BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

1. These proceedings comprise the second of two primary actions in a vast panoply of litigation which is unique in Irish legal history as to duration, complexity, range and multiplicity of issues. In essence it revolves around an intended lead and zinc mine near Navan, Co. Meath. The prime mover at the heart of this litigation is Mr. Michael Wymes, who at all material times was managing director of Bula Limited, owner of the proposed mine, (Bula) and also through a holding company a major shareholder therein. He orchestrated the affairs of Bula from its incorporation in 1971 and in that regard was instrumental in launching on its behalf and other interested parties the primary actions to which I have referred. The Bula mining lands adjoin property which comprises a lead and zinc mine operated by Tara Mines Limited (Tara). The first action (Bula I) was in essence against Tara and the State. The trial before Lynch J. continued for 277 court days. The principal witness for the plaintiffs was Mr. Wymes and he gave evidence for about 120 days. An enormous quantity of documents comprising upwards of a hundred box files were introduced in evidence. The learned trial judge delivered judgment (the judgment) on 6th February, 1997 in which he rejected the case made on behalf of the plaintiffs against both sets of defendants and he dismissed the action against all of them. In the introductory part of the judgment Lynch J. commented on the statement of claim in Bula I and set out the essence of the plaintiffs' claim and the defendants' response thereto in the following passage at p.p. 2 and 3:-

2. An extensive notice of appeal has been served on behalf of the plaintiffs challenging the judgment and order of Lynch J.

3. The judgment contains inter alia a wide-ranging analysis of much of the history relating to the Bula saga as it unfolded over almost a quarter of a century from 1971 and it includes many findings of fact, some of which it is submitted on behalf of the first four defendants herein have significance in these proceedings i.e. the second action to which I have referred (Bula II) which has been brought by the same plaintiffs as in Bula I and is against Mr. Crowley (the receiver appointed over the assets of Bula in 1986) and the second, third and fourth defendants (the banks) which provided funds for Bula's activities. The remaining defendant is a consultant mining engineering company, but the case against it has no relevance to the issue with which I am presently concerned.

4. The banks have been intimately involved in the affairs of Bula from early in the history of its mining project at Navan and the receiver likewise from the time of his appointment by the banks in 1986. Briefly stated, the case made by Bula is that the banks were negligent, deceitful, in breach of contract and in breach of trust in and about their relationship with Bula. The claims against the receiver are broadly similar. It is alleged that in consequence of the foregoing the Bula mining project and the company were effectively destroyed and the plaintiffs and each of them have suffered catastrophic losses.

5. The plaintiffs instructed a new team of legal advisers in or about November 1996, none of whom had been previously involved in this action or any earlier proceedings relating to Bula or its associates. In January, 1997 the plaintiffs were given liberty to introduce new claims against the banks and the receiver on foot of the Statute of Limitations, 1957. The possibility of such claims had arisen after the plaintiffs' new team of advisers were instructed and the relevant time-bar relating to the status of the receiver and of debts due to the banks was alleged to have expired. In response, the banks contend that time has not run against any of them by reason of, inter alia, alleged acknowledgements and also a payment binding on Bula made on behalf of the plaintiffs by the State. It is submitted on behalf of the receiver by way of defence to the limitation issue that time has not run against him because, inter alia, he has been prevented from disposing of the assets of Bula and from carrying out his functions as receiver by the challenge to the legality of his appointment and of his powers which has been mounted by the plaintiffs against him in this action from its inception and that the plaintiffs are estopped from relying on the time-bar alleged. By way of alternative defence, the receiver also relies on acknowledgements of the debts owing to the banks and of title and payments which it is alleged are binding on Bula.

6. It is evident that the outcome of the Statute of Limitations issue could have far-reaching consequences in terms of the action proper. Accordingly, I directed that it should be tried by way of preliminary issue on affidavit with liberty to all parties to call oral evidence. I also directed that the opening statement by counsel for the plaintiffs should include not only matters relevant to the preliminary issue, but also all other issues in the action except damages and the case against the consultant mining engineers.

7. As to findings made by Lynch J. in the judgment; I have ruled that findings made by him which are relevant to any issue in the present action are not reviewable herein and the parties are not entitled to re-open such matters. I reached that conclusion on the ground that, although the parties are not the same in both actions, the facts relating to each are intimately intertwined; that some factual matters and findings may be common to issues in both actions; that many such matters entailed an assessment by Lynch J. of a huge volume of evidence adduced in course of a trial of monumental length and if re-opened would add greatly to the duration and expense of the present trial; and that, at least until the outcome of the appeal to the Supreme Court in Bula I is known, there was no acceptable reason in justice to revisit such findings and to permit the plaintiffs to challenge them. I am satisfied that for the foregoing reasons it is not in the interest of justice to re-open relevant findings made by Lynch J. in Bula I and that it would be an abuse of the process of the court to do so. Mr. Traynor, leading counsel for the plaintiffs, did not challenge that ruling or seek to argue against it.

8. After the opening of the plaintiffs' case, Mr. Wymes was called to give evidence viva voce and in course of it Mr. Traynor raised with him a payment by the State of interest due by Bula to Northern Bank Finance Corporation, (N.B.F.C.), one of the banks, and whether Bula had authorised the State so to do. If that payment (i.e. £56,760.90 made on 19th February, 1986 the fact of which is not in dispute) had the authority of Bula then the time-bar issue against N.B.F.C. fails. Mr. Nesbitt, counsel for the banks, challenged the right of the plaintiffs to re-open the question as to whether the payment was binding on Bula having regard to findings relating thereto made by Lynch J. in the judgment. It emerged in course of debate and an examination of the statement of claim in Bula I that the relationship between the State and Bula, including the payment of the interest in question, had been investigated by Lynch J. in course of the trial and that rulings relating thereto had been made by him in the judgment. I was informed that in Bula I evidence was led on behalf of the Plaintiffs to the effect, inter alia, that the payment of interest in question had been made without the knowledge or authority of Bula and amounted to an unlawful course of conduct which was part of the case in negligence and breach of contract which it made against the State. It was also submitted by Mr. Traynor that the relevant findings by Lynch J. are not immune from challenge in this action, notwithstanding my ruling, because they were not fundamental to the finding made by the trial judge on the relevant issue in that he could have held, without making a formal finding as to the payment in question, that even if it had not been authorised by Bula, the unlawful making of the payment did not sound in damages and the claim would have failed for that reason also. Accordingly, therefore, the circumstances and the effect of the payment made by the State could be re-opened in Bula II. In short, it was submitted that this court is not bound by facts found by Lynch J. in Bula I which were not essential to the determination of issues in that action by the learned trial judge. Although that argument was in part contrary to the ruling which I had made as to facts found by Lynch J., I did not inhibit Mr. Traynor from making a detailed legal submission in that regard.

9. I have considered the submissions and the authorities referred to by counsel and I have come to the following conclusions as to the principles of law which I should apply in deciding whether any particular matter of fact or law found by Lynch J. in the judgment should not be re-visited in Bula II and should be regarded as binding herein.

10. In my view the foregoing dictum of Dixon J. applies also in circumstances such as that in the present action where the plaintiffs, but not the defendants, are the same as in Bula I.

11. The findings by Lynch J. which are in question arise out of issues addressed by him contained in paragraph 58 of the statement of claim in Bula I under the heading "PARTICULARS OF BREACH OF DUTIES BY THE MINISTER". It is pleaded as follows:-

12. Lynch J. addressed the particulars of alleged breaches of duty by the Minister pleaded at paragraph 58 in the statement of claim (insofar as they had continued in issue) in course of the judgment and dealt with the specific matters now under review at p.181 in the following terms:-

13. Applying to these findings the foregoing yardstick as to their status in Bula II; in my opinion the following conclusions are inescapable:

14. In the light of the foregoing conclusions I rule that the finding by Lynch J. regarding the payment of the interest in question by the State to N.B.F.C. amounted to a finding that it was not an unlawful payment or one which was secret or unauthorised by Bula and it is binding on the plaintiffs in this action.