Supreme Court dismisses appeal, upholding injunction restraining appellants from further litigation due to abuse of process.

THE SUPREME COURT

[Appeal No: 262 of 2005

and No: 314 of 2005]

Denham J.

Kearns J.

McGovern J.

Between/

Bula Limited (In receivership),

Bula Holdings,

Richard Wood and

Michael Wymes

Plaintiffs/Appellants

and

Laurence Crowley,

KPMG (A Firm)

Tara Mines Limited,

Outokumpu Oy,

Northern Bank Finance Corporation,

Ulster Investment Bank Limited,

Allied Irish Investment Bank Limited,

Navan Mining Public Limited Company

Defendants/Respondents

Judgment delivered the 3rd day of April, 2009 by Denham J.

1. This is an appeal by Bula Ltd. (in receivership), "Bula"; Bula Holdings, "Holdings"; Richard Wood, "Mr. Wood";

and Michael Wymes, "Mr. Wymes"; the plaintiffs/appellants, who are referred to collectively as "the appellants".

2. It is an appeal from the judgment of the High Court (Murphy J.) delivered on the 10th day of June, 2005.

3. The High Court had before it notices of motion: the notice of motion of the fifth, sixth and seventh named

defendants, referred to as "the banks"; the notice of motion of Laurence Crowley

the first named defendant "the receiver"; the notice of motion of Tara Mines Limited, the third named defendant, and

Outokumpu Oy, the fourth named defendant. The High Court noted the

attendance of the solicitor for the receiver of Navan Mining Public Company Limited (in receivership), who indicated

to the Court that due to lack of funds in the receivership the receiver was

not taking any part in these proceedings save to indicate his support to the notices of motion.

4. The notice of motion, brought by the banks, sought:

(a) An order dismissing the proceedings as constituting an abuse of the process of the court.

(b) Further, or alternatively, an order pursuant to Order 19, rule 28 of the Rules of the Superior Courts dismissing the

proceedings on the grounds that they are frivolous and vexatious and/or disclose no reasonable cause of action against

the banks.

(c) An order restraining the appellants and each of them from instituting any further proceedings against the banks

without the leave of the court.

5. The notice of motion brought by the receiver was in similar terms to that of the banks.

6. The notice of motion of the third and fourth named defendants sought an order dismissing the plaintiffs' action

against the defendants pursuant to Order 27, rule 1 of the Rules of the Superior

Courts, further or in the alternative, an order pursuant to the inherent jurisdiction of the Court dismissing the

appellants' action on the grounds:

(a) that the appellants' action constitutes a manifest abuse of the process of the Court,

(b) that the action discloses no reasonable cause of action against the second and third defendants or either of them,

(c) that the action is frivolous and vexatious, and that

(d) the appellants' claims against the defendant are res judicata.

7. Proceedings

These notices of motion were brought in response to proceedings instituted by the appellants, the plenary summons

issued in August, 2003, referred to as "these proceedings". In these proceedings, in the general indorsement of claim

on the plenary summons, the appellants claimed:

As against all the defendants:-

1. Damages for negligence

2. Damages for unlawful interference with the economic interests of the appellants and each of them.

As against the receiver:

3. Damages for breach of duty.

4. Damages for misrepresentation and/or negligent misstatements.

5. Damages for breach of contract.

6. A declaration that the receiver has purported to sell the property known as the Bula Mine at Nevinstown, Navan,

County Meath in breach of duty.

7. A declaration that the receiver was and is prohibited from acting as receiver and manager.

8. An injunction restraining the receiver from dealing with the proceeds of the purported sale, pending the

determination of these proceedings.

As against the second defendant:-

9. Damages for breach of contract.

10. Damages for misrepresentation and/or negligent misstatements.

As against the receiver and the third defendant:-

11. An Order setting aside the contract dated the 9th of May 2001 made between the receiver and Tara Mines Ltd.

12. An Order setting aside any conveyance between the receiver and Tara Mines Ltd pursuant to any purported

completion of the contract dated 9th May 2001 between the receiver and Tara Mines Ltd.

13. An Order setting aside any conveyance to any purported completion of the contract.

As against Tara Mines Ltd:-

14. A declaration that Tara Mines Ltd has no good title to the property.

15. An injunction restraining Tara Mines Ltd. from exercising and/or asserting any rights as purchaser under the

purported conveyance pending the determination of these proceedings.

16. An injunction directing that Tara Mines Ltd. refrain from entering onto, into or under, or extracting minerals from

the property.

As against the fourth, fifth and sixth defendants:-

17. Damages for breach of duty and negligence.

As against the first, second, third, fourth, fifth, sixth, seventh and eighth defendants:-

18. Damages against the first, second, third, fourth, fifth, sixth, seventh and eighth defendants for unlawful

interference with and obstruction of the course of justice.

As against the eighth defendant:-

19. A declaration that the eighth defendant had an interest in the security, pursuant to which the receiver purported to

sell the property to the Tara Mines Ltd.

20. A declaration that the eighth defendant was an intended beneficiary pursuant to the contract between the receiver

and Tara Mines Ltd. dated 9th May 2001.

21. An order directing that all necessary accounts and enquiries be taken.

22. Such further or other relief as to this Honourable Court shall seem fit.

23. Costs.

7. High Court Order

The High Court ordered that the proceedings be dismissed as constituting an abuse of the process of the Court. This

order was made pursuant to the inherent jurisdiction of the Court. Also, it was ordered that the appellants and each of

them be restrained from instituting any further proceedings against the receiver, Tara Mines Ltd., Outokumpu Oy, and

the banks, without the prior leave of the High Court.

8. Appeal

The appellants have appealed against the order and judgment of the High Court, filing seventy grounds of appeal.

9. Submissions on behalf of the appellants

On the case opening in this Court, counsel for the appellants, Mr. Frank Callahan, S.C., limited the grounds of appeal.

He submitted that he did not advance arguments to set aside the sale of the lands, or to set aside the judgment of this

Court on the s.316 application. Counsel submitted that the essence of the appellants' case was that there was in the

judgment of this Court in the s.316 application no determination on the merits of any of the matters that are the

gravamen of these proceedings. Further, that the merits could not have been determined under the s.316 application.

He submitted that the only proceedings which could ground a finding that the case was an abuse of process was the

s.316 application and judgment of this Court. Therefore, he submitted that, the primary legal issue on the appeal was

whether the judgment on the s.316 application is capable of giving rise to a res judicata in these proceedings given the

issues in that case and the nature of a s.316 hearing. Counsel referred to the events leading up to the s.316 order. He

referred to relevant dates in January 2001, to the receiver receiving an offer from Tara Mines Ltd., to the receiver's

application to court under s.316, the receiver instituting the proceedings by Motion on the 20th March, 2002, the

affidavit of Mr. Wymes of the 17th April, 2002, the Court hearing on the 27th April, 2002, the Court approval on the

20th June, 2002, the refusal of the stay on the 12th July, 2002, by the High Court, and the subsequent completion of

the sale by the receiver. On the 11th April, 2003, the Supreme Court affirmed the order of the High Court: Bula Ltd.

v. Crowley (No.4) [2003] 2 I.R. 430. Counsel submitted that the s.316 application, from the date of the application to

the date of the judgment in the High Court, occurred in a telescoped period of time, and he submitted that this is a

relevant factor in considering the difference between that application regarding the sale and these proceedings. Counsel

opened Bula Ltd. v. Crowley (No.4). He stated that the appellants relied on In re Edenfell Holdings Ltd [1999] 1

I.R. 443. Counsel submitted that when the applicants disputed the contract price under the s.316 application they were

told that "it was a very narrow goal mouth", that what was relevant was the process. Now on this application the

receiver and other defendants assert that the goal posts on the s.316 application were broad and that the rule in

Henderson v. Henderson [1843] 3 Hare 100 applies. He made submissions as to the narrow nature of the s.316

application, and stressed that it was a summary procedure, grounded on affidavit, with the receiver as applicant and as

dominus litus. He submitted that an application under s.316 has a narrow purpose and a narrow effect, and that s.316

is limited in its ambit. He submitted that it would be extraordinary if, because the receiver brings an application under

s.316, that, if a full scale challenge to the conduct of a receiver alleging wrong doing of a receiver, is not mounted in

the s.316 application, persons like the appellants are precluded from doing so. He submitted that that could not be

right. Counsel referred to the alleged wrong doing of the receiver. He submitted that the sale was at a gross

undervaluation. He submitted that if in these proceedings he could show wrongful conduct of the receiver, then the

order of this Court approving the sale is not determinative of the value. He emphasised that he was not trying to

intervene in the sale. Counsel submitted that the s.316 application had been a narrow determination, that he had been

precluded form canvassing other issues. He submitted that it was a classic s.316 application on process and price in the

High Court, which had been reviewed in the Supreme Court. Counsel pointed out the nature of the parties to the s.316

application; that it did not include Outokumpu Oy, that Tara Mines Ltd. was a notice party, that KPMG has not

brought a motion to strike out, and that Navan Mining Public Ltd. Co. was also a notice party. He stated that it was

astonishing to submit that the s.316 application avails persons who were not even a party to that application, where

there are allegations of wrongful actions; that this would extend res judicata to people not in the motions, that benefit

would flow not just to the people who seek the proceedings struck out. As well as In re Edenfell Holdings [1999] 1

I.R. 443, counsel referred to Henderson v. Henderson [1843] 3 Hare 100, and to A.A. v. Medical Council [2003] 4

I.R. 302.

As to the issue of the Isaac Wunder order, counsel submitted that it would be wholly inappropriate. He submitted that

the previous proceedings had been brought mostly with the advice of solicitors and counsel, and that the situation did

not warrant an Isaac Wunder order, in all the circumstances. Having reviewed the litigation, counsel submitted that Mr.

Wymes and Mr. Woods had had to address genuine and complex issues, that they had acted on legal advice, that they

had had a substantial interest in Bula, which gave rise to very serious concerns, which has left them with immense

liabilities. He submitted that the appellants had a legitimate interest. The fact that they had lost to Tara, and to the

banks, and on the s.316 application, could not on any fair view, he submitted, render them vexatious litigants so as to

merit an Isaac Wunder order.

Written submissions were filed also, which I have considered carefully. These concluded with the submission that, as a

result of the sale of the assets of Bula for £27.5 million, the appellants have sustained enormous losses as set out in the

statement of claim of these proceedings; that the appellants have an entitlement to have the Court adjudicate upon their

contention that some or all of the defendants were at least partly responsible for those losses; and that the appellants

are entitled to have their contentions tested by cross-examinations, and, to test the appellants by examination of their

evidence, and to support their case with such material as may be obtained by discovery of documents.

11. Submissions of behalf of receiver

Mr.. Ian Finlay S.C. addressed oral submissions to the Court, written submissions having been received, on behalf of

the receiver. Counsel referred the Court, inter alia, to three matters: (a) the nature of s.316 proceedings and the status

of the parties to the proceedings; (b) the nature of res judicata where an issue has been finally determined between the

parties; and (c) the principles in Henderson v. Henderson [1843] 3 Hare 100, submitting that where an issue could

have been raised but was not, a party is precluded from raising it later.

As to the issue of an Isaac Wunder order, counsel asked the Court to affirm the order of the High Court. He referred

to the history of the litigation and submitted that it was clear that that was the basis for the order in the High Court. He

submitted that the order should be made in the public interest.

12. Submissions on behalf of the third and fourth named defendants

Written submissions on behalf of the third and fourth named defendants were filed and considered. In oral submissions

counsel on behalf of the third and fourth named defendant, Mr. Brian Kennedy, B.L. adopted the submissions made

on behalf of the receiver. Inter alia, he relied on In the Matter of Salthill Properties Ltd. (In Receivership)

(Unreported, Supreme Court, McCracken J., 29th May, 2006). Counsel also stressed that the s.316 application was an

application for the directions of the Court as to the sale. Thus all issues that related as to whether the sale was

appropriate could have been raised. He submitted that the rule in Henderson v. Henderson [1843] 3 Hare 100

applied to all issues touching on the sale.

13. Submissions on behalf of the banks

Written submissions were received from the banks and I have considered them carefully. Counsel for the banks, Mr.

Seamus Noonan S.C., adopted also the submissions of the other defendants. In oral submissions he submitted that this

is the third attempt to raise these matters. He submitted that the issues had been dealt with in previous Bula

proceedings. He referred especially to the action brought by the appellants against Tara Mines and others. It was

before the High Court for 277 days, after which Lynch J. gave judgment against the appellants: Bula Limited (In

Receivership) and Ors. v. Tara Mines Ltd. and Ors (Unreported, High Court, 6th February, 1997). This was

upheld by the Supreme Court. Counsel submitted that the second attempt was in the s.316 application, which was also

appealed and upheld by the Supreme Court: Bula Ltd. v. Crowley (No.4) [2003] 2 I.R. 430. This is the third attempt,

he submitted, which has been dismissed in the High Court.

As to the Isaac Wunder order, counsel submitted that it was imperative that there be such an order. He pointed out

that it was merely a filtering process, but that it would protect against harassing litigation raising issues which have been

litigated many years ago.

14. New Statement of Claim

At the commencement of the hearing of the appeal before this Court counsel for the appellants submitted a new draft

statement of claim in these proceedings from which were deleted a number of the original claims. Counsel conceded a

number of grounds of appeal. Deleted from the original statement of claim, and so no longer an issue relating to the

claim or on this appeal of the motions, were:-

(a) a claim to set aside the previous s.316 proceedings, judgments and orders of the High Court and this Court;

(b) a claim to set aside the contract of sale dated the 9th day of May, 2001, between the receiver and Tara Mines Ltd.,

and any conveyance in completion of that contract;

(c) a claim that Tara Mines Ltd. had no good title to the property, and associated orders;

(d) a claim to set aside orders and judgments of the High Court and Supreme Court in Bula II, the banks case.

15. Issue

The kernel of this case is whether the High Court was correct in dismissing the proceedings of the appellants as

constituting an abuse of the process of the Court. There is also an issue as to whether the High Court erred in making

an Isaac Wunder order.

16. Decision

There have been decades of litigation brought by the appellants in relation to various issues relating to the mine. The

core issue in this case is whether the s.316 application and the decisions by the High Court and the Supreme Court on

that application, act as a bar to these proceedings.

17. In context

These proceedings require to be considered in context. This is relevant both to the motions and to the issue of an Isaac

Wunder order. The history of the appellants' litigation may be seen in some of the recorded judgments. The litigation is

convoluted as some cases commence before others are concluded and there are overlapping cases and appeals.

18. The Navan zinc and lead ore body lies beneath the lands of Nevinstown and adjacent townlands to the north of the

river Blackwater in County Meath, and extends under the river and under

the lands of Whistlemount and adjoining townlands to the south of the river. The late Mr. Patrick Wright owned about

120 acres of the lands of Nevinstown and the minerals beneath the lands.

Tara Exploration and Development Co. Ltd. carried out, on its own behalf and on behalf of Tara Mines Ltd.,

extensive drilling for minerals in the Nevinstown area during the late 1960s and

1970s. Rich deposits of lead and zinc were discovered on Mr. Patrick Wright's land. Tara sought to purchase the

mineral rights from Mr. Wright. In March, 1971 Mr. Thomas C. Roche and

Mr. Thomas J. Roche offered a price to Mr. Wright which was accepted. Mr. Wright, at the request of the Messrs

Roche conveyed the lands to Bula. Mr. Wood joined later. The Minister

sought to acquire compulsorily the minerals under the lands. Mr. Thomas C. Roche and Bula challenged the

compulsory acquisition, successfully: Roche v. Minister for Industry and

Commerce [1978] 1 I.R. 149.

19. Subsequently there were negotiations and Bula Holdings and the Minister entered into a memorandum of

agreement in principle on the 26th July, 1974. The Minister agreed in principle to

acquire 49% of the share equity of Bula but to give power of attorney over the voting rights of 21% of the share equity

to Mr. Roche Sr., or his nominees. The agreement in principle was signed

by the Minister, Mr. Thomas C. Roche, Mr. Wright and Mr. Wood. The agreement envisaged by that memorandum

was entered into on the 12th December, 1975.

20. The receiver was appointed receiver over the ore body located in Nevinstown, originally owned by Bula, on the

8th December, 1985, pursuant to powers contained in debentures created

between the banks and Bula. Since then the receiver has been engaged in litigation brought by the appellants. This

meant that the receiver was unable to sell the ore body until approval was

given by the High Court on the s.316 application: In the matter of Bula Ltd. (In Receivership) [2002] 2 I.L.R.M.

513, judgment given by Murphy J. on the 20th June, 2002.

21. The proceedings brought by the appellants included the "Tara proceedings". After 277 days at hearing, in a

reserved judgment, Lynch J. gave judgment in Bula Limited (In Receivership)

and others v. Tara Mines Limited and others (Unreported, High Court, 6 February, 1997), "the Tara proceedings".

The plaintiffs, and ultimately the appellants, in that case were the

appellants in this case, together with Mr. Thomas C. Roche and Mr. Thomas J. Roche. Tara Mines Ltd. and

Outokumpu Oy, who are defendants in this case, were the first and second

defendants in that case. The third to fourteenth defendants were at various times directors of Tara Mines Limited

and/or Outokumpu Oy. The Minister for Energy was the fifteenth defendant.

The sixteenth defendant was a civil servant in the Department of Energy who was nominated by the Minister to be a

director of Bula Limited. Lynch J. commenced his judgment, delivered on

the 6th day of February, 1997, as follows:-

"This case arises out of circumstances which commenced more than a quarter of a century ago. It has its origin in

business dealings undertaken in the hopes of arriving at a very large crock of gold, which in the end of the day turned

into a bottomless pit of debt and misery for those who most avidly sought the crock of gold. It is from that bottomless

pit that the remaining Plaintiffs in this action hope by this litigation to escape.

The statement of claim contains such a multiplicity of allegations and claims many of which have been abandoned and

withdrawn at various stages in the course of the trial, that I think it is desirable that I should state at the outset in broad

terms what is the essence of the Plaintiffs' claim.

The Plaintiffs allege against the first fourteen Defendants that in spite of a provision in the first Defendants lease from

the Minister that they should co-operate with the Plaintiffs as owners of the neighbouring mine those Defendants

nevertheless wrongfully conspired together and sought to inflict and did in fact inflict economic loss and damage to the

Plaintiffs to such an extent as to ruin the Plaintiffs in order to enable the first Defendant to acquire the Plaintiffs 1/6

share approximately of the Navan Zinc and Lead Ore Body at an undervalue with a view to working the same for their

own benefit along with their own 5/6 share approximately of that ore body. The Plaintiffs allege against the fifteenth

and sixteenth Defendants that by virtue of agreements made with the Plaintiffs and other agreements made with the

first Defendant the fifteenth and sixteenth Defendants had power and were under an obligation to the Plaintiffs to

prevent the first fourteen Defendants from acting in the manner aforesaid but that the fifteenth and sixteenth

Defendants not only failed to prevent the first fourteen Defendants from so acting but on the contrary encouraged and

assisted them in so acting.

All of these claims so made by the Plaintiffs against the Defendants are vehemently denied by all the Defendants who

allege on the contrary that the failure of the Plaintiffs' enterprise was due to the Plaintiffs own incompetence and

unreasonable conduct leading to commercial errors of an irrational and disastrous nature."

The High Court dismissed the plaintiff's claims. An appeal from the judgment of Lynch J. was heard by the Supreme

Court (Hamilton C.J., Barrington J., Keane J.). Keane J. delivered judgment on the 15th January, 1999. While there

had been many grounds of appeal filed, on the hearing of the appeal only on two grounds were advanced. The

Supreme Court held that neither ground was established and dismissed the appeal. Keane J. concluded:-

"It is tragic that this venture, in which the plaintiffs invested so much time, energy and resources has ended with

litigation on so catastrophic a scale."

22. Bula Ltd. v. Tara Mines Ltd. (No.6) [2000] 4 I.R. 412 was an application by the appellants against that

judgment of the Supreme Court, seeking to set it aside on the grounds of

objective bias. The application was unsuccessful and was dismissed.

23. Another set of proceedings, In Bula Ltd. (In Receivership) and ors. v. Laurence Crowley and Ors.

(Unreported, High Court, Barr J., 29th April, 1997), an action between Bula Ltd.

(In Receivership), Bula Holdings, Thomas C. Roche, Thomas J. Roche, Richard Wood and Michael Wymes v.

Laurence C. Crowley, Northern Bank Finance Corporation Ltd., Allied Irish

Investment Bank Ltd. and MacKay A. Schnellmen Ltd., has been referred to as "the banks proceedings". In this action

the plaintiffs originally sought damages and other relief on the basis of

alleged acts of negligence, breach of contract, deceit and breach of trust of the defendants.

24. In the banks proceedings Bula was given leave to introduce new claims against the banks and the receiver based on

the Statute of Limitations. Barr J. directed that a preliminary issue should

be tried.

25. On the 18th June, 1997, Barr J. gave a ruling on conditions, on an application by the appellants, to adjourn the

proceedings pending the determination of the Supreme Court in the Tara

proceedings. One of the conditions was that:-

"The [appellants] and each of them undertake that they will not mount further proceedings against the defendants (or

any of them, their servants or agents) in respect of any alleged wrong doing of which they are presently aware or in the

opinion of the court ought now to be aware."

26. In Bula Ltd. (In Receivership) and Ors v. Laurence Crowley and Ors.

(Unreported, High Court, 29th April 1997) Barr J. commenced his ruling by stating:-

"These proceedings comprise the second of two primary actions in a vast panoply of litigation which is unique in Irish

legal history as to duration, complexity, range and multiplicity of issues. In essence it revolves around an intended lead

and zinc mine near Navan, Co Meath. The prime mover at the heart of this litigation is Mr. Michael Wymes, who at

all material times was managing director of Bula Limited, owner of the proposed mine, (Bula), and also through a

holding company a major shareholder therein. He orchestrated the affairs of Bula from its incorporation in 1971 and in

that regard was instrumental in launching on its behalf and other interested parties the primary actions to which I have

referred. The Bula mining lands adjoin property which comprises a lead and zinc mine operated by Tara Mines

Limited (Tara). The first action (Bula I) was in essence against Tara and the State. The trial before Lynch J continued

for 277 court days. The principal witness for the plaintiffs was Mr. Wymes and he gave evidence for about 120 days.

An enormous quantity of documents comprising upwards of a hundred box files were introduced in evidence. The

learned trial judge delivered judgment (the judgment) on 6 February, 1997 in which he rejected the case made on

behalf of the plaintiffs against both sets of defendants and he dismissed the action against all of them."

Barr J. referred to the decision by Lynch J. as Bula I, and the application before him as Bula II, which was brought

by the same plaintiffs as in Bula I and was against Mr. Crowley (the receiver) and the banks which provided funds for

Bula's activities. Barr J. held that the findings of Lynch J. in his judgment relevant to any issue in the banks

proceedings were not reviewable. He stated:-

"As to findings made by Lynch J. in the judgment; I have ruled that findings made by him which are relevant to any

issue in the present action are not reviewable herein and the parties are not entitled to re-open such matters. I reached

that conclusion on the ground that, although the parties are not the same in both actions, the facts relating to each are

intimately intertwined; that some factual matters and findings may be common to issues in both actions; that many

such matters entailed an assessment by Lynch J. of a huge volume of evidence adduced in course of a trial of

monumental length and if re-opened would add greatly to the duration and expense of the present trial; and that, at

least until the outcome of the appeal to the Supreme Court in Bula I is known, there was no acceptable reason in

justice to revisit such findings and to permit the plaintiffs to challenge them. I am satisfied that for the foregoing

reasons it is not in the interest of justice to re-open relevant findings made by Lynch J. in Bula I and that it would be

an abuse of the process of the court to do so."

He held:-

"I am satisfied that there are three questions which should be addressed by the court in determining an issue regarding

the status of facts and/or law found by a court of competent jurisdiction in earlier proceedings. In terms of the instant

case; first, are the plaintiffs seeking to re-open in Bula II an issue of fact or law which was decided against them in

Bula I? Secondly, was the finding in question necessary to the determination by Lynch J. of the issue in Bula I to

which it relates? Thirdly, is the finding in question relevant to an issue raised by the plaintiffs in Bula II? These

questions comprise the yardstick against which the status of each finding of fact or law made by Lynch J. in Bula I

must be assessed in determining whether or not it has binding effect in Bula II."

On the particular issue in that case, he ruled that the finding of Lynch J., regarding the payment of interest by the State

to the Northern Bank Finance Corporation amounted to a finding that it was not an unlawful payment or one which

was secret or unauthorised by Bula and that it was binding on the plaintiffs in that action. Barr J. ordered that the

banks proceedings go to hearing.

Dealing with the concept of the abuse of process Barr J. held:-

"The concept of abuse of the process of the court applies irrespective of privity. When an issue has been finally

determined by a court of competent jurisdiction it is an abuse of the process of the court to seek to have it re-litigated

in new proceedings."

27. When the banks proceedings resumed on the 10th June, 1997 it was conceded on behalf of the plaintiffs that the

claims made in the banks proceedings (other than the Statute of Limitations

claims) could not succeed unless Bula was successful in its appeal in the Supreme Court on Bula I. Counsel for the

plaintiffs made an application for an adjournment pending the outcome of the

Supreme Court appeal on Bula I. The banks and receiver opposed the application. On 18th June, 1997, Barr J. held

that the application ought to have been made at the commencement of the

trial. He stated that he had no doubt that a conscious decision was made to proceed with the preliminary issue on the

Statute of Limitations in the hope that the plaintiffs might be successful and

to postpone the application for an adjournment to await the outcome of the preliminary issues. Barr J. stated that a

manipulation of litigation in that way was itself an abuse of the process of the

Court. Having considered the matter Barr J. granted an adjournment to await the outcome of the plaintiffs' appeal to

the Supreme Court on Bula I, on specific terms relating to expedition of the

proceedings. He further stated that if the Bula I appeal were dismissed without overturning material facts found by

Lynch J. that the plaintiffs' primary claims in the banks proceedings should

stand dismissed. Further, each of the plaintiffs were to undertake that they will not mount further proceedings against

the defendants or any of their servants or agents in respect of any alleged

wrong doing of which they are presently aware or in the opinion of the Court ought now to be aware.

28. As stated previously, the appellants were not successful in the Supreme Court. The Bula I appeal was dismissed

on the 15th January, 1999. The appellants then applied to have that order

of the Supreme Court set aside, which application was refused: as referred to previously.

29. After the judgment of Lynch J. on the 6th February, 1997 in Bula I, and at about the time when the banks

proceedings were commencing, Bula Ltd. (in receivership) issued proceedings

against the receiver, Laurence Crowley, on the 13th March, 1997, claiming an order directing the receiver to deliver up

possession of the Bula lands, and damages for trespass, detention,

conversion, breach of contract, negligence, and/or breach of duty, intimidation, conspiracy, acting in excess of

authority, abuse of process, interest and costs. A notice of intention to proceed in

the action was served, dated the 14th May, 1999, and a statement of claim delivered on the 21st June, 1999. The

plaintiff claimed that the banks did not issue proceedings within the time limit

pursuant to the Statute of Limitations to claim a sale but relied on the receiver to sell the property and pay them the net

proceeds of the sale. The banks issued proceedings against Bula on the

4th April, 1997. Proceedings seeking well charging orders were issued on the 22nd April, 1997 and served on the 30th

March 1998. The plaintiff claimed that as a consequence the receiver's

title to the land and any right to execute for repayment of principal and interest was extinguished: from the 19th

February, 1992, for the Northern Bank Finance Corporation, from the 31st

October, 1996, for Ulster Investment Bank; and from the 19th October, 1995, for Allied Irish Investment Bank. The

plaintiff claimed it was entitled to have the receiver discharged, the

mortgages and debentures cancelled, assets returned, and documents of title returned. On the 5th July, 1999 the

receiver brought a notice of motion seeking to strike out the proceedings on the

basis that there was no disclosure of a reasonable cause of action, and/or that it was frivolous or vexatious, and that it

was an abuse of process, and that the issues raised could have been, but

were not, raised in the banks proceedings.

30. Carroll J. held that the motion by the receiver was in effect an application to enforce the undertaking and that it

would be a denial of justice to the receiver to release Bula from the

undertakings given. A permanent stay was put on the action. As the receiver succeeded on this ground the Court did

not rule on other grounds.

31. The banks proceedings came on for hearing again on the 16th January, 2001. In Bula Ltd. (In Receivership) and

Ors. v. Crowley and Ors (Unreported, High Court, Barr J., 1st

February, 2002), the High Court dismissed the remaining claims of the plaintiffs. In that judgment Barr J. referred to

the fact that the receiver had sought to advance the sale but that he:-

"… has been frustrated in his efforts by persistent, unsuccessful litigation orchestrated by the sixth defendant who has

demonstrated that he is implacably opposed to the sale of the potential Bula mine in any circumstances and is

determined to place every possible obstacle in the way of the banks obtaining the benefit of their securities through

such sale."

The sixth defendant was Mr. Wymes.

32. After the Supreme Court decision in the Tara proceedings the receiver sought to sell the ore body. On the 9th

May, 2001 he entered into a contract for sale to Tara Mines Ltd.

33. The receiver applied to the High Court for directions pursuant to s.316 of the Companies Act, 1963, "the s.316

application". After a seven day hearing, on the 20th June, 2002, the High

Court approved the sale pursuant to the contract: In the Matter of Bula Ltd. [2002] 2 I.L.R.M. 513. The appellants

applied to the High Court for a stay on the 12th July, 2002 on the s.316

application, which was refused. The sale was then completed.

34. On the 23rd July, 2002 further proceedings were commenced by the appellants against the receiver and Tara

seeking to overturn the sale and obtain interlocutory reliefs. These were

refused by the High Court on the 1st August, 2002. On the 5th November, 2002 the appellants brought a motion

seeking to amend the order of the High Court opposing the sale on the 20th

June, 2002.

35. The appellants appealed the judgment in the s.316 application and the judgments of the 12th July, 2002, the 1st

August, 2002, and the 5th November, 2002.

36. These four appeals were considered in the judgment Bula Ltd. v. Crowley (No.4) [2003] 2 I.R. 430, they were

part of a series of seven appeals to the Supreme Court at that time. Part

of the litany of litigation. The fourth appeal was the appeal against the High Court order on the s.316 application. All

appeals were dismissed. I shall return to this appeal at a later stage in this

judgment.

37. In Bula Ltd. v. Crowley (No.3) [2003] 1 I.R. 396 the issue raised related to the Statute of Limitations 1957. The

plaintiffs claimed that the title of the banks to the secured lands and to the

principal and interest secured by the mortgages and debentures had been extinguished as the banks had not brought an

action to recover the land or an action claiming sale of the land within the

twelve year period prescribed by the Act of 1957. The Supreme Court dismissed the appeal of Bula, holding that there

was no adverse possession within the Statute of Limitations Act, 1957

so that Act would not apply; that on appointment the receiver went into possession of the assets of Bula for the benefit

of the banks and so there was no possession contrary to the banks.

38. These Proceedings

These proceedings, the plenary summons and statement of claim which have been referred to earlier in the judgment,

were brought by the appellants. Although many reliefs were sought , the key reliefs sought against the receiver are:

(a) a declaration that the receiver has purported to sell the property known as the Bula mine in breach of duty;

(b) a declaration that the receiver was and is prohibited from acting as a receiver and manager; and

(c) an injunction restraining the receiver from dealing with the proceeds of the purported sale pending the

determination of the proceedings.

39. The receiver, the third and fourth defendants, and the banks, have brought the motions described previously, to

dismiss or strike out these proceedings. On the 10th June, 2005 the High

Court (Murphy J.) held:-

"The court is, however, satisfied that even though not appropriately particularised all of the plaintiffs claims have

already been dealt with by the courts and are res judicata.

What remains are indeed vague, unparticularised allegations without foundation. It is an abuse of process to say that

the appropriate foundation and particulars should await discovery."

Murphy J. dismissed these proceedings as constituting an abuse of process of the Court and made an order restraining

the appellants and each of them from instituting any further proceedings against the defendants without prior leave of

the Court.

40. This then is the context of the appeal. The primary issue is the nature of the s.316 proceedings and their

relationship, if any, to these proceedings.

41. The appellants have withdrawn their claims to set aside the judgments of the Courts on the s.316 application.

However, it is relevant that they made the claim even though that claim is no

longer maintained. This was a correct decision by the appellants in my opinion in light of Article 34.4.6˚ of the

Constitution of Ireland which states:-

"The decision of the Supreme Court shall in all cases be final and conclusive."

The relevant jurisprudence supports the decision of the appellants not to proceed with these claims. However, the

existence originally of these claims in the pleadings and before the High Court implies that to succeed in the

proceedings the s.316 application judgment has to be set aside. This infers similarity between the two proceedings.

42. Section 316 application

In the s.316 application the receiver sought the directions of the Court in relation to the sale of the Bula mine. By the

20th March 2002 the receiver made an application to the High Court pursuant to s.316 of the Companies Act, 1963.

The receiver sought the following relief:-

"(1) an order pursuant to s.316 of the Companies Act, 1963 for directions in connection with the contract entered into

for the sale of the property known as the Bula Mine, Navan, Co. Meath … by Bula Ltd. (In Receivership) to Tara

Mines Ltd. on 9th May 2001;

(2) further or in the alternative, an order approving the sale of the said property to Tara Mines Ltd. on the terms set

forth in the said contract and/or order granting and/or liberty to Bula Ltd. (in receivership) to complete the said

contract."

43. The appellants were parties, as was the receiver and Tara Mines Ltd. Mr. Wymes filed an affidavit on behalf of

the appellants objecting to the sale, and other documentation filed also

objected to the sale.

44. The s.316 application was heard over seven days in the High Court and a reserved judgment was given. There was

a hearing over several days in the Supreme Court and a judgment upheld

the High Court decision. The Court approved the sale, the contract has been completed, the property conveyed and

title has passed to Tara Mines Ltd.

45. Section 316 of the Companies Act, 1963, as amended, provides that when a receiver of the property of a company

is appointed under the powers contained in any instrument, named

persons may apply "to the court for directions in relation to any matter in connection with the performance or

otherwise by the receiver of his functions. …" These words describe a wide

jurisdiction - for directions relating to any matter in connection with the performance of the receiver. In the s.316

proceedings brought, to which the Court was referred, the receiver sought

directions. Thus both the statute and the motion in the proceedings relate to a broad jurisdiction. Thus the duty of care

of a receiver may be addressed. It was for the Court to consider

whether the receiver had taken all reasonable care to obtain the best price reasonably obtainable for the mine at the

time of the sale. Of course each case depends on its own circumstances.

The process was considered carefully in the s.316 application in the High Court and in the Supreme Court. The very

analysis of the process went to the root of considering whether the receiver

had exercised his duty of care. While the s.316 application was necessarily addressing the statutory requirements on

that application the Courts were fundamentally analysing the exercise of the

duty of care by the receiver. Thus while the conclusion of the judgment in that case specifically addressed the statute

and the circumstances it was an analysis of the duty of care of the receiver in

the circumstances.

46. I am satisfied that issues relevant to the approval of the Court for the sale should be raised in the s.316 application.

This is emphasised in this case where the s.316 application sought, firstly,

directions in connection with the contract for sale, and secondly, an order approving the sale. This indicated the

essence of the application as being a general request for directions regarding the

sale. Consequently, no issue relevant to the sale by the receiver may be raised at a later stage.

47. The appellants, in the s.316 proceedings, made allegations in Mr. Wymes' main affidavit. Subsequently these were

withdrawn. On appeal to this Court there was an indication of a wish to

introduce the allegations on the appeal, but this was not proceeded with. The appellants are now seeking to bring these

and other issues back before the courts in these new proceedings. I am

satisfied that a party cannot make claims in one set of proceedings, not proceed with them, and then after a final order

is made in court, seek to bring further proceedings with such claims.

48. The position of the banks

The position of the banks in these proceedings was carefully scrutinised by the High Court. The learned trial judge

referred to the s.316 application and pointed out that the purpose of the s.316 application was to allow the parties to

raise objections. He considered that it was appropriate that the objections re Navan etc. should have been proceeded

with. It had been claimed that the effect of the arrangements depressed the price so that the price obtained was not the

best price. The learned High Court judge held that this was clearly relevant to the s.316 application, and he found that

it was pleaded in the s.316 application. He held:-

"… the issue was not proceeded with because there was no evidence to support it. The issue cannot be re-litigated in

these proceedings for three reasons.

Firstly, it is an abuse to re-litigate not only matters which were determined but also issues which were and could have

been determined. … Secondly, there is, …, no adequate no proper factual basis for this issue to proceed.

Thirdly, the Supreme Court was not informed that the matter pleaded and not proceeded with, would be re-litigated. It

would appear that there was no reservation in the Supreme Court."

I agree with and affirm the findings of the learned High Court judge.

49. Having considered the pleadings in these proceedings I am satisfied that in essence the issue in these proceedings is

the sale of the mine. These proceedings are an attempt to re-litigate

previous litigation. This is, in my opinion, an abuse of process.

50. The essence of the appellant's claim in these proceedings is that the receiver accepted the price of £27.5m, and the

appellants claim that the value of the assets was several times this sum,

and the appellants claim that because that value was not sought or obtained by the receiver, the appellants sustained

losses. They have brought these proceedings. The appellants claim that the

receiver satisfied the requirements of s.316 but failed in his duty to them. Further, that the receiver had a conflict of

interest because of the involvement of relatives of his in Navan Mining Plc.

and the involvement of KPMG with Navan Mining Plc. Further that the interests of Navan Mining Plc. are grounds for

serious disquiet and the appellants seek to be compensated.

51. However, in the s.316 application the appellants submitted that the sale should not take place, which is essentially

what the appellants' claim in these proceedings. The issues raised in these

proceedings have been aired before, or could have been. For example, in the s.316 application Mr. Wymes made

objections relating to the involvement of Navan Mining Plc. with Bula's banks

and in the security granted. However, it was conceded that Mr. Wymes could not maintain the ground, and the matter

was withdrawn as an objection. From the pleadings and affidavit of Mr.

Wymes in these proceedings it appears that a basis of the claim against the banks is the Navan involvement, which

issue has been raised by Mr. Wymes in earlier proceedings. The banks have

always maintained, and it has been deposed on their behalf, that no arrangements of the kind alleged by Mr. Wymes

exist.

52. It is well established under the Constitution and the law that there must be finality in litigation. It is not open to a

party to litigate and re-litigate issues.

53. There has been a large volume of litigation relating to the conduct of the receiver. I have set out some of the

proceedings previously in establishing the context of this appeal. Yet it is now

once again sought to revisit the sale and related matters.

54. The claims in these proceedings are couched in vague terms. I have a keen sense of being on a fishing expedition.

55. In general it is not appropriate to draft pleadings in vague terms. However, if fraud is alleged that must be done

with particularity. The issue of fraud is raised but there are no detailed

allegations. The learned High Court judge held that:

"The allegations were framed in terms which were not particularised and which were vague and hint at the previous

orders of the Supreme Courts being obtained by fraud."

Further, the High Court found that the evidence referred to in Mr. Wymes' affidavit relating to a conflict of interest the

Navan involvement, was not sufficient to ground a claim for fraud. The High Court pointed out that conflict of interest

was relevant to the s.316 application and that the courts had heard such evidence as there was. I would endorse the

analysis and determination of the High Court on this aspect of the case also.

56. Res judicata

I am satisfied that the principle of res judicata applies. This applies to claims made by the appellant in the s.316

proceedings and to claims which could have been made and determined in the earlier proceedings. As it was said in

Henderson v. Henderson [1843] 3 Hare 100 at pp. 114 and 115:-

"I believe I state the rule of the Court correctly, when I say, that where a given matter becomes the subject of litigation

in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring

forward their whole case, and will not (except under special circumstances) permit the same parties to open the same

subject of litigation in respect of matters which might have been brought forward only as part of the subject in contest,

but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted

part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was

actually required by the parties to form an opinion and to pronounce a judgment, but to every point which properly

belonged to the subject of the litigation, and which the parties, exercising reasonable diligence might have brought

forward at the time."

This principle is part of Irish law and is applicable in this case. Of particular relevance is the aspect of the principle

which exists to protect respondents from successive applications. This Court has on several previous occasions

approved, as I do now, the following from Woodhouse v. Consignia Plc. [2002] 1 W.L.R. 2258 at p.2575:-

"But at least as important is the general need, in the interests of justice, to protect the respondents to successive

applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson (1843) 3

Hare 100 that, in the absence of special circumstances, parties should bring their whole case before the court so that all

aspects of it may be decided (subject to appeal) once and for all is a rule of public policy based on the desirability, in

the general interest as well as that of the parties themselves, that litigation should not drag on for ever, and that a

defendant should not be oppressed by successive suits where one would do."

57. These proceedings seek in essence to re-litigate the s.316 application. The order sought under s.316 was for

directions as to the sale. That is the appropriate time to raise all issues relevant

to the sale. All such issues "properly belonged to" (Henderson v. Henderson) the s.316 application. Consequently,

the appellants may not re-litigate the issues in these proceedings. The

appellants were parties to the s.316 application, they took an active part in the litigation, it was open to them to raise

issues relevant to the sale. The fact that the form of the s.316 application

and these proceedings is different is not relevant. The tyranny of the form has been overcome in the common law legal

system for over a century. The issue is the nature of the case. In these

proceedings there is an attempt to raise issues which were raised, or should have been raised, on the s.316 application.

In these proceedings the appellants are once again attacking the receiver

and his right to sell. This has been the subject of litigation for over a decade, and the issue has been finalised. Issues

relevant to the sale should be raised on that application.

58. Counsel on behalf of the appellants submitted that the s.316 proceedings were conducted speedily in the High

Court, that it gave a party little time to prepare and present a claim. This is not

a persuasive argument. If ever there was a party well versed in the facts of his case and in litigation it is Mr. Wymes.

Obviously the issue of directions in relation to a contract is not something

which should be rushed. However, it is a matter which should be dealt with attentively as the very nature of a sale

requires that it not languish in the courts for years. A court should facilitate

parties in matters relating to a contract and sale. It is for that attention and supervision that the court's direction is

sought. I am satisfied that the appellants had a fair opportunity to bring their

objections before the Court in the s.316 application.

59. Access to Court

There is a constitutional right to access the courts. However, it is not an absolute right. With that right comes

responsibility. Circumstances may arise where a person loses the right to initiate proceedings. For example, if there has

been an excessive amount of litigation initiated by a person, or on his behalf, the courts have an inherent discretion,

and indeed a duty, to review the use of court time. Court time is limited and there is a duty to use it justly. The history

of the appellants' litigation has been set out in part in this judgment. The entire history is not described but it gives a

broad brush description of the situation. As recited earlier, the litigation of the appellants has been described as "a vast

panoply of litigation which is unique in Irish legal history as to duration, complexity, range and multiplicity of issues":

Barr J. in Bula Limited (In Receivership) & Ors v. Laurence Crowley and Ors. (Unreported, High Court, 29th

April, 1997). That observation was made more than 10 years ago, since when the litigation of the appellants has

continued apace.

60. Isaac Wunder Order

In light of the history of the litigation by the appellants, some of which has been set out herein, I would affirm the

order of the High Court, that the appellants and each of them be restrained from instituting any further proceedings

against the receiver, Tara Mines Ltd, Outokumpu Oy, or the banks, without the prior leave of the High Court. This is

not a bar to bringing litigation. It does not exclude the appellants from access to the courts. It establishes a filtering

process, if they wish to bring proceedings against the named persons they must apply to the High Court for leave to

issue the proceedings.

61. Conclusion

I would confirm the order of the High Court and dismiss the appeal. These proceedings are an abuse of process. They

seek to re-litigate matters which were before the courts in the s.316 application, or which could have been raised in

that application but were not. The appellants are bound by the determination in the s.316 application. The issues have

been determined finally. I would dismiss the appeal for the reasons given. The dream of a future for the mine has

turned to dust. Many have been covered with that dust. The dream is over. There is no escape from that fact. No

amount of litigation can change the situation.

I would also make an order that the appellants be restrained from issuing further proceedings against the first, third,

fourth, fifth, sixth and seventh named defendants without the prior leave of the High Court.