that petition on the 29th July 2013. The first-named plaintiff brought an application to show cause and on the 6th December 2013, the High Court dismissed that application. The first-named plaintiff appealed to the Supreme Court and, on the 15th May 2015, the Supreme Court dismissed the appeal and affirmed the order of adjudication. Since then the bankruptcies in Connecticut and this jurisdiction have both proceeded. The role of the Irish bankruptcy has been described by Laffoy J as "an ad colligenda bona function, that is to say, a function to collect and preserve the assets of B.A." (AA v BA [2017] 3 IR 498).
13. As far as I understand it, the first-named plaintiff claims that in 2015 Yesreb borrowed several million euros from the Bloem Settlement and used it to pay off part of the loan which the second-named defendant had given Yesreb to purchase Walford. The Bloem Settlement is noted in Yesreb's financial statements to be a related undertaking. In any event, the first-named plaintiff claims that Yesreb is encumbered in favour of the Bloem Trust.
14. In 2016, steps were being taken to sell Walford. It seems the first-named plaintiff was heavily involved in this process. When this became known to the Official Assignee (and that the first-named plaintiff was involved) he instituted proceedings entitled "Christopher Lehane as Official Assignee in Bankruptcy in the Estate of Seán Dunne v Yesreb Holdings Ltd Record No. 2016 10991P". A lis pendens was registered in respect of Walford on the 9th December 2016.
15. On the 5th January 2017, a solicitor acting on behalf of an entity known as Celtic Trustees Ltd wrote to the Official Assignee informing him that Celtic Trustees Ltd had in fact acquired Walford on the 6th December 2016 from Yesreb. This was before the issuance by the Official Assignee of his proceedings and the registration of the lis pendens. The first-named plaintiff claims that this sale only concluded on the 4th February 2020. The Official Assignee avers that this sale closed in December 2016 but the sale proceeds were held in escrow pending the outcome of the Official Assignee's proceedings against Yesreb and were released from escrow in February 2020. The first-named plaintiff claims that €2.5m of these proceeds were used to pay off the balance of the loan from the second-named defendant.
16. The U.S. Trustee issued proceedings in the U.S. Bankruptcy Court in the District of Connecticut in March 2015 alleging, inter alia, fraudulent transfers of assets or money by the first-named plaintiff to the second-named defendant (Coan v Killilea Adv.Proc. No. 15-05019 (D. Conn)), specifically, insofar as relevant to this judgment, a fraudulent transfer of Walford. These are known as "the Adversary Proceedings" (or the "United States Adversary Proceedings"). The Adversary Proceedings, together with another action (the two had been consolidated), were heard before a jury over nineteen days and, on the 4th June 2019, the jury found, inter alia, that the first-named plaintiff had engaged in an intentionally fraudulent transfer of Walford to the second-named defendant on the day that he petitioned for bankruptcy in Connecticut. After the verdict, Judge Meyer, who had presided over the jury trial, directed mediation discussions and they proceeded in July 2019 but to no avail. The first-named plaintiff and the second-named defendant have appealed the jury verdict.
17. Applications for post-verdict relief, including an application by the first-named plaintiff for a new trial, were made to Judge Meyer. He determined these on the 15th July 2021 in an Omnibus Ruling on Post-Verdict Issues and dismissed the first-named plaintiff's application for a new trial. This involved a very careful consideration of, inter alia, the evidence that had been before the jury when it made its decision that Walford had been fraudulently transferred by the first-named plaintiff to the second-named defendant.
18. On the 4th February 2020, the Official Assignee's proceedings against Yesreb were settled along with two other sets of proceedings entitled: Celtic Trustees Limited v Christopher Lehane as Official Assignee in Bankruptcy in the Estate of Sean Dunne (Record No. 2017 2148P), and Desmond, Celtic Trustees Limited & Ors v Lehane and the Insolvency Service of Ireland (Record No. 2017 574P). The proceedings were settled by an agreement ("the Yesreb Settlement Agreement") as to the apportionment of the monies in the escrow account (which had been set up by agreement of Yesreb and Celtic Trustees Limited when the latter purchased Walford in 2016 and which contained the proceeds of sale of Walford). It was agreed that €1,600,000 would be paid to Celtic Trustees Ltd, €250,000 to Yesreb and the balance to the Bankruptcy Estate of the first-named plaintiff. Clause 6 of the Settlement Agreement expressly provided:
"The payment to be made to Richard M. Coan, Trustee, shall be held subject to an order of the US Bankruptcy Court and the sum of the Balance plus €1,600,000 and plus €200,000 plus the amount of any negative interest charged since 31 December 2019, will be credited as against the "Global Settlement" of the jury verdict in proceedings entitled Coan v Sean Dunne et al ADV. Proc. No15-2019 (JAM) (Consol) (the "US Litigation"). In the event that the parties in the US Litigation do not achieve a "Global Settlement" approved by US Bankruptcy Court, the Balance shall be held pending further order of the US Bankruptcy Court as security for the Trustee's jury verdict and prospective judgment. The resolution of the Global Settlement does not affect in any way the settlement reached between the Parties to this settlement agreement in respect of the Yesreb, Celtic and Privacy Proceedings."
19. Clause 12 provides:
"This settlement agreement shall be governed by, and construed in accordance with, the laws of Ireland. Any dispute arising out of or in connection with, or concerning the carrying into effect of, this settlement agreement shall be subject to the exclusive jurisdiction of the Courts of Ireland, and the Parties hereby submit to the exclusive jurisdiction of those Courts for these purposes."
20. On the 30th January 2020, immediately before the Yesreb Settlement Agreement, the first-named plaintiff had issued proceedings in the United States entitled "Sean Dunne, as Parent, sole disinterested guardian, primary custodian and next friend to the Dunne Children v John Dunne Case #1:20-cv-00896-AT". They were issued in the Supreme Court of the State of New York but were subsequently transferred to Connecticut where they were dealt with by Meyer J, the same judge who had dealt with the Adversary Proceedings and who would deal with the application for post-verdict relief, the subject of the Omnibus Ruling. The claims made in these proceedings are of significance to the forum non conveniens and res judicata bases for the current application and I will return to them. In brief, they included claims that the assets of Yesreb (the proceeds of sale of Walford) were owed to the Bloem Trust (that they were in fact an asset of that trust) and were going to be wrongfully transferred to fund the settlement of the jury verdict against the second-named defendant. Injunctive relief was also sought.
21. The first-named defendant, the defendant in those proceedings, brought an application to dismiss those proceedings.
22. Judge Meyer dismissed the first-named plaintiff's proceedings on the 1st June 2021, holding that under the applicable US law, the first-named plaintiff, as a non-attorney, did not have standing to represent his children. Judge Meyer also considered whether he should, of his own motion, appoint counsel on behalf of the children and decided that he should not do so because of, inter alia, the jury finding that the transfer of Walford by the first-named defendant was fraudulent and that Yesreb is a subsequent transferee of the property and therefore the US Trustee has an interest in the proceeds of sale that is senior to any interest the Dunne children might have. Importantly, Judge Meyer dismissed the claim without prejudice.
23. The first-named plaintiff then issued these proceedings. He secured a Mareva injunction on an ex parte basis on the 3rd September 2021 but that lapsed. He also obtained liberty to serve an Amended Plenary Summons. According to a note on the face of the Amended Summons, it was amended on the 19th October 2021 pursuant to the Order of the 3rd September 2021 (Twomey J). This is the applicable Summons. The first-named plaintiff has brought a motion for leave to deliver a Further Amended Plenary Summons, including joining the Official Receiver and his successor. However, the Amended Plenary Summons, amended on foot of Twomey J's Order, is the applicable one for the purpose of the current application.
24. The Amended Plenary Summons seeks various injunctive and declaratory reliefs in respect of the "Bloem Trust" and "Bloem Trust Assets". It also seeks damages under various headings including for breach of duty, deceit, subterfuge and/or abuse of position of trust, embezzlement, breach of Trust and/or mismanagement and/or misuse of Trust Assets. This is not an exhaustive list. It is not necessary to set the contents of the General Indorsement of Claim out in full but I refer to them further below.
EXCLUSIVE JURISDICTION
25. I am satisfied that the courts of Ireland do not have jurisdiction in light of the express terms of the choice of jurisdiction clause in the Bloem Settlement Deed, as contained in the Deed of Amendment of Proper Law and Change of Governing Law of Administration of the 30th November 2013 ("the Deed of the 30th November 2013").
26. The Settlement Deed initially provided that the courts of Gibraltar would have jurisdiction and the law of Gibraltar would be the applicable law. By Deed of Amendment of Proper Law and Change of Governing Law of Administration of the 30th November 2012 the proper law and relevant jurisdiction were changed to the Republic of Cyprus. Then by the Deed of the 30th November 2013, they were changed to those of the British Virgin Islands. That Deed provides, inter alia:
"1) In exercise of the power conferred by the Deed of Trust and all other powers (if any) the Trustees AND Protector HEREBY DECLARE the change of the proper law of the Settlement from the laws of the Republic of Cyprus to the Laws of the British Virgin Islands.
2) In exercise of the above power, it is HEREBY subsequently DECLARED that the courts of the British Virgin Islands (as defined in the applicable legislation) will be from the date of this Deed the proper forum for administration of the Settlement and all deeds supplemental to it.
3) In addition to the above it is HEREBY DECLARED that all provisions of the Settlement should be reviewed and read in conjunction with, and should be subject to interpretation in accordance with, the relevant Laws of the British Virgin Islands. It is subsequently DECLARED that reference made to the Laws of Cyprus should henceforth be disregarded and replaced where indicative and appropriate with the applicable Laws of the British Virgin Islands."
27. The defendants in their written submissions set out what they say is the general approach to jurisdiction clauses in contractual and trust documents.
28. The plaintiffs did not dispute these principles, other than to say that the authorities cited by the defendants in relation to contract documents are irrelevant and that the defendants only rely on Lewin on Trusts and cite no Irish or other common law authority in relation to the operation of an exclusive jurisdiction clause in a trust instrument. The plaintiffs' main focus in addition to that point was to say (i) that the choice of jurisdiction clause in the Bloem Settlement does not apply because these proceedings are not concerned with the "administration" of the Bloem Settlement, that the proceedings concern a claim that the Yesreb Settlement should be set aside as unlawful on the grounds that it is contrary to public policy and this is a matter of Irish law; (ii) that the applicable jurisdiction clause is the one in the Yesreb Settlement Agreement; (iii) that the Amended Plenary Summons is not the relevant pleading because the plaintiffs have a motion to further amend the Amended Plenary Summons; and (iv) that the proceedings are in rem proceedings because they relate to land.
29. It seems to me that due to the choice of law clause, the meaning of these clauses is a matter to be determined by the law of the British Virgin Islands. However, this point was not raised by any party and no evidence as to the law of the British Virgin Islands was adduced by any party. The parties simply proceeded on the implicit basis that the Deed of Settlement, including the choice of jurisdiction clause, should be construed in accordance with Irish law. In those circumstances I have, in the first instance, approached the matter in this way.
30. Lewin on Trusts (20th Ed, Sweet & Maxwell, 2020) states at paragraph 11-078:
"Given the basis on which jurisdiction clauses in trusts are enforced, they are binding on and can be enforced by all those who claim rights under the trust or who have assumed duties or powers under it in respect of such matters. The class so bound includes beneficiaries (including persons claiming to be beneficiaries and, in our view, former beneficiaries who have been excluded under a power of exclusion or whose interest has been extinguished under an overriding power), trustees, former trustees, and protectors and other donors of powers. Even as between such persons, however, a jurisdiction clause may not be binding in disputes which do not concern the trust."
31. It is true that the defendants did not cite any other authorities for the proposition that the plaintiffs (or at least the minor plaintiffs), as beneficiaries, are bound by a jurisdiction clause. However, I find the reasoning for the enforcement of such clauses set out earlier in Lewin compelling. At paragraph 11-067 and 11-068, the authors write:
"Where a jurisdiction clause is part of a contract, the court normally gives effect to it for the simple reason that it has been agreed by the parties and the parties should be held to what they have agreed. That reasoning may apply in trust cases as between the parties who have executed the trust instrument containing the jurisdiction clause; and when the trust is part of a commercial bargain between the parties enforcement will be based on holding them to their bargain.
That reasoning, however, does not apply between trustees and beneficiaries who have not all executed the trust instrument or otherwise adhered by agreement to its terms. Even so, the jurisdiction clause forms part of the terms of the trust upon which trustees accept office, and under which beneficiaries claim to benefit, and it is on those grounds that such clauses have been upheld and enforced. Enforcement also respects the autonomy of the settlor, that is, the ability of the settlor to specify the terms on which he provides his bounty. There seems to be no reason of public policy why the jurisdiction clause should be regarded as ineffective or irrelevant in trust cases and such a clause has the advantage that it reduces the uncertainty, and hence the costs and scope for interlocutory litigation, of identifying the appropriate forum for trust litigation in cases with an international element."
32. Thus, I am satisfied that the jurisdiction clause is binding on the plaintiffs.
33. As set out above, the jurisdiction clause provides that the courts of the British Virgin Islands shall "be the proper forum for administration of the Settlement and all deeds supplemental to it." I am satisfied, on the basis of the use of "shall" and of the singular definite article in respect of the courts of the British Virgin Islands as the proper forum that this is an exclusive jurisdiction clause in respect of the matters which are covered by the clause.
34. The plaintiffs' position is that the clause is limited to the "administration" of the settlement, the proceedings are not concerned with the "administration" of the Bloem Settlement, and therefore the jurisdiction clause does not apply. I am not convinced that the choice of jurisdiction clause is in fact limited in this way, i.e. limited to the administration of the trust, because there are subsequent Deeds (for example a Deed of Exclusion of Beneficiary of the 2nd March 2017) which are stated to be supplemental to, inter alia, the deed of the 30th November 2012 and which, in the case of the deed of the 2nd March 2017 states, "This Deed is governed and construed by and in accordance with the Laws of the British Virgin Islands and all parties to this Deed hereto SUBMIT to the jurisdiction of the courts of the British Virgin Islands in all matters arising out of or in connection with this Deed and/or the Trust" [emphasis added]. This appears to extend the choice of jurisdiction clause beyond solely "administration" of the trust. However, this point was not argued and I therefore do not resolve it. The parties proceeded on the basis that the choice of jurisdiction clause was only in respect of the "administration" of the trust and I therefore do so also.
35. The basis for the plaintiffs' submission that the proceedings do not concern the administration of the trust is as follows. It is submitted (paragraph 13 of the plaintiffs' written submissions) that the proceedings "...concern the improper transfer of monies which deprive the minor Plaintiffs of the benefit of the Bloem Settlement." They also submit that the proceedings concern a claim by the plaintiffs that the Yesreb Settlement Agreement should be set aside as unlawful on the grounds that it is contrary to public policy (paragraph 12 of the written submissions) and that it was made in disregard of the fact that the monies in the escrow account "were encumbered and owing to the Trust Assets for the benefit of the minor Plaintiffs, to wit, the "Bloem Trust" or the "Bloem Settlement"" (paragraph 8 of the written submissions). At the hearing, it was also submitted that the proceedings were concerned with the vindication of the plaintiffs' constitutional rights.
36. The fundamental flaw in the plaintiffs' submissions is that the claims pleaded by the plaintiffs in the Amended Plenary Summons are expressly concerned with the administration of the Bloem Settlement. The opening paragraph of the General Indorsement of Claim makes this clear. It pleads:
"The Defendants have and continue to derive a personal advantage from the administration of the trust, namely the Bloem Trust and its assets. The Defendants self-deal in the Trust Assets despite them being excluded persons and that they allege acting in the interest of the beneficiaries, which gives rise to such conflicts and diminution of trust asset values."
37. Thus, on the plaintiffs' own case, notwithstanding what is stated in the written submissions, the claim is concerned with the administration of the Bloem Settlement. It is not open to the plaintiffs to plead that the defendants are in breach of duty in respect of the administration of the Trust and then, in order to argue that the exclusive jurisdiction clause does not apply, to argue that the case is not about the administration of the estate.
38. On that basis alone, I am satisfied that the exclusive jurisdiction clause applies.
39. I have also considered whether, if that express plea is disregarded, the substance of the reliefs sought concern or arise from the "administration" of the trust.
40. I am satisfied that the substance of the claims advanced do concern the administration of the Bloem Settlement.
41. The reliefs sought, include, for example:
(i) an injunction preventing the dissipation of Bloem Trust Assets by the defendants;
(ii) an injunction preventing Bloem Trust Assets being used to settle with the first and second-named defendants' creditors;
(iv) an injunction preventing the defendants from procuring or authorising any transaction in respect of the Bloem Trust Assets and that any such authorisations be deemed null and void;
(v) an injunction preventing the first and second-named defendants from further re-organising and/or appointing and/or otherwise making changes to the Bloem Trust structure and any appointment or other changes be reversed, set aside, or deemed voidable;
(vi) a declaration that the second to fifth-named plaintiffs are the sole beneficiaries of the Bloem Trust;
(vii) a declaration that the first and second-named defendants are excluded persons of the Bloem Trust;
(viii) orders removing the first and second-named defendants as protector or preventing them taking or holding any office of the Bloem Trust and reinstating the first-named plaintiff as Bloem Trust and permitting him to appoint Trustees;
(ix) a declaration that there exists no authority to self-deal;
(x) a declaration that the first and second-named defendants are not Trustees and are not beneficiaries and cannot benefit from disposal of Bloem Trust Assets;
(xi) a declaration that Yesreb is encumbered to the Bloem Trust in the sum of €14,250,000 subject to an interest rate of 17%;
(xii) an order that the second-named defendant, as protector, carry out such duties and obligations in accordance with the Bloem Trust structures and rules.'
42. The plaintiff also seeks an Order against the Official Assignee and the US Trustee to disclose the terms of the Yesreb settlement in February 2020. Neither of these are defendants to the proceedings as currently constituted.
43. Reliefs numbered 1-5 and 10 in the Amended Plenary Summons are all concerned with the use of Bloem Trust Assets and the defendants' authority in respect of those assets, and/or "changes to the Bloem Trust structure." Reliefs 6 and 7 are concerned with who the beneficiaries and excluded persons are. Reliefs 7, 8, 9 and 11 are concerned with who the trustees and protector is under the Trust. The relief at paragraph 14 does not make any sense. Relief 15 does not apply in circumstances where the Official Assignee and the U.S. Trustee are not defendants. Reliefs 12, 17 and 18 are concerned with the enforcement of an alleged loan given by the Bloem Trust to Yesreb. Finally, the claims for damages all arise out of the alleged actions of the defendants in respect of the trust. These are all matters which involve and arise from the "administration" of the trust.
44. Furthermore, when the reliefs are read along with the express plea in the first paragraph of the General Indorsement of Claim, the conclusion that the substance of the reliefs is concerned with the administration of the Bloem Settlement is reinforced.
45. As already noted, the plaintiffs also claim that the proceedings do not relate to the administration of the Bloem Settlement because the claim is to have the Yesreb Settlement set aside as being contrary to public policy. The plaintiffs do not in fact seek that as a relief. They also submitted that the claim seeks to vindicate the plaintiffs' constitutional rights, but no specific relief is sought in respect of such constitutional rights. Thus, these claims are not in fact made in the pleadings.
46. I am, therefore, satisfied that the plaintiffs' claims in the applicable Plenary Summons are governed by the choice of jurisdiction clause and the courts of Ireland do not have jurisdiction.
47. The plaintiffs make the point that they have brought a motion for liberty to further amend the Amended Plenary Summons, and that jurisdiction should be determined by reference to the proposed Further Amended Plenary Summons. It seems to me that the jurisdiction motion must be determined on the basis of the current pleadings. The plaintiffs had ample time to draft the General Indorsement of Claim. As set out above, they had litigated in relation to the proposed Yesreb Settlement in the US courts between January 2020 and June 2021 before that case was dismissed. The plaintiffs did not institute these proceedings until September 2021. Thus, they had a year and a half to frame their case, and they pleaded it as set out in the Amended Plenary Summons. It was only after the defendants had entered a conditional appearance contesting jurisdiction that the plaintiffs sought to further amend the Amended Plenary Summons.
48. In any event, even if the jurisdiction question is determined by reference to the proposed Further Amended Plenary Summons, I am satisfied that the root of the claims is the administration of the trust and therefore the exclusive jurisdiction clause applies. The draft Further Amended Plenary Summons includes the same reliefs as the Amended Plenary Summons. In addition, it seeks Orders in respect of the Yesreb Settlement (which are absent from the Amended Plenary Summons). Thus, it does seek to broaden the claim. Nonetheless, the matters pleaded still focus on the administration of the trust. For example, the first paragraph pleads:
"The First, Second and Third Named Defendants have and continue to derive a personal advantage from the administration of the trust, namely the Bloem Trust and its assets (the "Bloem Trust Assets"). The First, Second and Third Named Defendants self-deal in the Bloem Trust Assets despite them being excluded persons and that in so doing they are not acting in the interest of the beneficiaries, which gives rise to such conflicts and diminution of Trust Asset values.
49. The second and third paragraphs refer to the Yesreb Settlement and the transfer of the monies to the US Trustee and it is pleaded in the fourth paragraph:
"By entering into and executing the Settlement Agreement for the purposes of making an unlawful transfer, the First and Second Named Defendants have acted in breach of their duties as trustees; the Third Named Defendant has acted in breach of its contractual obligations to the Trust Asset; and the Fifth Named Defendant has acted in breach of his obligation as an officer of the High Court."
50. I am, therefore, of the view that the exclusive jurisdiction clause applies, even if the relevant pleading is the proposed Further Amended Plenary Summons.
51. It follows that I am of the view that the choice of jurisdiction clause in the Yesreb Settlement is not the governing clause.
52. In any event, the plaintiffs have no standing to enforce the Yesreb Settlement Agreement as they are not parties to it.
53. It follows from the above, that the Irish courts do not have jurisdiction.
54. In light of the issue referred to above, i.e. that the law by which the choice of jurisdiction clause must be construed is the law of the British Virgin Islands, and the possibility that if that law were applied, a different conclusion would be reached, I propose to also consider the question of forum non conveniens.
FORUM NON CONVENIENS
55. Delany & McGrath in "On Civil Procedure", (5th Edition 2023) state at paragraph 1-95 that "[t]he phrase forum non conveniens refers to the discretion of the courts to dismiss proceedings or grant a stay on the basis that there is another more appropriate forum for the hearing of the action."
56. Dunne J said in Abama v Gama Construction Ireland [2011] IEHC 308 that the question is to which forum "...the action [has] the most real and substantial connection".
57. Clarke J considered the doctrine of forum non conveniens in Irish Bank Resolution Corporation Ltd v Quinn [2016] 3 IR 197. He said:
"68. The first principle is that the Court must look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.
69. Second, in the event that the applicant meets that obligation, the Court is required to consider whether the respondent has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings be tried in Ireland.
70. It seems to me that much of what is set out in the passage cited derives from one or other of those two underlying principles. The initial burden of proof rests on the applicant although, as in all cases, if the respondent wishes to put forward additional practical factors which might be said to favour the trial remaining in Ireland then it is for the respondent to put forward whatever evidence it may wish to rely on in that regard. Next if the interests of justice are said by the respondent to require that the proceedings be tried in Ireland despite those practical factors clearly pointing to an alternative forum then the onus rests on the respondent in that regard. The standard or threshold is that of it being shown that there is another jurisdiction which is clearly or distinctly more appropriate. The court exercises a broad adjudicative role and can take into account any practical factor which, in the circumstances of the case in question, has a bearing on which jurisdiction may be more appropriate. However, the sort of factors which will most normally come into play are those of convenience, expense, applicable law and location of the parties. Most of the other points made are encompassed within those general observations. The final point made is that the fact that a claimant may be deprived of "a legitimate personal or juridical advantage" is not in itself sufficient to prevent a stay being granted provided that substantial justice would be done in the available alternative forum. This point may be seen as an example of the sort of matter which should not be regarded as a practical factor influencing whether the first general principle is met or as supporting the view that such a point is not a sufficient factor to establish the second general principle unless, of course, there was a real risk that justice would not be done in the alternative forum.
71. Finally, there is the question of cases, of which this is clearly one, where the applicant is but one defendant and where a stay being granted on the proceedings insofar as they relate to that applicant will necessarily lead to the case which the plaintiff wishes to bring being fragmented. It may be possible to look at fragmentation as being one of the practical factors which might make it less appropriate to stay the proceedings in favour of the alternative forum or, at a minimum, may allow the plaintiff to establish that that alternative forum is not clearly or distinctly more appropriate. It might also be possible that a fragmentation of the case might give rise to the risk of injustice which would allow a court properly to retain jurisdiction even though the alternative forum might, so far as determining the case made against the defendant who sought the stay was concerned, be considered to be clearly more appropriate. Whichever of those approaches may be appropriate in a particular case there can be little doubt but that fragmentation can be an important factor depending on all of the circumstances of the case in question."
58. The burden of proving that there is an alternative forum which is clearly and distinctly more appropriate than Ireland is on the defendants. If the defendants establish that, the Court must still decide whether the plaintiffs have put forward a sufficient basis for suggesting that justice nonetheless requires that the proceedings be tried in Ireland. The Court in making its determination "exercises a broad adjudicative role" and in doing so, can "take into account any practical factor which, in the circumstances of the case in question, has a bearing on which jurisdiction may be more appropriate." Clarke J gave examples of factors such as convenience, expense, applicable law, and location of the parties. This is clearly not an exhaustive list.
59. I am satisfied that the defendants have succeeded in establishing that the U.S. courts are a clearly and distinctly more appropriate forum than Ireland. I am also satisfied that there is no sufficient basis for concluding that justice nonetheless requires that the proceedings be tried here. I am of these views having had regard to and weighing the following factors (they are not set out in any particular order):
(i) The first-named plaintiff applied to be adjudicated a bankrupt in the United States notwithstanding that a bankruptcy petition had already been issued in Ireland. He was admitted to bankruptcy in Connecticut before the determination of the Irish petition. It is, of course, the first-named plaintiff's position that the monies held by the U.S. Trustee are not part of his bankruptcy estate but, in light of him having invoked the U.S. courts' jurisdiction, those courts have primary jurisdiction to determine what is and is not properly part of his estate, particularly where the relevant asset is under the control of the U.S. Bankruptcy Court (see below).
(ii) As noted in the preceding paragraph, part of the plaintiffs' claim is that the Yesreb Settlement monies were unlawfully transferred into the first-named plaintiff's bankruptcy estate (in breach of a judgment of O'Connor J in an appeal from the Tax Appeals Commissioners, to which I return). In circumstances where the monies were transferred in light of the finding of the U.S. courts in the Adversary Proceedings, where the U.S. bankruptcy was first in time (on the first-named plaintiff's application) and the Irish bankruptcy is ad colligenda bona in nature, it seems to me that this favours the U.S. Bankruptcy Court resolving whether the asset is correctly considered part of the bankruptcy estate
(iii) The U.S. courts have dealt extensively with matters arising from the first-named plaintiff's bankruptcy. In particular, and crucially for this discussion, those courts, in the United States Adversary Proceedings, considered whether the transfer of Walford from the first-named plaintiff to the second-named defendant was fraudulent and, after a nineteen-day jury trial, the jury determined that this was a fraudulent transfer. The proceeds from the escrow account which are the subject of the Yesreb Settlement are the proceeds from the sale of Walford. The U.S. Courts also delivered a substantial Omnibus Ruling on Post Trial Issues on the 15th July 2021. As noted above, this required, inter alia, detailed engagement with and consideration of the evidence that had been before the jury as to the ownership and transfer of Walford.
(iv) The jury verdict has been appealed by the first-named plaintiff and the second-named defendant, and those appeals were, at the time of the hearing, pending before the U.S. courts. Those courts therefore continue to have jurisdiction.
(v) Thus, the U.S. courts have dealt extensively, and are very familiar, with the question of the ownership of Walford.
(vi) The proceeds from the sale of Walford are under the control of the U.S. Trustee. Importantly, that is on foot of an Order of the United States Bankruptcy Court. As things currently stand, the second-named defendant has been held to be neither a legal or beneficial owner of Walford and has no control over or access to the proceeds. If the jury verdict is overturned on appeal, there will then have to be a determination as to who is entitled to the monies currently under the control of the U.S. Bankruptcy Court through the U.S. Trustee. That is a matter for the U.S. Courts in two respects: firstly, the determination of the appeal is clearly a matter for those courts; and secondly, it is those courts that will have to make any consequential Orders in respect of the proceeds if that appeal is upheld.
(vii) As the monies are under the control of the U.S. Bankruptcy Court, if the Irish courts assume jurisdiction and make a determination in respect of those monies, ultimately the matter will have to go back to the U.S. courts. The plaintiffs say at paragraph 27 of their written submissions that "...The Court is not being asked to exercise jurisdiction over the monies transferred, but rather to award damages to the plaintiffs for breach of their property rights." If that were correct, it would not be necessary for the U.S. courts to make any Order in respect of the monies. However, it is not correct. The Amended Plenary Summons seeks injunctive relief in respect of those monies. At paragraph 3, for example, an injunction "preventing Bloem Trust Assets being used to settle with the First and Second Named Defendant creditors" is sought. At paragraph 13 a declaration is sought that "...any Bloem Trust transactions or transfer of assets are voidable." Both of these directly affect the monies held under the control of the U.S. Bankruptcy Court.
(viii) Furthermore, this point engages the principle of comity of courts. Were the Irish courts to accept jurisdiction and decide that the plaintiffs are entitled to the proceeds that would trespass on the jurisdiction of the U.S. Courts in circumstances where the proceeds of the Yesreb Settlement have, since February 2020, been the subject of a U.S. Bankruptcy Court Order. In Ranbaxy Laboratories Ltd v Warner Lambert Company [2009] 4 IR 584, Clarke J said (at paragraphs 54-55):
"The principle of the comity of courts requires that the courts in one jurisdiction should not lightly depart from a decision on the same issue made by a court of competent jurisdiction in another country which had to deal with that issue as part of litigation properly under its consideration. Thus, for example, where the courts in one jurisdiction have interpreted a contract in a particular way and where the same contract comes to be interpreted, in a separate dispute between the same or similar parties, in the courts of another jurisdiction, then the comity of courts requires that the interpretation of the contract in the second proceedings should not lightly depart from the interpretation given to the same contract in the first proceedings.
This latter principle, it seems to me, ought also apply, though obviously to a more limited extent, where the issue, while not identical, is very similar."
It is that second paragraph which applies in this instance. The issues arising are not identical. They are, however, closely and directly related and a decision of the Irish courts undoubtedly has the potential to cut across the decision of the U.S. Court in the Adversary Proceedings and the Order of the U.S. Bankruptcy Court in respect of the proceeds arising from the Yesreb Settlement.
The principle of the comity of courts is a stand-alone principle but it also seems to me to be a relevant consideration to the question of forum non conveniens.
A point which was emphasised by the plaintiffs is that the decisions of the U.S. courts are inconsistent with or in breach of a decision of the Irish Tax Appeals Commissioner and a decision of O'Connor J. in an appeal from the TAC's decision (Yesreb Holdings Limited v Revenue Commissioners [2021] IEHC 317). O'Connor J decided that the first-named plaintiff was not "the accountable person" in respect of stamp duty due on the purchase of Walford in 2005. The plaintiffs contend that this means that it has been decided in Irish law that the first-named plaintiff had no ownership interest in Walford on the date of adjudication of bankruptcy. This point is raised at several points in the plaintiffs' submissions, including on the issue of comity, and it is therefore opportune to deal with it at this point. In the plaintiffs' written submissions, they submit that "The U.S. District Court for the District of Connecticut essentially rejected this ruling, based on the U.S. Jury Verdict." They also say "The U.S. Jury's finding clearly conflicts with the finding of O'Connor J that the First-named Plaintiff had no ownership interest in Walford on the date of his bankruptcy adjudication. The OA does not explain why the findings of the High Court and the Revenue Commissioners should be disregarded in favour of the findings of a U.S. Jury which is under appeal." At paragraph 85 of the written submissions, they state that the "...US Court has declined to give full faith and credit to the Judgment of O'Connor J. in respect of the ownership of Walford. Accordingly, the principle of international comity has not been respected, which works a continuing unfairness against the Plaintiffs." There is no substance to these criticisms. The U.S. jury verdict (6th April 2019) predated the decision of O'Connor J (6th May 2021) by almost two years and even predated the Tax Appeals Commissioner's decision by eight months. The Yesreb Settlement Agreement predated O'Connor J's judgment by more than a year. Furthermore, Meyer J dealt with the impact of O'Connor J's decision, including from the perspective of comity of courts, at length in his Omnibus Ruling on Post-Trial Issues (pages 30 - 36). One of the issues which had to be decided by Meyer J was an application by the first-named plaintiff for a new trial on the basis that the jury's verdict that he fraudulently transferred Walford is precluded by O'Connor J's judgment. I do not need to recite all of Meyer J's reasoning. It is absolutely clear that he did not disregard or reject O'Connor J's judgment or treat it with anything other than the respect it deserves. He stated at pages 32-33:
"Dunne has not identified a true or actual conflict between American and Irish law. Rather, Dunne has simply identified a difference in factual determinations between this proceeding and a later Irish proceeding involving different legal issues and different parties. As the Trustee puts it, "the fact that the Irish High Court reached a conclusion that differs from the Jury, based on different evidence, involving different parties and concerning different legal issues does not evidence a conflict between Irish and US law or implicate comity.
Moreover, it would be one thing if comity were invoked as a reason for a US court to defer to a foreign court's finding that has entered before the US Court has rendered a finding on the same issue. But here the jury has already rendered a verdict during the course of a fully contested trial at which Dunne was represented at all times by counsel and had a full opportunity to contest the Trustee's allegations. The principles of comity do not require US courts to negate their own findings or judgments simply because an unhappy litigant is able to secure a later conflicting finding or judgment from a tribunal somewhere else in the world...
...Here, the Irish litigation was not a bankruptcy proceeding, and it involved completely different legal issues. It also involved different parties, and there was no party even superficially representing the Trustee's interests in that action. Therefore, the Irish litigation is not a "parallel proceeding," and the comity analysis Dunne urges is inapplicable..."
(ix) The plaintiffs first invoked the jurisdiction of the U.S. Courts in respect of the proposed Yesreb Settlement and how that agreement proposed to deal with the funds held in the escrow account in the proceedings which were issued in New York. Very similar matters were raised as are now raised in these proceedings. This is clear from U.S. court filings, including the instituting document and a Declaration of the first-named plaintiff. The instituting document states, inter alia:
"...John Dunne is about to transfer, dissipate and diminish all assets held in a specific fund of moneys held by Yesreb Holdings Ltd (the "Specific Fund"). Contemporaneous with this Verified Complaint, Plaintiffs are seeking injunctive relief to stop Defendant from spoliating, transferring and depleting that Specific Fund - because after that asset is gone, the Dunne Children will be left with nothing and no means to seek recompense. While no liability has been found as to John Dunne, he seeks to use the Specific Fund to settle a claim against him and Gayle Killilea Dunne ("GKD") even though the Specific Fund is owed to a trust for the benefit of the Dunne Children (who are also owners of Yesreb).
...
3. Defendant John Dunne is the sole Director of an entity known as Yesreb Holdings Limited ("Yesreb") and also holds shares of Yesreb in trust for the benefit of Plaintiffs.
4. The Court has jurisdiction over this matter and venue is proper in New York County because Defendant resides in New York County.
...
6. Yesreb's only asset is the Specific Fund. It owes monies to the Dunne Children's trust.
...
9. John Dunne and GKD are currently negotiating a resolution to claims against them for monetary damages in Connecticut (the "GKD Settlement").
10. GKD has professed to Sean Dunne that she intends to use the Specific Fund to pay monies toward settling the claims against John Dunne and herself. John Dunne is in the process of following GKD's wishes.
11. Upon information and belief gathered from conversation with GKD and others, the Settlement is to be concluded this week or next and the monies funding the Settlement are in part, all the assets of Yesreb (i.e. the Specific Fund).
12. If the Specific Fund is depleted, transferred and spoliated - including being used to fund the GKD Settlement, the Dunne Children will be robbed of the benefits owed them.
13. The Dunne Children will have no recourse, and a monetary judgment here will be worth nothing as it will be unenforceable against Yesreb or any other person.
14. Accordingly, the only just and fair resolution here is that the Specific Fund not be used to fund the GKD Settlement, that GKD fund the GKD Settlement with her own funds (of which she has ample), and that the monies set aside in trust for the benefit of the Dunne Children remain in Yesreb and held for the benefit of the Dunne Children only.
...
16. There is a case and controversy as to Defendant's rightful exercise of power in seeking to use the Specific Fund to pay a settlement for which only he and GKD benefits at the expense of the Dunne Children..."
He expanded on those claims in a subsequent Declaration (20th December 2020) in those proceedings. He said, inter alia:
"16....JD holds the shares in Yesreb in trust for the first three of my minor children, my fourth minor son who was not born when Yesreb was established. This is the reason why he holds the shares in trust for only three of my minor children...
19....JD engineered for Totalserve to resign due to non-payment of fees and put himself in a position to take over the Yesreb/Bloem Trust structure with Gayle Dunne in order to illegitimately try and use the funds to settle personal litigation. This is the most basic breach of a close relative could seek to inflict on minor dependents...
22....Yesreb is in fact owned by Bloem Trust and is a connected party. This is proven by the draft financial and audited statements...
23. JD makes representations as though he is a trust and legal expert which he is not these. These representations should be dismissed as they are a false representation of the true position, on the purpose of the Bloem Trust. His evidence to the Court in the Consolidated Act of 2019 is correct. JD and his attorney wish for me and the Court to suffer amnesia to allow my four minor children to be victims of a fraud.
24. JD and Gayle Dunne simply wish to disregard the duties of their offices as directors/trustees and self-deal in the assets of the trust structure. Their actions seek to breach every rule in place to protect trust monies and are quite open about the fact that they wish to unlawfully collapse the structure for personal gain...
31. ...it is because I became aware of the attempted misappropriation of the Yesreb fund being a trust for three of my minor children and being part of the Bloem settlement which is a trust for all my minor children that forced me to commence said proceedings now before the courts...
34. I also draw the court's attention to my letter to attorney Nolin and others 21st September 2020 where it states that JD has sworn in the Yesreb proceedings that the beneficial interest in the shares is held for Gayle Dunne. This is an untruthful statement sworn in Irish proceedings apparently with JD and Gayle Dunne working clandestinely with the Trustee and the Irish Official Assignees in order to illegally access the Yesreb fund, being a fund for my minor children."
That the same issues are raised in the current proceedings is acknowledged by the first-named plaintiff. For example, at paragraph 15 of the second-named defendant's grounding affidavit, she says "The United States Mirror Proceedings cover much the same territory as the Grounding Affidavit in these proceedings..." She then goes on to quote excerpts from the first-named plaintiff's Declaration to show that they cover "much the same territory as the Grounding Affidavit in these proceedings." The first-named plaintiff says at paragraph 13 of his replying affidavit that "...as set out in Ms. Killilea's affidavit (¶¶14-19), these matters have been raised by in the US proceedings, and the Defendants cannot claim to be unaware of the substance of my children's claims..." Thus, he does not deny that the U.S. proceedings and these proceedings "cover much the same territory." At paragraph 20 of his replying affidavit he objects to the second-named defendant's characterisation of those U.S. proceedings. However, his comment is not directed at the question of whether the same issues are raised; it is directed towards the question of whether the claims in the current proceedings are res judicata because he goes on to say that "The suggestion is that these proceedings are res judicata. However, as Ms. Killilea concedes (¶18) those proceedings were struck out on the sole basis of my lack of standing to bring proceedings as a non-attorney. Accordingly, I say and am advised that the merits or substance of the claims in these proceedings have never been adjudicated and the principle of res judicata is inapplicable for that and other reasons." I am, in any event satisfied that they do in fact cover the same territory. It does not follow that these proceedings are res judicata.
(x) It was only when the U.S. courts dismissed the proceedings that the plaintiffs then sought to invoke the jurisdiction of the Irish courts. It is important to note that the U.S. Courts did not dismiss the U.S. proceedings on any jurisdiction ground and that the dismissal was made without prejudice. Thus, it remains open to the plaintiffs to litigate the issues in the U.S. Courts, whose jurisdiction they first invoked. No explanation has been offered as to why they have not sought to do so.
(xi) In the course of Judge Meyer's ruling dismissing the plaintiffs' action, he declined to appoint counsel to represent the interests of the minor plaintiffs (it will be recalled that the reason for the dismissal of those proceedings was that the first-named plaintiff as a non-attorney did not have standing to represent the minor plaintiffs). Judge Meyer declined to appoint counsel on the ground that the U.S. Trustee has an interest "...that is senior to any interest the [minor plaintiffs in the instant proceedings] children may have." I do not propose to determine whether this is a final decision for the purpose of the doctrine of res judicata. However, the fact that the U.S. courts have given some consideration to the question of ownership of the proceeds from the sale of Walford on foot of the plaintiffs' invocation of the jurisdiction of those courts is relevant to the question of forum non conveniens.
(xii) The plaintiffs submit that these proceedings are directed towards the vindication of the minor plaintiffs' constitutional rights and that Article 42A and 43 of the Constitution favour the litigation being conducted in the courts established by that Constitution. However, as noted above, there is not a single reference to the minors' constitutional rights in the Amended Plenary Summons. In those circumstances, the plaintiffs' claim must be understood as being that the various breaches by the defendants, including breach of trust etc, amount to the unlawful taking of the minors' assets and is, therefore, an interference with their constitutional property rights. The issue which has to be determined is whether the defendants are guilty of the alleged wrongs. It is well-established that where a constitutional right is regulated and protected by common law or statutory law, the Constitution does not confer a discrete cause of action for damages for breach of the constitutional right (Hanrahan v Merck Sharp and Dohme [1988] ILRM 629 and W v Ireland (No. 2) [1997] 2 IR 141). For example, an action for damages for personal injuries arising from negligence is the means by which the individual's right to bodily integrity is vindicated against damage from the negligent action of another. The injured party does not have a separate claim for damages for breach of the right to bodily integrity. In W v Ireland (No. 2) Costello said:
"The question can be posed this way, should the Constitution be construed so as to confer on a pedestrian injured by an army lorry a right to claim damages against the State for infringement of the right to bodily integrity in addition to, or an alternate to, an action for damages for negligence?
I am satisfied that it should not be so construed."
Of course, a new cause of action may be established where a constitutional right is not adequately protected by common law, but that case is not pleaded by the plaintiffs. The alleged wrongs to the plaintiffs' property rights are adequately protected by the common law, in the form of negligence, breach of contract, breach of trust and breach of duty. The logic of the plaintiffs' submission, in circumstances where there is no case brought specifically on the basis of constitutional rights, is that the Court could never place a stay on proceedings containing alleged wrongs affecting constitutional rights (including, for example, personal injuries and loss of property) on the basis of forum non conveniens because the underlying constitutional rights must be vindicated by the Irish courts. There is no basis in law for such a blanket suggestion. If the courts which are contended to be the more appropriate forum may not be able to adequately vindicate the substance of the underlying rights, that would, of course, be a relevant consideration in determining whether that jurisdiction was in fact an appropriate jurisdiction but that has not been suggested by the plaintiffs in respect of the U.S. courts.
(xiii) The plaintiffs also submit that the Court has and should retain jurisdiction because the proceedings are an action in rem, i.e., relate to Walford. This property is, of course, in Ireland. It is incorrect that this is an action in rem. This follows from the claims that are made in the Amended Plenary Summons (which does not include a claim for Walford) and from the contents of the plaintiffs' written submissions. In the latter, the plaintiffs submit that the subject matter of the proceedings "...is the legality of the Yesreb Settlement..." At paragraph 27 of the plaintiffs' written submissions, they describe the claim as follows: "If the Yesreb Settlement Monies were unlawfully transferred into Sean Dunne's bankruptcy estate, in breach of the question of ownership resolved by O'Connor J then the plaintiffs must be compensated. The Court is not being asked to exercise jurisdiction over the monies transferred, but rather to award damages to the Plaintiffs for breach of their property rights". Thus, on the plaintiffs' own account, these proceedings are not an action in rem.
(xiv) The Official Assignee is a creature of Irish statute. This is, of course, a factor, but four considerations limit the weight to be attached to it. Firstly, the Official Assignee is currently only a notice party to the proceedings; secondly, the fact that he is a creature of statute does not preclude him from participating in proceedings in the United States; thirdly, it has not been suggested by the Official Assignee that this would present a problem; and fourthly, indeed, the Official Assignee supports the defendants' application.
(xv) None of the plaintiffs live in this jurisdiction. The second-named defendant does not live in the jurisdiction and the third-named defendant is a Cyprus registered company. It is unclear whether the first-named defendant resides in the jurisdiction. He was residing in New York but I am unclear as to where he currently lives. The plaintiffs and the first and second-named defendants are citizens of Ireland. The mere fact that these parties do not live in Ireland is not determinative, particularly where they do not live in the United States. However, it is a factor to be balanced against other factors pointing towards the US being the appropriate jurisdiction.
(xvi) I am satisfied that none of the parties would face any particular practical difficulty in litigating in Ireland. Indeed, given that they are residing in England, Ireland may be more practically convenient than the United State. However, as against that, they clearly have no difficulty litigating in the U.S.. The first-named plaintiff applied for bankruptcy in the U.S. and, more importantly, first litigated the question of the Yesreb Settlement (or proposed settlement) proceeds in the United States before instituting these proceedings. The defendants have applied for a stay on the proceedings in Ireland on the basis that the United States is the appropriate forum and therefore it follows that they have no difficulty litigating in that jurisdiction.
60. Having regard to all of those factors, I am satisfied that the action has the most real and substantial connection with the U.S. courts and those courts are clearly and distinctly a more appropriate forum for the resolution of the core issues. I am not satisfied that there are sufficient grounds for concluding that, notwithstanding that the U.S. courts are the more appropriate forum, justice requires that the proceedings be tried in Ireland.
BRUSSELS I REGULATION RECAST
61. The parties address Council Regulation (EU) No. 1215/2012 ("the Brussels I Regulation (Recast)" or "the Regulation") in their written submissions. No submissions of any substance were made in relation to the Regulation at the hearing. The Regulation overrides an exclusive jurisdiction clause in favour of a non-European Union country in cases to which the Regulation applies. Similarly, the Regulation operates to preclude the operation of the doctrine of forum non conveniens in cases to which the Regulation applies. (See Owusu v Jackson (trading as Villa Holdings Bal-Inn Villas 20050 ECRI 383 and Amaba v Gama Construction Ireland Limited [2011] IEHC 308). It was held by Costello J in Beades v European Banking Authority [2016] IEHC 794 that the Regulation does not apply to proceedings unless they come within the scope of a particular Article of the Regulation.
62. The parties are agreed that the Brussels I Regulation (Recast) does not apply and in those circumstances, it is not necessary for me to determine the issue. While they arrive at that conclusion through different routes, in the absence of any substantive submissions, I should not consider or determine the issues arising as they may have to be determined in the future following full argument.
63. As correctly pointed out on behalf of the plaintiffs, the consequence of the Regulation not applying is that one of the bases upon which it is contended that the Court has no jurisdiction, ie. that a basis for jurisdiction is not stated on the face of the Amended Plenary Summons in breach of the requirements of Practice Direction HC62, must fall away.
CONCLUSION
64. In all of those circumstances, I am satisfied on foot of the exclusive jurisdiction clause in the Bloem Settlement that this Court does not have jurisdiction and that the proceedings must be struck out. In the alternative, I am satisfied that the proceedings should be stayed on the basis that Ireland is not the appropriate jurisdiction.
65. At the commencement of the hearing, an application was made to me by the defendants to exclude some of the material which was exhibited to the grounding affidavit of the second-named defendant sworn on the 7th January 2022. This material was contained in exhibit "GK3" to the first-named defendant's affidavit. That exhibit is a Declaration of the first-named plaintiff in the U.S. proceedings entitled "Sean Dunne v John Dunne and Richard M. Coan, Trustee", along with exhibits to that Declaration. The relevant exhibit is Exhibit C. This is an affidavit sworn by the first-named plaintiff in the Irish bankruptcy proceedings on the 9th December 2020 together with exhibits. The application was made on the basis that the materials related to family law proceedings. There was no opposition to this application. At the time, I made an Order prohibiting disclosure of that material and indicated that I would determine the issue at this stage. I am satisfied that this material should be excluded on the basis that its disclosure or publication would breach the in-camera rule.