Supreme Court dismisses bankrupt's divorce application due to lack of locus standi under Irish law.

THE SUPREME COURT

[Appeal Nos. 328, 373 & 485/09]

Denham C.J.

Laffoy J.

Charleton J.

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

AND

IN THE MATTER OF THE FAMILY LAW ACT 1995

BETWEEN

A.A.

APPLICANT/RESPONDENT

AND

B.A.

RESPONDENT/APPELLANT

AND BY ORDER THE OFFICIAL ASSIGNEE IN BANKRUPTCY

RESPONDENT

IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996

BETWEEN

B.A.

APPLICANT/APPELLANT

AND

A.A.

RESPONDENT/RESPONDENT

AND BY ORDER

C.D.

NOTICE PARTY

Judgment of Ms. Justice Laffoy delivered on the 9th day of November, 2015

Introduction

1. The only issue addressed in this judgment is whether the moving party, B.A., has locus standi to bring the application which is

before this Court. The issue as to the locus standi of B.A. arises because he has been adjudicated a bankrupt in this jurisdiction. He is

also subject to bankruptcy proceedings in the United States of America (the U.S. Bankruptcy). The proceedings in which the

application is brought are matrimonial proceedings. Because of the novelty of the issue as to the locus standi of B.A. in this context in

this jurisdiction, it is necessary to consider the background to the application now before this Court in some detail.

Background

Matrimonial proceedings

2. In 1997 A.A., the wife of B.A., initiated proceedings against B.A. in the High Court under the Judicial Separation and Family Law

Reform Act 1989 and the Family Law Act 1995 (Record No. 1997/No. 58M). Those proceedings came on for hearing in the High Court

on 11th October, 2001 and had been at hearing for twenty two days on 20th December, 2001. On the following day, 21st December,

2001, counsel for the parties informed the Court that a settlement had been reached, subject to the satisfaction of the Court, on the

terms of a consent which had been reduced to writing. On the previous day, 20th December, 2001, B.A. had instituted proceedings

against A.A. in the High Court under the Family Law (Divorce) Act 1996 (Record No. 2001/No. 168M). The order of the High Court

(O’Higgins J.) made on 21st December, 2001 (the 2001 Order) relates to both A.A.’s action for judicial separation and B.A.’s action for

divorce. A photocopy of the consent document headed “Terms of Settlement” executed by both A.A. and B.A. on 21st December,

2001 is annexed to the 2001 Order.

3. There are two components of the curial part of the 2001 Order which require to be distinguished. First, having recited, inter alia,

that it had heard oral evidence of the applicant, B.A., and the respondent, A.A., in the proceedings initiated on 20th December, 2001,

and “being satisfied with regard to the requirements of s. 5(1) of the Family Law (Divorce) Act 1996”, the Court granted “a Decree of

Divorce in respect of the marriage” of B.A. and A.A. That component of the order was distinct from the remainder of the order and it

did not bear a paragraph number. In the second component, having referred to the fact that the “Consent” (represented by the

photocopy of the Terms of Settlement being annexed to the order) had been read, the Court made an order by consent which

contained ten paragraphs, numbered 1 to 10. Each of those paragraphs, with the exception of paragraph 10, referred to a paragraph

in the “Consent” (i.e. in the Terms of Settlement), so that each requires to be read in conjunction with the relevant provision of the

Terms of Settlement. In general terms, each of paragraphs numbered 1 to 7 of the consent component of the 2001 Order related to

property or to rights to property. For example, paragraphs 1 and 2 provided for the transfer of two properties in the Dublin area to

A.A. and paragraph 4 provided for the payment of a lump sum by B.A. to A.A. in two tranches in May 2002 and June 2003. As regards

the remainder of the paragraphs, paragraph 8 dealt with costs and provided that B.A. would be liable for A.A.’s costs of both

matrimonial actions, the costs to be taxed in default of agreement. Paragraphs 9 and 10 dealt with formalities, in that paragraph 9

gave the parties liberty to apply and paragraph 10 provided that the consent be received and filed and be deemed to be part of the

2001 Order.

A.A.’s 2006 Application

4. On 15th December, 2006 a notice of motion was filed in the High Court on behalf of A.A. in the conjoined matrimonial actions

seeking, inter alia, orders in the following terms:

“1. An order setting aside the Orders made on 21st December, 2001 by Mr. Justice O’Higgins in the above-entitled

proceedings and each of them and, in particular, the Orders referred to at paragraphs 1, 2, 3, 4, 5, 6, 7 – 10 of the

said Order.

2. In the Alternative, an Order setting aside the Orders made on 21st December, 2001 by Mr. Justice O’Higgins in

the above entitled proceedings, and in particular, the Orders referred to at paragraphs 2, 3, 4, 5, 6, 7 – 10 of the

said Order.

3. An Order re-entering the above entitled proceedings and each of them for the purpose of making further Orders

pursuant to the provisions of the Family Law (Divorce) Act 1996, including Orders pursuant to ss. 13, 14, 15, 16,

17, 19. 21 and/or 22 of the said Act.”

The grounds relied on by A.A. in support of the foregoing relief, as set out in the notice of motion, all related to assets of B.A. and

alleged that –

(a) B.A. had “failed to make a frank and complete disclosure in relation to his assets”,

(b) B.A. had “provided information which he knew was false and incomplete for the purpose of understating the

value of the assets to the intent that [A.A.] would be misled as to the value of such assets”, and

(c) B.A. had “misled [A.A.] and the Court both in his evidence and in discovery as to the fact and extent of his

beneficial ownership of the assets referred to in the grounding Affidavit as was his intent”.

5. Two procedural matters in relation to that motion, which will be referred to as “A.A.’s 2006 Application”, need to be adverted to.

First, by order of the High Court (Abbott J.) made on 29th July, 2008, on the application of B.A., C.D., the then current wife of B.A.,

was joined as a notice party to A.A.’s 2006 Application. Secondly, C.D. was given short service by the High Court on 3rd December,

2008 to bring a motion returnable for 9th December, 2008 seeking that A.A.’s 2006 Application should be dismissed. Although not

disclosed in the notice of motion, it is clear from para. 2.4 of the judgment of the High Court delivered by Irvine J. (the trial judge) on

10th June, 2009 (the 2009 Judgment) considered later that the application by C.D. for dismissal was on the basis that A.A.’s 2006

Application was misconceived. Later in the 2009 Judgment (at para. 11.2) it emerges that the point being made by C.D. was that the

High Court did not have jurisdiction to grant any of the reliefs sought by A.A. where the procedure adopted was by way of a motion.

Rather, C.D. argued, what was effectively an application to set aside what it was contended was a final order of the High Court could

only be pursued in fresh plenary proceedings or by way of appeal. It was pointed out in the 2009 Judgment that C.D.’s argument “was

thereafter even more belatedly adopted by [B.A.’s] legal team”.

6. In fact, 9th December, 2008 was the first day of the hearing of A.A.’s 2006 Application. The hearing before the trial judge in the

High Court continued for twenty one days and led to the 2009 Judgment. A.A., B.A. and C.D. were represented by counsel at the

hearing.

Decision of the High Court

7. The order of the High Court which reflected the outcome of the 2009 Judgment was made on 24th July, 2009 (the 2009 Main

Order). In the 2009 Main Order, the reliefs sought at paragraphs 1 and 3 of the notice of motion were refused. However, an order was

made granting the relief sought at paragraph 2 in the following terms:

“An order granting the relief sought at paragraph 2 in the said Notice setting aside that part of the Order of O’Higgins J.

made on 21st December, 2001 being orders made ancillary to the decree of divorce, recited at paragraphs 1, 2, 3, 4, 5, 6

and 7 of the Order and substituting the following ancillary orders so that proper provision may be made for the parties and

their dependents as of the 21st December, 2001.”

Notwithstanding that terminology, in reality, as counsel for A.A. submitted, the consent component of the 2001 Order was varied,

rather than set aside. In any event, the principal difference between the consent component of the 2001 Order and the substituted

ancillary orders set out in the 2009 Main Order related to paragraph 4 of the former, for which there was substituted an order

providing for an additional tranche of lump sum, in addition to the two tranches payable under and at the times provided for in the

2001 Order, which additional tranche was to be payable with immediate effect. The only other element in the 2009 Main Order which

flowed from the judgment delivered on 10th June, 2009 was that B.A. was ordered to pay A.A.’s costs of the proceedings on a

solicitor and client basis. It was also expressed that no order was made in respect of C.D.’s costs.

8. Solely for the purpose of explaining why the trial judge made orders refusing the relief sought by A.A. under paragraphs 1 and 3 of

A.A.’s 2006 Application, but granting relief under paragraph 2 thereof, I propose to point to the manner in which those decisions were

rationalised in the 2009 Judgment, but emphasising that I have formed no view as to whether the reasoning and conclusions were

correct, because it would be improper to do otherwise on this application. Having considered paragraph 3 and the statutory provisions

invoked in that paragraph, the trial judge concluded (at paras. 12.23 to 12.32 of the judgment), that there was no jurisdiction to

grant the reliefs sought in that paragraph to A.A. The trial judge then went on to deal with the relief sought at paragraphs 1 and 2 of

A.A.’s notice of motion. The approach adopted by the trial judge in relation to those reliefs is explained in paragraph 12.34 of the

judgment, in which she stated:

“[A.A.] advised the Court that the only difference between the relief sought at paras. 1 and 2 of the notice of motion

was that the relief sought at para. 1 sought to set aside the entire order of the Court made on 21st December, 2001,

including the decree of divorce with para. 2 seeking the same relief with the exception of an order setting aside the

divorce. On reading the notice of motion, however, the decree of divorce itself was not, as is suggested by the relief

sought, contained in para. 1 of the aforementioned order. Paragraph 1 deals with one of the financial orders under s. 14

of the Act of 1996. The decree of divorce was referred to in the body of the court order. Accordingly, the Court will, for

the purposes of this judgment, deal with the application simply on the basis that the relief sought at para. 1 of the notice

of motion seeks to set aside the entire order of the Court of 21st December, 2001 whilst the relief at para. 2 excludes a

request that the decree of divorce be set aside.”

The trial judge (at para. 12.37) went on to outline a submission made on behalf of B.A. that it was not possible for the Court to set

aside any of the ancillary orders without setting aside the decree of divorce, so that the relief set forth at para. 2 of A.A.’s notice of

motion was not available. In the succeeding paragraphs, the trial judge considered that submission and she rejected it, setting out

(at para. 12.39 et seq.) her reasons for so doing. Having set out the matters which she had taken into account in concluding that the

Court could set aside the ancillary orders whilst leaving the decree of divorce in situ (at para. 12.43), the trial judge set out her

conclusion that the Court would not interfere with the decree of divorce granted on 21st December, 2001.

9. The 2009 Main Order, which primarily gave effect to the judgment delivered on 10th June, 2009, also set out the Court’s decision

on the application by B.A. for a stay on the portion of the order relating to the costs of the proceedings and B.A.’s obligation to

discharge the additional tranche of the lump sum. A limited stay was granted by the High Court upon terms set out in the order.

10. Two further orders were made by the trial judge on 24th July, 2009. One was made on foot of a motion brought by A.A. following

delivery of the 2009 Judgment seeking Mareva type relief against B.A. and orders directing disclosure and discovery of documents by

him. The order of the High Court on foot of that motion restrained B.A. from reducing his assets below the level of the lump sum

awarded by the High Court (including the additional tranche) between the date of the order and the determination of his appeal to

the Supreme Court. B.A. was also ordered to make certain disclosure to A.A. A.A. was awarded the costs of that motion. The other

order was made on foot of a motion brought after the delivery of the 2009 Judgment by B.A. seeking liberty to file further affidavits

and to adduce further evidence and that A.A.’s 2006 Application be re-opened. That motion was refused. B.A. was ordered to pay

A.A.’s costs of that motion.

Appeal to the Supreme Court

11. All of the foregoing matters are referred to because they were all the subject of B.A.’s appeal to the Supreme Court. B.A.’s appeal

to the Supreme Court (Record No. 373/09) was against the 2009 Judgment and the consequential order of 24th July, 2009, that it to

say, the 2009 Main Order, including the terms of the stay application, and also against the further two orders dated 24th July, 2009.

The grounds of appeal relied on by B.A., as set out in the notice of appeal dated 11th September, 2009, were very extensive, running

to 158 grounds in all, of which 137 related to the 2009 Judgment and the 2009 Main Order. Those grounds, in general, challenged,

inter alia, the failure of the High Court to find that the 2001 Order was final, and also the findings of the High Court in relation to

fraud and other misconduct alleged on the part of B.A., the burden and standard of proof, and evidential matters.

12. A number of grounds (Grounds 18, 19, 20, 23, 24 and 45) related to findings of the High Court in relation to the decree of divorce.

One of those grounds (Ground 19) asserted that the trial judge erred in finding that the Court had jurisdiction to set aside the

ancillary financial orders made on 21st December, 2001 while leaving in place and not setting aside the decree of divorce made on the

same date, even though the Court held that a court, in the context of divorce proceedings, cannot discharge the constitutional and

statutory obligations to grant a decree of divorce unless there has been adequate disclosure of a range of matters, including the

financial circumstances of the parties. That ground mirrors the tenor of the other grounds, all of which link B.A.’s contention that the

High Court had no jurisdiction to leave the decree of divorce in place to the requirement of “proper provision” being made, and of

disclosure of the financial circumstances of the parties, and to B.A.’s worsened “financial circumstances” and suchlike, thus pointing

to B.A.’s concerns in relation to his property and his property rights.

13. Two other appeals were joined with B.A.’s appeal. One was by the notice party, C.D., who appealed against the 2009 Judgment

and the 2009 Main Order (Record No. 328/09). The basis of C.D.’s appeal, as set out in her notice of appeal, was the failure or refusal

of the trial judge to make any order on foot of her motion to dismiss A.A.’s 2006 Application, which was returnable on the first day of

the trial, the trial judge’s conclusion that the procedure adopted by A.A. should not be considered fatal to her claim, the granting of

relief to A.A. pursuant to A.A.’s 2006 Application, and the refusal of the trial judge to make an order in respect of C.D.’s costs. In

addition, the 2009 Judgment and the 2009 Main Order were subject to an appeal by A.A. (Record No. 485/2009). A.A. issued a notice

to vary the order of the High Court pursuant to Order 58, rule 10 of the Rules of Superior Courts 1986. The variation sought by A.A.

was an increase in the additional tranche of the lump sum directed by the High Court to be paid by B.A. to A.A.

Decision of the Supreme Court

14. The three appeals were heard together by the Supreme Court (Hardiman J., McKechnie J. and Clarke J.) on 2nd, 3rd and 4th July,

2013. Judgment was delivered on 30th July, 2014 by Clarke J. (the Supreme Court Judgment). As the order of the Supreme Court

consequent on that judgment has only been perfected since the hearing of B.A.’s application to this Court, it is appropriate to set out

the outcome of the appeal by reference to the summary of conclusions set out in para. 11 of the judgment. Insofar as is relevant for

present purposes, paragraph 11 contained the following findings and conclusions:

(a) Paragraph 11.1 reflected the finding set out at para. 5.14 of the Supreme Court Judgment to the effect that the

jurisdictional issue raised by B.A. and C.D. could not succeed. In paragraph 11.1 it was stated:

“I am satisfied that the trial judge was correct to conclude that she had jurisdiction to entertain this application in

the form of a motion brought in the original proceedings and that it was appropriate, in all the circumstances of this

case, not least because procedures analogous to those which would apply in the plenary process had in fact been

applied, to go ahead with the case in that form.”

(b) Paragraph 11.3 set out the conclusion in relation to the findings of the trial judge on the allegations of non-disclosure

of assets made by B.A. on A.A.’s 2006 Application in the following terms:

“With the exception of the issue concerning the bond to which reference has been made, I am satisfied that each

of the findings of the trial judge in respect of the other assets which are the subject of this appeal were correct

both in terms of the obligation to disclose, the finding of non-disclosure, the deliberate nature of same and the

materiality and value of the assets concerned.”

The exception referred to there will be explained later.

(c) Paragraph 11.4 reflected para. 10.4 of the Supreme Court Judgment and stated that the trial judge was correct to

leave the decree of divorce in place and to make further provision in the manner in which she did, subject to the question

of the bond. In paragraph 10.4, in which it was stated that the trial judge was correct to conclude that it was possible to

make further provision for A.A. without interfering with the original decree of divorce, it was pointed out that the further

provision was not further provision in the statutory sense, as it did not derive from changed circumstances or other

circumstances contemplated in the legislation. The legal basis on which the further provision could be made by the Court

was explained as follows in para. 10.5:

“The legal basis for the further provision ordered by the trial judge in this case is that it is designed to meet the

constitutional obligation that the courts ensure that there be proper provision in the case of a divorce in

circumstances where it has now been established that, by virtue of the deliberate concealment of resources, [A.A.]

and the court was misled into believing that what was then provided amounted to such proper provision. In those

circumstances, I am satisfied that the court has a jurisdiction, without interfering with the original decree of

divorce, to simply make such additional provision as the Constitution requires to be made to ensure that the total

provision is appropriate in the light of the provision that would have been likely to have been considered proper at

the time of the original decree of divorce, had adequate disclosure been made.”

(d) Finally, in para. 11.5 it was stated that the order of the High Court should be affirmed, save that the bond issue

should be referred back to the High Court.

15. Returning to the bond issue for the purposes of explaining it, Clarke J. calculated that the trial judge had factored into the

additional tranche of lump sum awarded to A.A. in the 2009 Main Order an amount, hereafter referred to as the “specified sum”, in

respect of non-disclosure of a certain bond. The concern of Clarke J. in relation to the inclusion of that sum in the additional tranche

was addressed in para. 8.5 of the Supreme Court Judgment. The concern arose from the fact that, at the hearing before the Supreme

Court, very different accounts had been given of the potential benefit of the bond in question to B.A. Clarke J. stated (at para. 8.5):

“Having carefully reviewed that evidence, I have come to the conclusion that it may well be that the parties, or more

accurately their advisors, were speaking at cross purposes for there was insufficient evidence which would allow an

assessment as to which account of the bond, and its potential benefit to [B.A.], should be preferred. In those

circumstances, it seems to me that the only just course of action to adopt is to refer this single issue back to the High

Court for the sole purposes of determining whether, as a matter of fact, the bond concerned had the potential to

increase the resources available to [B.A.].”

The practical consequence of that decision was summarised at para. 11.5, where it was stated that the lump sum provision should be

reduced by the specified sum pending referral back of the bond issue to the High Court. However, if the limited bond issue was

resolved in favour of A.A., then the reduction should be reversed and “a further provision of [the specified sum] made”.

16. The order of the Supreme Court dated 30th July, 2014 (the Supreme Court Order), which was perfected on 31st July, 2015,

reflects the summary contained in para. 11 of the judgment, in that the appeal is dismissed and the order of the High Court is affirmed

subject to the deduction of the specified sum from the total lump sum award, subject to that reduction being reversed following the

decision of the High Court on the bond issue . The Supreme Court Order states that the issue of costs stands adjourned to a date to

be decided by the Court.

Remittal to the High Court

17. The matter was back before the trial judge in the High Court in October 2014, having been remitted by the Supreme Court.

Following a hearing on 17th October, 2014 the High Court made an order, which is dated 28th October, 2014, in which it found that

the bond in issue “had the potential and did increase the resources available to [B.A.]”. I interpret that as meaning that the

deduction of the specified sum from the total lump sum payable to A.A. is to be reversed. It has not been suggested to this Court

that the finding of the trial judge on the bond issue or the consequential order of the High Court made on 28th October, 2014 has

been appealed against. It is recited in the perfected order of 28th October, 2014 that the matter was heard on 17th October, 2014 in

the presence of counsel for A.A., counsel for B.A., counsel for the Official Assignee and the solicitor for C.D. Other issues which were

dealt with in the order of 28th October, 2014 are not material to this judgment.

18. As the presence of the Official Assignee in Court on 17th October, 2014 suggests, B.A. had been adjudicated a bankrupt in this

jurisdiction prior to that date. It is now necessary to outline some of the procedural aspects of the bankruptcy of B.A.

Bankruptcy of B.A.

19. The sequence of events in relation to the U.S. Bankruptcy and the bankruptcy in this jurisdiction was as follows:

(a) On 12th February, 2013 a creditor of B.A. filed a petition in the High Court seeking the adjudication of B.A. as

bankrupt in this jurisdiction. At the time B.A. was resident in the United States of America. By order of the High Court

(Dunne J.) made on 12th February, 2013 it was ordered, inter alia, that the petitioner was at liberty to serve the petition

out of the jurisdiction on B.A.

(b) However, before the petition was determined, on the voluntary filing by B.A. for Chapter 7 bankruptcy in the U.S.

Bankruptcy Court on 29th March, 2013, the U.S. Bankruptcy came into being. Richard M. Coan (the Chapter 7 Trustee)

was appointed Trustee of the bankruptcy estate of B.A. and an automatic worldwide stay on further proceedings in

relation to B.A.’s estate took effect.

(c) Subsequently, following an application to the U.S. Bankruptcy Court by the petitioner for bankruptcy in this

jurisdiction, the U.S. Bankruptcy Court, by an order perfected on 12th June, 2013, ordered that the automatic stay be

modified, inter alia, to permit parties and interests to continue with the “Irish bankruptcy proceedings” and to take all

actions necessary in connection with or relating to the petitioner’s application to have the appellant adjudicated bankrupt

in the “Irish bankruptcy proceedings”, with the proviso that nothing in the order should deprive the U.S. Bankruptcy Court

of jurisdiction over B.A. or over the property of B.A.’s estate.

(d) By order of the High Court (Dunne J.) made on 29th July, 2013, B.A. was adjudicated a bankrupt.

(e) Subsequently, B.A. filed notice of intention to show cause against the validity of the adjudication of bankruptcy in the

High Court. Following the hearing of that application, by order of the High Court (McGovern J.) dated 6th December, 2013,

B.A.’s application to show cause was dismissed. B.A.’s subsequent appeal against that order of the High Court was

dismissed by this Court in a judgment delivered on 15th May, 2015 (the Supreme Court Bankruptcy Judgment).

20. Looking at the foregoing sequence in the context of the matrimonial proceedings, the position is that, while B.A. was subject to

the U.S. Bankruptcy at the time of the hearing of the appeal in the Supreme Court in July 2013, he had not been adjudicated a

bankrupt in this jurisdiction. However, he had been adjudicated a bankrupt in this jurisdiction shortly after the hearing and, by the

time the Supreme Court gave judgment on 30th July, 2014, he was bankrupt in this jurisdiction. In the interim, an application having

been brought to the High Court by the Official Assignee, by order of the High Court (Abbott J.) made on 7th March, 2014, which was

expressed to be made in the matrimonial proceedings bearing Record No. 1997/No. 58M, the Official Assignee was joined as a

respondent. It would appear that the Official Assignee has not been joined as a respondent to the other conjoined matrimonial

proceedings (Record No. 2001/No. 168M). However, nothing turns on that as, assuming it is an oversight, it can be easily rectified.

21. Against that background, the application of B.A. which has given rise to the issue before the Court will now be outlined.

B.A.’s 2015 Application

The motion

22. By notice of motion dated 10th March, 2015 entitled in the matter of the three appeals to the Supreme Court (Record Nos. 328,

373 and 485/09) and expressed to be between B.A., as applicant, and A.A., as respondent, which will be referred to as “B.A.’s 2015

Application”, B.A. sought relief in the following terms:

“An Order setting aside both the Supreme Court’s judgment of 30th July, 2014 and the judgment of the High Court (Irvine

J.) dated 10th June, 2009, on grounds of objective bias, or apprehended bias, in violation of the unenumerated right to

constitutional and natural justice protected by Article 40.3 of the Constitution.”

That application was grounded on an affidavit of B.A. sworn on 23rd January, 2015.

Issue directed to be tried

23. When B.A.’s 2015 Application came before the Chief Justice on 23rd April, 2015, having heard counsel for B.A., counsel for A.A.,

and counsel for the Official Assignee, it was ordered that a preliminary issue be tried as to whether B.A. has locus standi to maintain

B.A.’s 2015 Application for an order setting aside the judgment of the Supreme Court dated 30th July, 2014 and the judgment of the

High Court dated 10th June, 2009. Directions were also given as to filing legal submissions, the submissions on behalf of the Official

Assignee to be filed first. Although C.D.’s appeal (Record No. 328/09) is referred to in the notice of motion dated 10th March, 2015,

B.A. did not make C.D. a party to B.A.’s 2015 Application and she has not been before the Court on the hearing of the application.

24. In B.A.’s 2015 Application, interim relief, which relates to certain assets, is also sought. However, no determination can be made

in relation to the interim relief until the issue in relation to locus standi has been resolved.

Additional evidence filed

25. Subsequent to the order of 23rd April, 2015, additional affidavit evidence was filed in this Court, which was presented as being of

relevance to the issue to be determined.

26. The earliest in time was an affidavit was sworn on 7th May, 2015 by Clodagh MacNamara, a solicitor in O’Grady’s, Solicitors, the

solicitors on record for the Official Assignee. In that affidavit Ms. MacNamara averred that she was in court when the matter was

remitted to the High Court in October 2014. She averred that on 9th October, 2014 counsel for B.A. indicated that he was attending

as a courtesy to the Court only and that it was for the Official Assignee to deal with the balance of the proceedings. The matter

remitted to the High Court was the subject of submissions on 17th and 28th October, 2014 by counsel for A.A. and counsel for the

Official Assignee. Counsel for B.A. “attended only as a watching brief”. It was further averred that at no stage during the course of

the hearings in October 2014 was any issue raised in relation to the trial judge determining any matter and that it was conceded by

counsel for B.A. that “it was a matter for the Official Assignee to deal with all issues in relation to the Estate of the Bankrupt”.

27. Next, on 21st July, 2015, just two days before the locus standi issue was listed for hearing in this Court, an affidavit by James

Berman sworn on 6th July, 2015 was filed on behalf of B.A. Mr. Berman is a partner in the law firm Zeisler & Zeisler, P.C., which

represents B.A. in the U.S. Bankruptcy proceedings in the U.S. Bankruptcy Court. In that affidavit Mr. Berman made the following

averments:

(a) In paragraph 4 he averred as follows:

“The date of [B.A.’s] U.S. bankruptcy filing and the creation of his U.S. bankruptcy estate, the 29th March, 2013,

pre-dates [B.A.’s] adjudication as a bankrupt in Ireland on 29th of July, 2013. Accordingly, with certain exceptions

not applicable here, all of [B.A.’s] assets, including his defenses in his family law proceedings, as of March 29, 2013

vested in his U.S. bankruptcy estate; and thereafter, as a matter of U.S. law and logic, said assets could not vest

in another person or bankruptcy estate.”

(Emphasis in original).

(b) Mr. Berman averred in paragraph 5 that A.A. “filed a proof of claim in [B.A.’s] U.S. bankruptcy case” on 23rd

September, 2013 and “filed amended proof of claim” on 26th September, 2013, and that from the details thereof it is clear

that the claim relates to the additional tranche of lump sum awarded to A.A. by the High Court and the costs of the

proceedings both in the High Court and in the Supreme Court.

(c) In paragraph 6 Mr. Berman averred as follows:

“In his U.S. bankruptcy case, [B.A.] has waived his discharge in bankruptcy. . . . This effect of this waiver is to

terminate the bankruptcy automatic stay as against [B.A.], personally, as opposed to his U.S. bankruptcy estate, .

. .; which permits creditors including [A.A.], to collect their debts from [B.A.’s] post-bankruptcy income and

assets.”

Later, Mr. Berman averred:

“As an individual, [B.A.] has a separate existence from his bankruptcy estate. As stated above, following the waiver

of his discharge, his pre-bankruptcy creditors may pursue him and seek to collect from his post-bankruptcy income.”

(d) In paragraph 9 Mr. Berman averred that the Chapter 7 Trustee, whom he described as “the representative of the U.S.

bankruptcy estate, which, as set forth above, not only contains [B.A.’s] pre-bankruptcy property, but also his pre-

bankruptcy defenses”, had authorised [B.A.] to pursue his right to seek to open the Irish Supreme Court judgment”. Mr.

Berman exhibited a letter dated 5th June, 2013 from the Chapter 7 Trustee to B.A.’s then solicitors prior to the hearing of

the appeal to the Supreme Court against the 2009 Judgment and the 2009 Main Order. In the letter, the Chapter 7

Trustee stated:

“Pursuant to your request, I am writing to confirm that I have no objection to your representation of [B.A.], or the

representation of [B.A.] by any other lawyer, in relation to any matters that have come before the Irish Supreme

Court or that may come before the High Court relating to [B.A.’s] family law dispute with his former wife.”

That letter, which records that it was sent by e-mail only, was dated just short of a month before the commencement of

the hearing of B.A.’s appeal in this Court.

(e) Finally, in paragraph 10 Mr. Berman averred that the U.S. automatic stay applies to all “entities” and that the Official

Assignee is an “entity”, which is defined as to include a “person, estate, trust, [and] government unit”. Mr. Berman

averred that, by asserting he has [B.A.’s] litigation rights, the Official Assignee is attempting to “exercise control over

property of the estate” and violating the automatic stay.

28. A further affidavit was sworn by Ms. MacNamara on 22nd July, 2015, in which she exhibited a letter from the Chapter 7 Trustee to

O’Grady’s, Solicitors. That letter was dated 22nd July, 2015. In the letter, the Chapter 7 Trustee stated that the letter of 5th June,

2013 was sent by him to B.A.’s then solicitors in this jurisdiction at a time when B.A. had been adjudicated in the United States. He

continued:

“At that time he had not been adjudicated in Ireland. I had no objection to him appealing the High Court decision in the

matrimonial proceedings as a successful appeal might well have had the effect of making assets available for creditors. In

circumstances where the creditors were not being required to bear the costs of the appeal, I saw no objection to

permitting the bankrupt to proceed with the appeal. However, I was focusing solely on U.S. law and I had no intention of

usurping the powers of an O.A., should an Irish bankruptcy commence. Nor did I take into account any aspect of Irish

law, of which I had no knowledge.”

The Chapter 7 Trustee then stated as follows:

“The letter of 5th June, 2015, although written in general terms, was never intended to be applicable to such as the

present application, which was wholly unforeseen at the time of writing of that letter.”

It is to be noted that the Chapter 7 Trustee neither set out his understanding of “the present application” nor indicated in plain terms

his position in relation to it.

29. Understandably, the solicitors for the Official Assignee were less than pleased when they first received the affidavit of Mr. Berman

by e-mail at 14.32 on the 21st July, 2015. In a letter of that day to B.A.’s solicitors, they indicated that they objected to the filing of

the affidavit and that they reserved the right to seek leave to file a reply, if the affidavit was to be admitted. When the matter was

before this Court on 23rd July, 2015, at the outset counsel for the Official Assignee recognised that the Court might consider it

appropriate that Mr. Berman’s affidavit be responded to and he indicated that the Official Assignee was reserving his entitlement to

seek an adjournment, if that was necessary. Having heard the submissions of counsel for the parties before the Court, the Official

Assignee, A.A. and B.A., the Court enquired of counsel for the Official Assignee whether the Official Assignee wished to file an

affidavit. Having taken instructions, counsel stated that the Official Assignee did not wish to file any further affidavit evidence.

Furthermore, at the hearing of the locus standi issue on 23rd July, 2015 B.A. did not seek an opportunity to put any further evidence

before the Court, for example, evidence, in the light of the contents of the letter of 22nd July, 2015, of the current position of the

Chapter 7 Trustee in relation to B.A.’s 2015 Application to set aside the judgments of the High Court and the Supreme Court.

30. Accordingly, the position is that, in the context of a matter of private international law raised by B.A., the Court has before it an

affidavit as to foreign law, that is to say, the law of the United States of America governing the U.S. Bankruptcy and the powers and

functions of the Chapter 7 Trustee, from an attorney who represents one of the proponents on the issue before the Court, while

having no other expert evidence on any relevant provisions of the law of the United States of America on behalf of any of the other

parties who were before the Court, that is to say, the Official Assignee and A.A. That is a most unsatisfactory state of affairs. Even

more unsatisfactory is the fact that this Court is not aware whether the Chapter 7 Trustee was given notice by B.A.’s solicitors of the

filing on 10th March, 2015 of B.A.’s 2015 Application or of the procedural developments in relation to that application prior to the

locus standi issue coming on for hearing on 23rd July, 2015, including the date fixed for the hearing of the locus standi issue, but it is

assumed he was not. This is particularly disconcerting given the conflict which has emerged between the Official Assignee and B.A. as

to the legal position in relation to B.A.’s assets, as the outline of the respective positions of the parties, which must now be embarked

on, will disclose.

Respective position of the parties in outline

Official Assignee’s submissions

31. In essence, the Official Assignee is the moving party on the locus standi issue. The kernel of the Official Assignee’s contention

that B.A. does not have locus standi to seek to set aside the 2009 Judgment and the Supreme Court Judgment is that A.A.’s 2006

Application in the matrimonial proceedings related solely to B.A.’s estate, that is to say, to his property, and not to his person, so

that he does not have a personal claim arising out of the decisions of the High Court or the Supreme Court. B.A.’s estate has been

vested in the Official Assignee since 29th July, 2013, it is submitted. In that connection, the Official Assignee relies on the definition

of “property” in s. 3 of the Bankruptcy Act 1988 (the Act of 1988), which provides that property includes “things in action”. He also

relies on s. 44 of the Act of 1988 and, in particular, subs. (1), which provides that, where a person is adjudicated bankrupt, subject

to the provisions of the Act of 1988, all property belonging to that person from the date of adjudication vests in the Official Assignee

for the benefit of the creditors of the bankrupt. Further, by virtue of subs. (3) of s. 44 it is provided that the property to which subs.

(1) applies includes, inter alia, –

“all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date

of adjudication.”

The Official Assignee also relies on s. 61 of the Act of 1988, which, by virtue of subs. (3), empowers the Official Assignee, inter alia,

–

“(d) to institute, continue or defend any proceedings relating to the property.”

In short, the position of the Official Assignee is that it is his function to determine what steps should be taken in relation to the

property of the bankrupt, including assets which are the subject of the judgments and orders of the High Court and the Supreme

Court on A.A.’s 2006 Application in the matrimonial proceedings. His decision is that he should not to prosecute any second

substantive appeal which might arise from the outcome of B.A.’s 2015 Application.

32. In support of his contention that it is for him, to the exclusion of B.A., to decide whether B.A.’s 2015 Application to set aside the

2009 Judgment and the Supreme Court Judgment or any proceedings, such as a further appeal which might result from its outcome,

should be prosecuted, the Official Assignee relies on the decision of the Court of Appeal of the United Kingdom in Heath v. Tang

[1993] 1 W.L.R. 1421 (Heath), which was applied in this jurisdiction by the High Court (Kelly J.) in Quinn v. IBRC [2012] IEHC 261

(Quinn). The Official Assignee also places particular emphasis on a decision of the High Court of New Zealand in De Alwis v. Kum Civ.

(2002) 404 001944 (De Alwis).

33. In his original written submissions filed on 7th May, 2015, the Official Assignee makes it clear that the purpose of those

submissions is solely to deal with the question of the locus standi of B.A. to bring B.A.’s 2015 Application. That undoubtedly is the

correct approach. Whether B.A.’s 2015 Application, as regards the substantive claims embodied in it, might, or might not, be

successful, whether in relation to the 2009 Judgment or the Supreme Court Judgment, if pursued, in my view, is not material to the

locus standi issue. In fact, the Official Assignee strayed beyond the avowed purpose of his submissions in a number of respects. For

instance, the Official Assignee made submissions as to the likely outcome of the application to set aside the 2009 Judgment and the

implications if it was not set aside, even if the Supreme Court Judgment was set aside. Moreover, in the Official Assignee’s

submissions a critical analysis is conducted as to the legal basis on which B.A. seeks to set aside the 2009 Judgment and the

Supreme Court Judgment. In my view, it is not appropriate for this Court to consider either of those matters. Similarly, the

implications, if any, of the failure of B.A. to raise the issues which he now raises at the hearing before the trial judge in the High Court

in October 2014 go to the substantive issues on his application rather than to the locus standi issue. While in this vein, apart from the

observation made in the penultimate paragraph of this judgment as to the proper approach for a bankrupt to adopt where an issue is

likely to arise as to whether the initiation or maintenance of legal proceedings in relation to a bankrupt or his estate is governed by s.

61(3)(d) of the Act of 1988, it is also pertinent to question, although neither the Official Assignee nor A.A. raised the point, whether

there is a procedural issue in B.A. initiating a motion in the Supreme Court to set aside the 2009 Judgment of the High Court, as

distinct from setting aside the order of the Supreme Court, rather than commencing the substance of B.A.’s 2015 Application as

regards the 2009 Judgment and the 2009 Main Order in the High Court. However, as the question was not raised, it is not necessary

for this Court to express any view on the point.

B.A.’s submissions

34. In responding to the submissions of the Official Assignee, counsel for B.A. did not take issue with the reasoning underlying the

decisions in Heath or Quinn. Rather B.A.’s position is that neither of those decisions was concerned with or addressed a number of

fundamental features of B.A.’s application.

35. The first distinguishing feature relied on by B.A. is characterised as the international cross-border dimension, which arises from the

fact that B.A. is subject to two concurrent bankruptcies, the U.S. Bankruptcy, which was first in time, and the bankruptcy in this

jurisdiction. B.A. asserts that the Official Assignee is incorrect in submitting that B.A.’s estate vested in the Official Assignee on 29th

July, 2013, the date of the adjudication of B.A. as a bankrupt in this jurisdiction. It is asserted that the decision in In Re Anderson

[1911] 1 KB 897 (Anderson) supports B.A.’s position that B.A.’s estate vested in the Chapter 7 Trustee, the U.S. Bankruptcy being

first in time. The Court was also referred to Sheldon on Cross-Border Insolvency (4th Ed, 2015) at paras. 9.28 – 9.29. A number of

propositions are advanced by B.A. flowing from that feature. It is contended that there is no basis for the Official Assignee to

contend that B.A. does not have the right to bring B.A.’s 2015 Application. Rather, whether B.A. has a right to bring that application

is a matter between B.A. and the Chapter 7 Trustee, B.A.’s position being that the letter of 5th June, 2013 from the Chapter 7

Trustee entitles him to bring the application. However, in my view, the letter of 22nd July, 2015 from the Chapter 7 Trustee disarms

B.A.’s reliance on the letter of 5th June, 2013. The alternative proposition advanced on behalf of B.A. is that, even if the Official

Assignee is entitled to intervene, on the facts as disclosed in Mr. Berman’s affidavit and, in particular, having regard to B.A.’s waiver

of his discharge in the U.S. Bankruptcy, it is not the case that B.A. has no interest in prosecuting B.A.’s 2015 Application. That is

because judgments against him, including the judgment in favour of A.A., who has submitted to the jurisdiction of the U.S. Bankruptcy

Court, in the matrimonial proceedings, can be enforced against him personally in the United States in relation to his post-bankruptcy

assets, so that he has a personal interest in prosecuting that application. The reasoning in Heath and in Quinn does not apply, it is

submitted. Underlying that alternative proposition of B.A. is the assertion that the Official Assignee is ignoring the existence of the

concurrent U.S. Bankruptcy, which was first in time, and its implications, which it is submitted he is not entitled to do.

36. The second feature which it is contended distinguishes the circumstances in this case from the circumstances in either Heath or

Quinn is that the central complaint here is that B.A. was denied his fundamental right to constitutional justice and a fair trial in

proceedings which were heard prior to his adjudication in bankruptcy, which, as regards the hearing of the appeal in the Supreme

Court, I presume means prior to his adjudication in this jurisdiction. B.A.’s claim arising from that complaint, it is suggested, is a

personal claim because it is B.A.’s personal rights which have been infringed, not those of the Official Assignee. It is suggested that,

as a matter of principle, an individual’s constitutional rights are inalienable and not capable of assignment. The commentary in Milman

on Personal Insolvency Law Regulation and Policy (Ashgate, 2005), at p. 59 is cited. In the context of discussing personal rights, in a

chapter entitled “The Bankrupt’s Estate”, Milman states that the acid test seems to be whether the right is assignable; if so, it is

capable of being brought within the boundaries of the estate. However, the authorities discussed by Milman leading to that conclusion

involved assessment of whether the relevant personal right had economic value, so as to vest in the trustee in bankruptcy. One

authority related to an expectation to renew a sea fishing licence; another to the continuation of a tenancy under a statutory

provision. Neither the commentary in Milman nor either of those examples, in my view, has any relevance to the circumstances here.

Nor do they support B.A.’s position when the real nature of his application and the only redress it could afford him, if successful, is

analysed.

37. A further distinguishing feature identified on behalf of B.A. is that B.A.’s application arises out of matrimonial proceedings in which

A.A. sought to set aside the 2001 Order, which order is characterised as a “consent order”, which “provided for a decree of divorce

and a financial settlement”. That characterisation, in my view, is not correct. The consent element of the 2001 Order did not cover

the decree of divorce; the decree of divorce was an independent determination of the High Court (O’Higgins J.), on the basis, as was

recited in the order, that the Court was satisfied that the requirements of s. 5(1) of the Family Law (Divorce) Act 1996 had been

complied with. In the judgments which B.A. seeks to set aside, there was a consideration as to whether the marital status of A.A.

and B.A. could or should be interfered with, as outlined at paras. 8 and 14 above. In my view, it is not the case, as suggested on

behalf of B.A., that the judgments sought to be set aside by B.A. “only indirectly concerned the estate and then not until after the

consent order was set aside” (emphasis in original). Having said that, it will be necessary to consider and make a determination on

whether the fact that the setting aside of the decree of divorce arose as an issue on A.A.’s 2006 Application has a bearing on the

nature of B.A.’s claim to set aside the judgments of both Courts on that application and brings it into the “personal” category.

The Official Assignee’s reply

38. On that last argument advanced on behalf of B.A., while acknowledging that the nature of the application brought by A.A. may be

more a matter for A.A., rather than for the Official Assignee, the response of the Official Assignee is that it is clear beyond argument

that the specific application of A.A. related solely to B.A.’s assets. In addition to taking issue with that last argument, counsel for the

Official Assignee also takes issue with the other propositions advanced on behalf of B.A. In particular, the reliance on behalf of B.A.

on the decision in Anderson as authority for the proposition that B.A.’s property and estate is vested in the Chapter 7 Trustee, rather

than in the Official Assignee, is questioned. In any event, it is submitted that, if there is a jurisdictional dispute as to how the

concurrent bankruptcies should proceed, this would have to be resolved between the Chapter 7 Trustee and the Official Assignee.

That is undoubtedly the case. However, the very unsatisfactory state of affairs which confronts this Court is that the only

information before this Court as to the current position of the Chapter 7 Trustee in relation to B.A.’s 2015 Application is his letter of

22nd July, 2015 to the solicitors for the Official Assignee, which is of limited assistance to the Court, when faced with what, in reality,

could evolve into a contest between B.A. and the Chapter 7 Trustee.

A.A.’s submissions

39. As the respondent to B.A.’s 2015 Application, indeed the only respondent named in the notice of motion filed on 10th March,

2015, A.A. was also a party to the locus standi issue. No question was raised by B.A. or the Official Assignee as to the entitlement of

A.A. to argue that B.A. does not have locus standi, although counsel for B.A. acknowledged that A.A. may have an interest arising

from being put to costs. This is adverted to because there is reference in Milman (op cit.) (at p. 55) to the decision of the House of

Lords in Mulkerrins v. PricewatershouseCoopers [2003] 4 All E.R. 1. As explained by Milman, that case concerned a right of action to

sue a firm of insolvency practitioners for failure to process an individual voluntary arrangement proposal, with the result that the

claimant was unnecessarily adjudged bankrupt. The claimant’s cause of action was found not to vest in the trustee because the

complaint did not crystallise until the bankruptcy commenced. Milman states that, notwithstanding “this curious reasoning”, the House

of Lords ruled that it was improper for the insolvency practitioners (who had not been parties to the original ruling) to seek to re-

litigate the point. As is clear from the opinion of Lord Walker, on an application by the claimant in the County Court, of which PwC

was not on notice, it was ordered that the trustee in bankruptcy had no interest in the claimant’s right of action against PwC. Lord

Walker stated (at para. 41) that, whether that order was right or wrong, it “clearly and decisively determined the issue between the

only two possible contenders for the right of action against PwC”. It was held that the practical effect of the order, which bound the

trustee in bankruptcy, was that it was not open to challenge by PwC. While the concern which that decision raises in the present

context is that, as things stand, the only real contenders before the Court on the locus standi issue, which is exclusively the product

of B.A. being a bankrupt, are the Official Assignee and B.A., in the light of the comments at the end of paragraph 38 as to the

unsatisfactory state of affairs with which this Court is confronted, there is also a concern that the Chapter 7 Trustee might claim in

the future that, if he had been joined by B.A. in the proceedings before this Court, he would have had an opportunity to be heard by

this Court. However, it is on B.A. that the onus lies to obviate those concerns. In this connection, the observation in the final

paragraph of this judgment is pertinent.

40. Broadly speaking, A.A. adopted the same position on the locus standi issue as the Official Assignee, namely, that B.A. has no

locus standi. As regards the concurrent U.S. Bankruptcy, it is submitted on behalf of A.A. that there is not a contest before this

Court on B.A.’s 2015 Application between competing jurisdictions. The point is made that the Chapter 7 Trustee has not asked the

courts of this jurisdiction for assistance in relation to this matter. The suggestion is that what is happening here is that B.A. is trying

to bypass the clear legal provisions of this jurisdiction. Once again, it is appropriate to reiterate that I consider that there is no

satisfactory evidence before this Court as to the current attitude of the Chapter 7 Trustee to the substance of B.A.’s 2015

Application.

41. The foregoing is merely an outline of the submissions made by the respective parties. Before attempting to narrow down the

issues which the Court has to determine, I consider that it would be useful to consider the authorities and academic commentaries

cited by the parties, so as to identify the relevant legal principles. In so doing, it is convenient to consider first the authorities which

do not have what counsel for B.A. referred to as an international cross-border dimension and then those which do, by being

concerned with concurrent bankruptcies in two jurisdictions.

Relevant legal principles per authorities/academic commentary

relied on by the parties

Authorities which have no international cross-border dimension

42. As is pointed out in Milman (op cit.) (at p. 53), one of the most vexed issues in bankruptcy law concerns the fate of causes of

action vested in the bankrupt prior to the date of his bankruptcy. Milman states that a prior cause of action, which is a thing in

action within the meaning of the statutory provision in force in England and Wales and which corresponds to the definition of property

in s. 3 of the Act of 1988, “will in general be viewed as an asset properly belonging to the estate”, citing Heath. However, Milman

goes on to say that certain personal claims (such as defamation actions or claims in respect of personal injury) do not fall within the

inclusive category in the definition of “property” and therefore remain the property of the bankrupt. Milman then cites in a footnote

(fn. 48) a number of authorities in support of that general proposition, pointing in most of the cases to the nature of the claim, for

example, damages for slander and wrongful dismissal. In the same footnote, Milman also states that “a claim for matrimonial relief by a

bankrupt spouse would also not pass to the trustee” in bankruptcy, citing, by analogy, D (J) v. D (S) [1973] 1 All E.R. 349, which was

a decision of the family division of the High Court of England and Wales. In that decision it was held that a husband’s application

under a statutory provision for variation of a post-nuptial settlement in respect of property abated on his death. I think it is

reasonable to surmise that the reference to a “claim by a bankrupt spouse” in that footnote reflects the analysis in Heath, outlined

below, which distinguishes prosecution of his claims by a bankrupt, on the one hand, and defence of claims against a bankrupt by him,

on the other hand.

43. In Heath, Hoffman L.J., as he then was, in considering the effect of bankruptcy on a cause of action, first considered the matter

at a general level, stating (at p. 1422):

“By section 306 of the Insolvency Act 1986 the bankrupt's estate vests in his trustee when appointed and by section

285(3), no creditor has after the making of a bankruptcy order any remedy against the property or person of the bankrupt

in respect of any debt provable in the bankruptcy. The effect is that the bankrupt ceases to have an interest in either his

assets or his liabilities except in so far as there may be a surplus to be returned to him upon his discharge. What effect

does this have upon legal proceedings to which he is a party? We shall consider the position first when the bankrupt is

plaintiff and secondly when he is defendant.”

44. By way of explanation, as was pointed out by Kelly J. in Quinn, s. 306 and s. 285(3) do not differ materially from the provisions of

s. 44 and s. 136 of the Act of 1988. While not specifically invoked by any of the parties on this application, it is appropriate to record

that s. 136(1) provides as follows:

“On the making of an order of adjudication, a creditor to whom the bankrupt is indebted for any debt provable in

bankruptcy shall not have any remedy against the property or person of the bankrupt in respect of the debt apart from

his rights under this Act, and he shall not commence any proceedings in respect of such debt unless with the leave of the

Court and on such terms as the Court may impose.”

Sub-section (2) of s. 136 provides that the section shall not affect the power of a secured creditor to realise or otherwise deal with

his security. Accordingly, in general, the effect of s. 136(1) is that the only remedy available to an unsecured creditor is to prove in

the bankruptcy for his debt.

45. In Heath, Hoffman L.J. went on to consider the position when the bankrupt is a plaintiff or claimant, stating (at p. 1423):

“The property which vests in the trustee includes ‘things in action’ . . . Despite the breadth of this definition, there are

certain causes of action personal to the bankrupt which do not vest in his trustee. These include cases in which ‘the

damages are to be estimated by immediate reference to pain felt by the bankrupt in respect of his body, mind, or

character, and without immediate reference to his rights of property’ . . . Actions for defamation and assault are obvious

examples. The bankruptcy does not affect his ability to litigate such claims. But all other causes of action which were

vested in the bankrupt at the commencement of the bankruptcy, whether for liquidated sums or unliquidated damages,

vest in his trustee. The bankrupt cannot commence any proceedings based upon such a cause of action and if the

proceedings have already been commenced, he ceases to have sufficient interest to continue them.”

46. As to the position where the bankrupt is a defendant, Hoffman L.J. stated (at p. 1424):

“In cases in which the bankrupt is defendant, there is of course usually no question of the cause of action having vested

in the trustee. Unless the defence is set-off . . . the bankrupt will not be asserting by way of defence any cause of

action of his own. But in cases in which the plaintiff is claiming an interest in some property of the bankrupt, that

property will have vested in the trustee. And in claims for debt or damages, the only assets out of which the claim can be

satisfied will have likewise vested. It will therefore be equally true to say that the bankrupt has no interest in the

proceedings. As we have seen, section 285(3) deprives the plaintiff of any remedy against the bankrupt's person or

property and confines him to his right to prove.

On the other hand, there are actions seeking relief such as injunctions against the bankrupt personally which do not directly concern

his estate. They can still be maintained against the bankrupt himself and he is entitled to defend them and, if the judgment is

adverse, to appeal.”

47. However, Hoffman L.J. went on to state that it appears clearly from the decision of the House of Lords in Rochfort v. Battersby

(1849) 2 H.L. Cas 388, that a bankrupt would not be entitled to appeal against an order which was enforceable only against his

estate. Hoffman L.J. set out the factual basis and the outcome of that case as follows (at p. 1425):

“The bankrupt was entitled to estates in Ireland subject to an annuity in favour of his mother. He had mortgaged the

estates to a creditor who brought foreclosure proceedings in which he joined the bankrupt, his assignees and the

annuitant. The action raised the question of whether the mortgage had priority over the annuity and the Lord Chancellor

of Ireland decided in favour of the annuitant. The bankrupt alone appealed to the House of Lords which dismissed his

appeal on the ground that he had no locus standi. Lord Cottenham L.C. said, at p. 406, that the question was whether he

had ‘that interest in the subject matter which would entitle [him] to appear here [as a party] questioning the propriety of

the decision below.’ The bankrupt did not:

‘the courts have always considered these acts of Parliament as divesting the insolvent of all title and interest in the

property, which would authorise and justify him in entering into any litigation respecting it.’

In this particular case, the bankruptcy had occurred before the foreclosure proceedings were commenced and the House

of Lords said that the bankrupt should never have been joined as a party in the first place. But the reasoning would

equally have precluded him from appealing if bankruptcy had supervened after the Irish proceedings had been concluded.”

48. Both in relation to circumstances where the bankrupt is plaintiff and where he is defendant, Hoffman L.J. pointed to a statutory

provision in force in England and Wales which the bankrupt may invoke where he is aggrieved because of the refusal of the trustee in

bankruptcy to prosecute a claim or where the trustee will not appeal a decision against him. The analogous provision in this

jurisdiction is s. 61(7) of the Act of 1988 which provides:

“The exercise by the Official Assignee of the powers conferred by this section shall be subject to the control of the Court,

and any creditor or other person who in the opinion of the Court has an interest may apply to the Court in relation to the

exercise or proposed exercise of those powers.”

While expressing no view on the application of that provision to a person in B.A.’s position, it is to be noted that, on B.A.’s 2015

Application, he is not seeking the directions of the Court; his position is that he is entitled to bring that application irrespective of the

view of the Official Assignee and without seeking the leave of the Court. In that respect, the observation in the penultimate

paragraph of this judgment is pertinent.

49. The decision of the Court of Appeal in Heath was considered by the High Court of New Zealand in De Alwis in a judgment delivered

by Courtney J. on 24th March, 2012, which, in turn, was considered by the High Court (Kelly J.) in Quinn. In De Alwis, the Court was

considering, inter alia, a claim by the second defendant, Mr. Chean, to set aside a judgment entered against him in the proceedings in

2007 following what is referred to as “a formal proof hearing”. The basis of Mr. Chean’s application to set aside, in general, was that

the plaintiffs had misled the Court at the formal proof hearing. At the relevant times, Mr. Chean had been a director of the first

defendant, Luvit Foods International Limited. The plaintiffs alleged that he induced them to invest in that company by making

misrepresentations about the company’s performance, which were misleading and deceptive under a statutory provision, and that he

was in breach of another statutory provision. The week before the hearing Mr. Chean declared himself a bankrupt. The solicitor acting

for him and for the company obtained leave to withdraw. In considering whether Mr. Chean had standing to apply to set aside the

judgment, Courtney J. considered a number of arguments advanced by counsel for Mr. Chean. As an alternative to his argument that

Mr. Chean’s situation was distinguishable from Heath on the basis that the judgment against him post-dated the adjudication, which

argument was rejected by Courtney J., counsel submitted that the judgment against Mr. Chean contained findings of a personal

nature such that the right to set aside the judgment remained vested in him. Further, counsel submitted that the findings that Mr.

Chean made misleading statements were “of a quasi-criminal nature”. He submitted that the findings had affected Mr. Chean’s

personal rights and reputation. Courtney J. found that none of those propositions was valid. In a passage quoted by Kelly J. in Quinn,

Courtney J. stated (at para. 24):

“Self-evidently, nearly all claims that result in a judgment enforceable against the estate will involve allegations of

wrongdoing by the defendant. It would be a most surprising result if the principle articulated in Heath v Tang were

undermined merely by the fact that the proceedings in which the judgment debt was obtained included allegations of

wrongdoing against the defendant. I would add that, even where the allegations of wrongdoing could otherwise be

regarded as defamation, that fact alone would not change the position in this case where the complaint is about findings

of the Court, given that statements made in the course of legal proceedings are privileged.”

Courtney J. also stated that, although a judgment obtained by fraud is liable to be set aside, that does not alter the fact that the

right to impugn a judgment debt on that basis still lies with the Official Assignee. In short, Courtney J. concluded that counsel for Mr.

Chean was effectively seeking to “separate the right to set aside a judgment from the judgment itself and to elevate such a right to a

personal right of action in itself”. He emphasised that the judgment debt was “a liability to be enforced only against Mr. Chean’s

estate” and, as such, fell to be dealt with only by the Official Assignee.

50. The issue before the High Court in Quinn, arose from the fact that the first named defendant, Irish Bank Resolution Corporation

Limited (IBRC), formerly Anglo Irish Bank Corporation, had been granted leave in October 2011 to issue and serve a third party notice

on, inter alia, Sean Quinn (Mr. Quinn) claiming against him an indemnity against a certain aspect of the claims of the plaintiffs in the

proceedings, the plaintiffs being members of Mr. Quinn’s family, on the grounds that any loss and damage as was allegedly sustained

by the plaintiffs, all of which was denied, was caused wholly, or alternatively was contributed to, by reason of specified alleged

wrongdoing on the part of Mr. Quinn. A statement of claim subsequently delivered against Mr. Quinn, in addition to claiming an

indemnity, sought damages for the alleged wrongdoing. Mr. Quinn delivered a full defence to the statement of claim in December

2011. In early 2012 Mr. Quinn was adjudicated a bankrupt in this jurisdiction, following which the Official Assignee informed the High

Court that it was not the intention of the Official Assignee to defend the claim against Mr. Quinn in the third party proceedings.

Subsequently, in February 2012 the first named defendant (IBRC) brought a motion before the High Court seeking directions

concerning the hearing of the third party proceedings. In the course of that motion, Mr. Quinn sought to be permitted to defend the

third party proceedings. In those circumstances, Kelly J. identified the following issue for determination by the High Court:

“Does . . . Mr. Quinn . . . , who is a bankrupt, have an entitlement to defend these third party proceedings brought

against him in circumstances where the Official Assignee in Bankruptcy . . . has declined to defend them?”

51. Having considered the judgment of Hoffman L.J. in Heath and, in particular, the passages considered above, Kelly J. pointed out

that one of Mr. Quinn’s contentions was that an alleged personal right to defend himself in the third party proceedings did not vest in

the Official Assignee. Mr. Quinn had pointed to passages of the third party statement of claim on which he relied to demonstrate “the

serious allegations of dishonesty and conspiracy made against him”, which he denied. Mr. Quinn, in turn, had made certain allegations

against the first named defendant (IBRC). Kelly J. summarised Mr. Quinn’s argument on this point as follows (at para. 56):

“It is suggested by Mr. Quinn that because of the nature of these allegations, the case can be regarded as one of those

‘personal’ types of cases which are not affected by bankruptcy.”

Kelly J. then considered a number of authorities cited on behalf of Mr. Quinn and concluded (at para. 62) that they did not appear to

advance Mr. Quinn’s assertion that the claims for indemnity and damages made against him in the third party proceedings were,

because of the allegations of misconduct, to be regarded as conferring on him a personal right to defend, which did not vest in the

Official Assignee. The decision of the New Zealand High Court in De Alwis appeared to Kelly J. to be much more in point. Having

referred to the specific arguments made by counsel for Mr. Chean as to the right to set aside the judgment being personal to Mr.

Chean, Kelly J. quoted the passage from the judgment which has been quoted above, stating (at para. 65) that those observations

appeared to him to be much more pertinent to the line of argument which Mr. Quinn advanced before him and that they were against

the proposition asserted by Mr. Quinn. Kelly J. continued (at para. 66):

“In my view, merely because the allegations against Mr. Quinn in the third party proceedings involve allegations of

wrongdoing, does not remove the defence of such a claim from the purview of the Assignee. Accordingly, I am of opinion

that this claim for damages against the estate of the bankrupt is not one of those personal claims which do not vest in

the Assignee. The defence of such a claim is a matter for the Assignee. This position is not altered because the claim

includes allegations of wrongdoing against Mr. Quinn. Insofar as this argument is concerned, therefore, I reject the

entitlement of Mr. Quinn to represent himself further in this litigation.”

Authorities in which an international cross-border dimension is present

52. I turn now to the other line of authority and academic commentary which it is necessary to consider, because it is submitted on

behalf of B.A. that the Court must have regard to the implications of the concurrent foreign bankruptcy, the U.S. Bankruptcy.

53. As has been recorded earlier, counsel for B.A. cited the commentary in Sheldon (op cit.) at paras. 9.28 and 9.29. Obviously, the

author there is dealing with the law of England and Wales, as he makes absolutely clear in the following statement under the heading

“Concurrent Bankruptcies” (at para. 9.28):

“In the case of concurrent bankruptcies, the issue may arise as to whose title is to prevail where there are assets in

England being claimed by both trustees. The basic approach would appear to be that the first in time will prevail. If

bankruptcy proceedings have been commenced in England and a bankruptcy order made, no subsequent foreign

adjudication will divest the English trustee of the title to the property in England [citing Re: O’Reardon (1873) 9 Ch. App.

74], although the English court will in such circumstances recognise the authority of the foreign trustee to deal with and

distribute those assets within the jurisdiction of the foreign court. However, where the foreign adjudication precedes the

English bankruptcy, movable property in England will already have vested in the foreign trustee and it cannot thereafter

vest in the English trustee. Title must, however, be distinguished from jurisdiction. The fact that there is a prior foreign

adjudication in bankruptcy (entitled to recognition in England) does not deprive the English court of jurisdiction to make a

bankruptcy order. Equally the existence of a prior foreign adjudication cannot require the English court to stay its own

proceedings.”

The principles set out in the last two sentences in that passage have, in fact, been recognised by this Court in the Supreme Court

Bankruptcy Judgment on the appeal by B.A. against the decision of the High Court (McGovern J.) dismissing his application to show

cause and to set aside his adjudication in bankruptcy. However, it was made clear in that judgment that how the concurrent

bankruptcies could proceed would be a matter for the U.S. Bankruptcy Court and the High Court and for the Chapter 7 Trustee, who

had not been before the High Court on the hearing of the show cause application and was not before this Court on the appeal, and

the Official Assignee.

54. The authority primarily relied on by counsel for B.A., Anderson, was a decision of the High Court, which, as is pointed out in

Sheldon (op cit.), “did not, on its facts, involve contemporaneous proceedings”. The facts were that in 1898 Anderson, whose

domicile was English and who was entitled to a reversionary interest in personalty in England, was adjudicated bankrupt in New

Zealand on a creditor’s petition. He obtained his discharge in New Zealand in December 1900. However, in 1904 he was adjudicated a

bankrupt in England on a creditor’s petition and the official receiver became the trustee in bankruptcy. In January 1910 he applied for

his discharge in the English bankruptcy, which was granted subject to a years’ suspension. The reversionary interest, which by an

oversight was not disclosed in the New Zealand bankruptcy, was discovered by the trustee in bankruptcy in England in 1909 and he

at once gave notice of his title to the trustees of the fund and arranged to sell it for £140. The Official Assignee in New Zealand

claimed the £140 on the ground that the creditors in New Zealand were still unpaid, and applied for a declaration that he was entitled

as against the trustee in bankruptcy in England to whatever interest the bankrupt was entitled in the property in 1898. It was held

that the Official Assignee in New Zealand was entitled as against the trustee in bankruptcy in England to the reversionary interest.

55. The first sentence of the judgment of Phillimore J., in which he stated that what he was concerned with was “a contest between

the Official Assignee of the bankrupt under an earlier bankruptcy in New Zealand and the trustee in bankruptcy under a bankruptcy at

a later date in England”, identifies what I consider to be a very significant difference between this case and Anderson. This Court is

not concerned here with a contest between the Official Assignee and the Chapter 7 Trustee in the U.S. Bankruptcy, because B.A. did

not seek to make the Chapter 7 Trustee a party to B.A.’s 2015 Application.

56. On my reading of the judgment of Phillimore J., his approach was to identify where the title to the reversionary interest lay. First,

he stated (at page 902) that, upon principle and authority, the adjudication in New Zealand, being a valid adjudication according to

the law of New Zealand passed the right to movable property of the bankrupt in any country to his official assignee in bankruptcy in

New Zealand. Furthermore, if the New Zealand bankruptcy passed as against the debtor all his movable property wherever situate, it

passed it equally against all persons claiming under later titles from him, such as an executor, an encumbrancer, an assignee for

value, or even an official trustee or assignee at bankruptcy. He then stated:

“Therefore this equitable reversion with which I have to deal had ceased to be the bankrupt’s, and was no longer part of

his assets when the second bankruptcy supervened. Therefore it did not pass to the trustee in the second bankruptcy.”

57. Counsel for the Official Assignee reminded this Court of the extent to which this Court had considered the decision of the Court of

Appeal in In Re Artola Hermanos (1890) 24 Q.B.D. 640 (Artola Hermanos) in the Supreme Court Bankruptcy Judgment on B.A.’s appeal

to this Court against the dismissal by the High Court of his application to show cause. The factual circumstances in Artola Hermanos

were that a firm, having its head office in Paris, had a branch establishment in England. The firm was declared bankrupt in Paris under

the law of France, and a syndic was appointed to administer the estate. Subsequently, a bankruptcy petition was presented against

the partners in England and an order was made appointing an interim receiver. The syndic applied to the English court to discharge

that order and to stay all further proceedings under the petition. There was no evidence as to the domicile of the members of the

firm, but two of them resided in England, where the firm had large assets. The Court of Appeal held that the jurisdiction of the Court

being undoubted, the receiving order was rightly made. Further, the fact that a prior bankruptcy had been commenced in a foreign

county, not shown to be the country of domicile of the debtors, was no ground for staying the proceedings in England. The purpose

of analysing the decision of the Court of Appeal in Artola Hermanos in detail on B.A.’s appeal was explained in the Supreme Court

Bankruptcy Judgment as being “because it illustrates the distinction . . . between the jurisdiction to create a concurrent bankruptcy

and the effect and consequences of so doing”. It was against that background that it was stated in that judgment that how the

concurrent bankruptcies would proceed would be a matter for the U.S. Bankruptcy Court and the High Court and for the Chapter 7

Trustee and the Official Assignee.

58. In his judgment in Anderson, Phillimore J. did not overlook the decision of the Court of Appeal in Artola Hermanos. He referred to it

immediately after the last passage from the judgment quoted above, stating (at p. 903):

“I would like, before I leave this question, to point out that in In Re Artola Hermanos, and cases of that kind, the Court

deals, perhaps not quite logically but very sensibly and practically, with cases of concurrent or contemporaneous

bankruptcies without much regard as to which bankruptcy was by a few days the earlier of the two. Where both

bankruptcies are running, the estate has to be got in. And, at any rate, for the purpose of colligenda bona, it may be

quite proper to have two bankruptcies running, one in this country and another in some foreign country. In those cases

the Court by upholding the title of the trustee in the English bankruptcy does not mean, as Lord Coleridge clearly pointed

out, to decide the ultimate right to the assets. It merely gives a title ad colligenda bona.”

59. Having commented, as outlined earlier, that Anderson did not, on its facts, involve contemporaneous proceedings, it is stated in

Sheldon (op cit.) that such proceedings did arise on at least three prior occasions before the old Court of Bankruptcy and it is

suggested that perhaps the best illustration is Re Hughes (1858) 31 LTOS 207 (Hughes), the facts of which Sheldon outlines at para.

9.29. In Hughes, which is specifically relied upon by counsel for B.A., the bankrupt had carried on business as a shoemaker in London

and in Londonderry. An adjudication was made on the debtor’s petition in Ireland and, three days later, a creditor’s petition was

presented in England, pursuant to which an adjudication was subsequently made. A dispute arose concerning the proceeds of

property in England, whether it should go to the official assignee in England, who was not yet appointed, or the official assignee in

Ireland. Mr. Commissioner Holroyd stated:

“The only question is as to the assets. By law all of the property of the bankrupt wherever situate, passes to the courts

which first acquire title to it. I do not think I ought to interfere in the matter. So far as I can understand it, the money

must be paid over to the assignee in Ireland; and if the party complaining have any objection to make, he must oppose

the bankrupt in the Court of Bankruptcy there.”

60. The commentary in Sheldon outlined above and the decision in Hughes have been considered because these matters were put

before this Court by counsel for B.A. in support of B.A.’s contention that the submission of the Official Assignee that B.A.’s estate

vested in the Official Assignee on 29th July, 2013, the date of his adjudication in this jurisdiction, is incorrect and that B.A.’s estate

had by then vested in Chapter 7 Trustee. In the absence of the Chapter 7 Trustee, it would not be appropriate for this Court to

express any view on B.A.’s contention. However, it is perhaps worth noting that, in delivering the judgment of the Privy Council in

Cambridge Gas Transport Corporation v. Official Committee of Unsecured Creditors of Navigator Holders Plc [2007] 1 A.C. 508, a

decision which was considered in the Supreme Court Bankruptcy Judgment, Lord Hoffman, in commenting on the undeveloped state of

the common law as regards unifying principles applicable to both personal and corporate insolvency, stated (at para. 19):

“For example, the rule that English movables vest automatically in a foreign trustee or assignee has so far been limited to

cases in which he was appointed by the court of the country in which the bankrupt was domiciled (in the English sense of

that term), as in Solomons v Ross, or in which he submitted to the jurisdiction: Re Davidson's Settlement Trusts (1873)

LR 15 Eq 383. It may be that the criteria for recognition should be wider, but that question does not arise in this case.

Submission to the jurisdiction is enough. In the case of immovable property belonging to a foreign bankrupt, there is no

automatic vesting but the English court has a discretion to assist the foreign trustee by enabling him to obtain title to or

otherwise deal with the property.”

It is reasonable to predict that whether the principles outlined in that passage, which is quoted in Sanfey and Holohan on Bankruptcy

Law and Practice (2nd Ed. at para. 19 – 13) (in relation to the question “what the position would be vis-à-vis non-EU bankruptcy

proceedings”) apply in this jurisdiction, which has not been decided yet, will be the subject of consideration in the High Court in the

not too distant future. In the circumstances, at this juncture, this Court must exercise caution.

61. Having said that, of course, B.A. did submit to the jurisdiction of the U.S. Bankruptcy Court by filing for Chapter 7 Bankruptcy on

29th March, 2013. That being the case, it is difficult to see how it would be appropriate for this Court to accept as correct the

submission on behalf of the Official Assignee that all of B.A.’s assets, which would obviously cover movables as well as immovables,

have been vested in the Official Assignee since 29th July, 2013, in the absence of the Court hearing the views of the Chapter 7

Trustee on that point.

Discussion of and conclusions on the locus standi issue

62. The legal and factual foundation on which the Court is expected to determine whether B.A. has locus standi to prosecute B.A.’s

2015 Application is riven with imponderables and hypotheses. In particular, for the reasons outlined earlier, it is neither appropriate nor

possible to determine where, and to what extent, the property and estate of B.A., movable and immovable, is now vested, whether in

the Official Assignee or the Chapter 7 Trustee, in the absence of the Chapter 7 Trustee before the Court. Notwithstanding that, I am

satisfied that the Official Assignee has, under Irish law, an ad colligenda bona function, that is to say, a function to collect and

preserve the assets of B.A., which, in my view, gives him sufficient standing to question the standing of B.A. to prosecute B.A.’s 2015

Application in this jurisdiction.

63. The fundamental question which must be considered on the locus standi issue is whether it is possible for the Court to determine

that, irrespective of in which bankruptcy representative the estate of B.A. is vested, whether it is in the Official Assignee or,

alternatively, in the Chapter 7 Trustee, B.A., as he contends, has retained a right which is personal, as distinct from proprietarial, in

nature, which has not been vested in the Official Assignee or the Chapter 7 Trustee, as the case may be, and which gives him

standing and entitles him to prosecute B.A.’s 2015 Application. In order to answer that question it is necessary to consider first the

status of B.A., as the moving party in B.A.’s 2015 Application. In other words, does he have the status of a claimant or does he have

the status of a defendant? The answer to that question necessitates a consideration of the nature of B.A.’s role in the process of

A.A.’s 2006 Application in the High Court and in the Supreme Court.

64. B.A.’s role in the High Court on A.A.’s 2006 Application was to defend against A.A.’s claims, which, in essence, were claims that

additional provision be made for her from B.A.’s assets. In the appeal to the Supreme Court he was seeking to set aside the judgment

of the High Court, which was favourable to A.A. and was unfavourable to him in awarding additional provision, but, in reality, he was

doing so in defence of A.A.’s claim. By analogy to the observations of Sedley L.J. in Grady v. HM Prison Service [2003] EWCA Civ. 527

(at para. 20) to the effect that the appeal in that case, brought as of right, “was a continuation of the claim once it had failed at

first instance”, B.A.’s appeal was a continuation of his defence once it had failed in the High Court. Having been unsuccessful in the

Supreme Court, B.A.’s objective in initiating and attempting to prosecute B.A.’s 2015 Application is to set aside both the 2009

Judgment of the High Court and the Supreme Court Judgment, which, in the event of B.A. being successful, would mean that he

would have to re-defend A.A.’s 2006 Application, assuming that A.A. decided to re-litigate it, which is a reasonable assumption. On

that analysis, it seems to me that B.A.’s only current status in the matrimonial proceedings is as defendant to A.A.’s claim for

additional provision.

65. If one envisages B.A. being in the hypothetical situation in which he finds himself re-defending the re-litigation of A.A.’s claim on

A.A.’s 2006 Application, the outcome of that process, insofar as it would result in an increase or a diminution of the provision to be

made for A.A. would, under Irish law, affect the property and estate of A.A., in whichever bankruptcy representative it would be

vested at that time. To that extent, it would not affect B.A. personally under Irish law. The question which remains, on the

application of Irish law, is whether in the hypothetical situation of re-defending the re-litigation of A.A.’s claim under the A.A.’s 2006

Application, B.A. would have some personal interest, as distinct from a property interest. It seems to me that the only basis on which

one can answer that hypothetical question is by reference to B.A.’s conduct of the defence of A.A.’s claim in the past. The grounds

on which B.A. appealed the decision of the High Court are particularly informative in that regard.

66. As outlined earlier, B.A. did, on the appeal, challenge the decision of the High Court to leave the decree of divorce in place while

substituting for the ancillary provisions in the consent component of the 2001 Order ancillary provisions more beneficial to A.A. He did

not do so, however, on the basis that, in order to protect a personal right unconnected to a property right, he was entitled to have

the decree of divorce set aside, for example, so that the legal status of his marriage to A.A. would be reinstated for a reason

unconnected with the making of proper provision for one or other or both of the former spouses. From reading the grounds of appeal it

is clear that he did so solely on the basis of the property and financial implications of not setting the decree of divorce aside, in

consequence of which a situation would not be created whereby the divorce proceedings would have to be started ab initio, thus

creating an opportunity for B.A. to eliminate the property and financial implications which he regards as being adverse to him. On that

analysis, and taking an overview of what has happened to date, in my view, B.A. has not demonstrated that he would have a

personal interest, as distinct from a property interest, by being put in a situation, by reason of obtaining the relief he seeks on B.A.’s

2015 Application as set out at para. 22 above, where A.A. would have to re-litigate A.A.’s 2006 Application and B.A. would have an

opportunity to re-defend it.

67. In arriving at that conclusion, the locus standi issue has been narrowed down to the real core of the substantive issue raised on

B.A.’s 2015 Application, namely, what the outcome of the only relief he seeks will be, if he succeeds. It is true that the submission

made by B.A. that his constitutional right to a fair trial has been infringed, which he contends is a personal right which remains vested

in him, has not been analysed. That is because, in the words of Courtney J. in De Alwis, B.A. is effectively seeking to “separate the

right to set aside a judgment from the judgment itself and to elevate such a right to a personal right of action itself”. The judgment

which B.A. seeks to set aside gave rise to a liability enforceable only against B.A.’s estate. So, even if B.A. were successful on the

argument that he had not been afforded a fair trial, the only outcome which would afford redress to B.A. for the infringement of his

constitutional right would be the creation of a situation which would result in A.A. having to re-litigate and B.A. having an opportunity

to re-defend A.A.’s 2006 Application. It must be emphasised that the complaint which forms the basis of B.A.’s 2015 Application is not

focused against A.A. and, indeed, no wrongdoing is alleged against A.A. in that regard. The reality from every perspective, legal and

practical, is that the only outcome which could be available to B.A., if he was successful, would be what he seeks, the setting aside

of the 2009 Judgment and the setting aside of the Supreme Court Judgment, with the probability of re-litigation by A.A. of A.A.’s 2006

Application. He would not have any other remedy against A.A. or against any other person. That being the case, the question as to

whether B.A. has standing to initiate and prosecute B.A.’s 2015 Application, having regard to his status as a bankrupt in two

jurisdictions, when assessed in the context of the only potential outcome of that application, if successful, must be that he does not

have standing, because he has not demonstrated that in the re-litigation and re-defence of A.A.’s 2006 Application, to adopt the

words of Hoffman L.J. in Heath, the relief sought would “not directly concern his estate” so as to entitle him to defend.

68. Recalling the rejection of the argument by counsel for B.A. set out in para. 37 above that the judgments sought to be set aside

by B.A. only “indirectly” concerned the estate, it must be emphasised that the fact that the setting aside of the decree of divorce

arose as an issue in the High Court and in the Supreme Court on A.A.’s 2006 Application and that both Courts considered that it was

unnecessary to set the decree aside, does not support B.A.’s argument that his asserted entitlement to set aside the 2009 Judgment

and the Supreme Court Judgment falls within the personal category. On the basis of the analysis in the preceding paragraphs, I am

satisfied that the defence by B.A. of the claims against him in A.A.’s 2006 Application was wholly property oriented. Neither the fact

that A.A.’s 2006 Application, which is at the heart of B.A.’s 2015 Application, is founded in matrimonial proceedings, nor the fact that

B.A. contends that his constitutional right to a fair trial has been infringed, supports the argument that B.A. has a personal interest in

continuing to prosecute B.A.’s 2015 Application under Irish law. That is so, even if it is the case that, as a matter of Irish law, the

Official Assignee has no greater title than an ad colligenda bona function in relation to B.A.’s movable assets.

69. As to the B.A.’s submission that he has a personal interest in having the 2009 Judgment and the Supreme Court Judgment set

aside having regard to the application of United States law to him, based on his waiver of discharge, because of a number of factors

which have already been alluded to, this Court is not in a position to express a view on B.A.’s contention that he has such a personal

interest. The most significant factor is that the principal contender with B.A. as to the conduct of the U.S. Bankruptcy, in accordance

with the law of the United States, is the Chapter 7 Trustee, who is not before this Court. Indeed, B.A. has not sought to join the

Chapter 7 Trustee as a notice party in the matrimonial proceedings or in B.A.’s 2015 Application. Moreover, it would appear that B.A.

did not give the Chapter 7 Trustee notice of the initiation of B.A.’s 2015 Application or of the direction that the locus standi issue be

tried by this Court or of the date of the hearing of such issue. Such notice as the Chapter 7 Trustee has had of those matters

appears to have come from the solicitors for the Official Assignee. Secondly, the only evidence before this Court as to the current

attitude of the Chapter 7 Trustee is his letter of 22nd July, 2015 to the Official Assignee’s solicitors, which, as has been frequently

noted above, is not satisfactory evidence as to his current attitude, save to set out his challenge to B.A.’s reliance on his letter of

5th June, 2013. Thirdly, as has also been noted earlier, the only evidence before the Court as to the relevant law of the United

States is an affidavit from Mr. Berman, the attorney on record for B.A. in the U.S. Bankruptcy proceeding. B.A. cannot expect this

Court to adjudicate on an issue involving the application of the law of a foreign jurisdiction without the benefit of independent expert

evidence on the foreign law (lack of independent evidence being pointed to in Dicey Morris and Collins on The Conflicts of Law (15th

Ed.) at para. 9.014 as a factor which may severely weaken the credibility of the evidence a technically competent witness gives)

and, more importantly, in the absence of his principal potential protagonist on the issue. Accordingly, insofar as B.A. relies on what

has been termed the international cross-border dimension involving an assessment of the application of the law of bankruptcy in the

United States to him, he has not rendered it possible for this Court to adjudicate on that aspect of his claim.

70. While the procurement by the solicitors for the Official Assignee of the letter of 22nd July, 2015 from the Chapter 7 Trustee was

of some limited assistance to the Court, it is important to emphasise that in the present context the onus of proving that B.A. either

does have or does not have locus standi by reason of the application of U.S. law to B.A. in the circumstances prevailing in the U.S.

Bankruptcy is not borne by the Official Assignee. It is on B.A. that the burden rests to establish that he has locus standi to bring

B.A.’s 2015 Application. Therefore, any deficiencies in proving the facts which it is necessary to prove to establish that he has locus

standi to bring and continue that application on the basis of the law of a foreign jurisdiction, which is a question of fact, are fatal to

his being allowed to pursue it.

Summary of conclusions and order of the Court.

71. For the reasons outlined at paras. 64 to 68 above, I am satisfied that B.A. has not demonstrated that, as a matter of Irish law,

he has locus standi to maintain B.A.’s 2015 Application. Moreover, it is not possible for this Court to adjudicate on B.A.’s submission

that he has a personal interest in pursuing B.A.’s 2015 Application by the operation of the applicable law of the United States to his

U.S. Bankruptcy, because of the deficiencies in the presentation of his claim to this Court outlined at paras. 69 and 70 above.

72. Accordingly, I consider that there should be an order dismissing B.A.’s 2015 Application.

Pertinent observations

73. Despite the unsatisfactory procedural manner in which B.A.’s 2015 Application has come before it, this Court has taken a practical

approach and has addressed whether B.A. has locus standi to bring that application by way of preliminary issue. However, it should be

noted that, where a bankrupt considers that he or she is entitled, as a matter of law, to institute, continue, whether by way of

appeal or otherwise, or defend legal proceedings, having regard to the power conferred on the Official Assignee by s. 61(3)(d) of the

Act of 1988, he or she should at the outset ascertain the view of the Official Assignee as to whether he or she is entitled so to do. If

a dispute arises between the bankrupt and the Official Assignee as to the bankrupt’s right to prosecute proceedings, the resolution of

that dispute is a matter, in the first instance, for the High Court.

74. Finally, it is pertinent to emphasise that the courts of this jurisdiction cannot ignore the fact that B.A. has been adjudicated a

bankrupt in the U.S. Bankruptcy. Insofar as issues in relation to the application of the law of the United States regulating the U.S.

Bankruptcy and the actions of the Chapter 7 Trustee properly arise in this jurisdiction, the courts of this jurisdiction will require

assistance from the Chapter 7 Trustee and, where appropriate, from the U.S. Bankruptcy Court. Obversely, I would expect that, if the

application of Irish law were to arise in the conduct of the concurrent bankruptcies in the U.S. Bankruptcy Court, the Chapter 7

Trustee and, where appropriate, the U.S. Bankruptcy Court, would seek and be given the assistance of the Official Assignee and,

where appropriate, of the High Court.