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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> O'Doherty v. West Limerick Resources Ltd. [1999] IESC 39 (14th May, 1999) URL: http://www.bailii.org/ie/cases/IESC/1999/39.html Cite as: [1999] IESC 39 |
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1. This
is an appeal from a judgment and order of the High Court (Smyth J.) of the 29th
July 1996 whereby the plaintiff/appellant’s claim for a declaration and
injunctions was refused.
3. The
appellant issued and served a notice of motion returnable for the 20th of March
1996 claiming the same relief on an interlocutory basis.
4. That
motion came before the High Court (Geoghegan J.) on the 20th of March 1996
whereupon the appellant undertook pending the full hearing of the matter not to
seek to act as a director of the respondent company:
5. In
fact no oral evidence was adduced by either party on the hearing of the said
motion. The motion was accordingly heard on the 29th of July 1996 on an
affidavit of the appellant sworn on the 15th of March 1996 and an affidavit of
Sean Liston, chairman of the respondent company, sworn on the 19th of March
1996 and the documents exhibited in the said two affidavits. As there was no
oral evidence and the matter was decided on affidavit evidence alone it follows
that this Court is in as good a position as was the learned trial judge to
determine the facts of the case but in saying
6. The
people of West Limerick were active in seeking to improve the areas in which
they lived and worked and thus their own quality of life. They sought to do
this through an unincorporated association which they formed in about 1991
known as The West Limerick Resource Development Project. The respondent company
was incorporated on the 10th of September 1993 and took over the activities and
assets of the previous unincorporated association. The respondent company is a
company limited by guarantee. Its Articles of Association provide for a board
of directors of not less than seven nor more than twenty two members.
Membership is unlimited as to numbers.
7. At
the time of the matters giving rise to these proceedings there were some 35
community groups who had formed themselves into a communities committee of the
respondent company. These communities were divided into four districts and each
district was entitled to nominate two persons to be directors of the respondent
company. The district to which the appellant belonged and which is the subject
matter of this litigation is the Rathkeale district.
8. The
Communities Committee held their Annual General Meeting on the 8th of November
1995 pursuant to a notice of such meeting dated and sent out on the 17th of
October 1995.
That
notice was served on all appropriate bodies of the Rathkeale district save for
two namely, the Knockfierna Heritage and Folklore Society and the Irish
Palatine Association. The omission to serve these two bodies was not
accidental. It was a deliberate but
bona
fide
mistaken view taken by Mr. Liston on the
9. Objection
was thereafter made to the election and nomination of the appellant by the
Knockfierna Society and the Palatine Association. Eventually, the respondent
company decided to re-run the election and nomination of a candidate as
Director of the respondent company for the Rathkeale district. The appellant
was duly proposed as a candidate but
10. First,
as regards the appellant’s contention that his election and nomination
was valid having regard to the concluding words of Article 17
11. One
of the problems in this case arises through confusion between the Annual
General Meeting of the Communities Committee of the respondent company and the
Annual General Meeting of the respondent company itself. The appellant
throughout his affidavit and his points of claim refers to the meeting of the
8th of November 1995 as the Annual General Meeting of the respondent company.
It was not such. It was the Annual General Meeting of the Communities
Committee. But again confusion arises because it seems that the persons elected
and nominated as directors of the respondent company for the four districts at
the Communities Committee Annual General Meeting are more or less
12. The
election and nomination of the appellant by the Communities Committee was
therefore not ratified or accepted by the respondent company at its Annual
General Meeting held on the 16th November 1995 nor at any other general meeting
or director’s meeting of the respondent company. The fact that Mr. Liston
congratulated and welcomed the appellant on his nomination by the Communities
Committee as a director for the Rathkeale District cannot bind the respondent
company which at its Annual General Meeting a few days later specifically
declined to accept or ratify the appellant as a director. It is the respondent
company and not
13. The
appellant was duly proposed as a candidate for such re-run election. The board
of the respondent company refused to accept the appellant’s candidature
relying on Article 41(g) of the Articles of Association which reads as follows:
14. The
board of the respondent company were wrong. First, the election was by the
Communities Committee, not the respondent company, and the Articles of
Association would not apply at all. Secondly, Article 41(g) applies only to a
person who is a director and when such director is convicted of an indictable
offence. The convictions of the appellant relied
15. While
these convictions did not disqualify the appellant from being a candidate and
if successful from being a director of the respondent company they did impose
an ethical obligation on him to disclose these convictions when putting himself
forward as a candidate. The convictions and also the date of commission of the
respective offences were quite recent and not in the dim and distant past. They
were unknown to the board of the respondent company and apparently, so far as
one can gather, to the electorate in general and were only discovered shortly
before the intended re-running of the election. The offences were treated as
minor offences and were accordingly tried summarily in the District Court and
on appeal therefrom in the Circuit Court and perhaps the appellant might have
some explanation for the offences and in particular as to whether Mr.
O’Brien was ever repaid his £11,000. No such disclosure or
explanation was made by the appellant however nor was any explanation proffered
to this Court
16. We
were informed by counsel for the respondent company that since the date of the
judgment and order of the High Court of the 29th of July 1996 the respondent
company has altered its rules and counsel submitted that the whole matter is
now moot. However, there is no evidence of the altered rules but the passage of
time certainly leans against any declaration that the appellant is a director
of the respondent company nominated by the Rathkeale district, the present
incumbent (assuming the vacancy has been filled in the meantime) not being a
party to these proceedings.
17. What
the appellant is seeking in these proceedings is equitable relief by way of
injunctions and a declaration. The learned trial judge, in the course of his
judgment, referred to the equitable maxim
18. I
think that the learned trial judge was correct in his reliance on that maxim as
one of the grounds for refusing the appellant’s claim in these
proceedings. I, too, would rely on the maxim together with the other
observations which I have made above and I would dismiss this appeal.