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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Quinn & Ors -v- Irish Bank Resolution Corporation Ltd & Ors [2012] IEHC 261 (04 July 2012) URL: http://www.bailii.org/ie/cases/IEHC/2012/H261.html Cite as: [2012] IEHC 261 |
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Judgment Title: Quinn & Ors -v- Irish Bank Resolution Corporation Limited & Ors Neutral Citation: [2012] IEHC 261 High Court Record Number: 2011 4336P Date of Delivery: 04/07/2012 Court: High Court Composition of Court: Judgment by: Kelly J. Status of Judgment: Approved |
Neutral Citation Number: [2012] IEHC 261 THE HIGH COURT COMMERCIAL [2011 No. 4336 P.] BETWEEN CIARA QUINN, COLETTE QUINN, BRENDA QUINN, AOIFE QUINN, SEÁN QUINN JR. AND PATRICIA QUINN PLAINTIFFS AND
IRISH BANK RESOLUTION CORPORATION LIMITED AND KIERAN WALLACE DEFENDANTS AND
SEÁN QUINN, DARA O’REILLY AND LIAM MCCAFFREY THIRD PARTIES JUDGMENT of Mr. Justice Kelly delivered on the 4th day of July, 2012 The Issue Background 3. The first defendant was formerly known as Anglo Irish Bank Corporation (Anglo) and the second defendant (Mr. Wallace) was appointed as share receiver by Anglo on foot of a number of share pledges and charges on 14th April, 2011. 4. In these proceedings, the family seek a series of declarations of invalidity in respect of charges of shares and personal guarantees made between Anglo and members of the family. The charges and the guarantees were given in respect of borrowings which had been made on a colossal scale. The family also seek declarations of invalidity concerning the appointment of Mr. Wallace as share receiver. 5. It is not necessary for me to dwell in any detail upon the extremely serious allegations which are made by the family against Anglo in support of their claim for declaratory relief. The allegations have already been synopsised by Charleton J. in a judgment in these proceedings which he delivered on 23rd February, 2012, [2012] IEHC 36. He said:-
8. On 10th October, 2011, I granted Anglo leave to issue and serve third party notices on each of the third parties. 9. The third party notice served on Mr. Quinn claims an indemnity from him in the following terms:-
11. On 6th December, 2011, Mr. Quinn delivered a full defence to this statement of claim. 12. Meanwhile, Mr. Quinn, on 10th November, 2011, presented a bankruptcy petition to the High Court of Northern Ireland seeking his adjudication as a bankrupt. The petition was heard by the Master in Bankruptcy who acceded to the application. In his petition, Mr. Quinn asserted that although not then a resident of Northern Ireland, his centre of main interest was at Derrylin, Co. Fermanagh. 13. On 17th November, 2011, Anglo filed an application in the High Court in Northern Ireland to annul the bankruptcy on the basis that that court lacked jurisdiction to open main bankruptcy proceedings under Article 3(1) of EC Regulation 1346/2000. It asserted that the ex parte bankruptcy order had been obtained through misrepresentation and/or non-disclosure. 14. Anglo’s application came for hearing before Deeny J. who reserved judgment. On 10th January, 2012, that judge, in a comprehensive judgment, acceded to Anglo’s claim and annulled Mr. Quinn’s bankruptcy in Northern Ireland. 15. Thereafter, Anglo applied to have Mr. Quinn adjudicated a bankrupt in this jurisdiction and succeeded in so doing. 16. Following adjudication, the Assignee instructed counsel to appear in this litigation and I was informed that it was not the intention of the Assignee to defend Anglo’s claim made against Mr. Quinn in these third party proceedings. 17. On 22nd February, 2012, Anglo brought a motion before the court seeking directions concerning the hearing of the third party proceedings. In particular, Anglo asked the court what, if any, further steps should be taken in the third party proceedings against Mr. Quinn in circumstances where he had been adjudicated a bankrupt and the Assignee did not intend to defend the proceedings. As an alternative, I was asked to make an order that Mr. Quinn be deemed to admit the validity of and be bound by any judgment and/or decision given in the action and on any question specified in the third party notice. In the further alternative, I was asked that, in the event of Anglo being held liable in respect of all or part of the plaintiff’s claim, that an order be made that Mr. Quinn be deemed to admit liability in respect of the indemnity and contribution and further relief claimed against him in the third party notice and that Anglo be at liberty to proceed by way of a motion for judgment in default against Mr. Quinn. 18. When this motion first came on for consideration by the court on 27th February, 2012, Mr. Quinn appeared and indicated a desire to argue that he should be permitted to defend Anglo’s third party proceedings. The matter was adjourned to enable him to prepare to argue that proposition. When the application came to hearing, Mr. Quinn was represented on a pro bono basis by senior and junior counsel. 19. This is my judgment on the question which I identified in the first paragraph of this judgment. Effect of Adjudication as a Bankrupt
(2) Subject to the provisions of this Act, the title of the Official Assignee to any property which vests in him by virtue of subsection (1) shall not commence at any date earlier than the date of adjudication. (3) The property to which subsection (1) applies includes – (a) all powers vested in the bankrupt which he might legally exercise in relation to any property immediately before the date of adjudication; (b) all property which was the subject of any conveyance or transfer which sections 57 , 58 and 59 declare void as against the Official Assignee, subject to the rights of any persons which are preserved by those sections. (4) The property to which subsection (1) applies does not include – (a) property held by the bankrupt in trust for any other person, or (b) any sum which vests in the Official Assignee under section 7 (1) (a) of the Auctioneers and House Agents Act, 1967 , or section 30 (i) of the Central Bank Act, 1971 . (5) Without prejudice to any existing principle or rule of law or equity, established practice or procedure in relation to damages or compensation recovered or recoverable by a bankrupt for personal injury or loss suffered by him, property which is acquired by or devolves on a bankrupt before the discharge or annulment of the adjudication order (in this Act called ‘after-acquired property’) shall vest in the Official Assignee if and when he claims it.” 22. These statutory provisions divest a bankrupt of his property automatically upon adjudication by operation of law. The bankrupt no longer maintains any interest in the property. 23. As is clear from the section, the property vests in the Assignee. What are the Assignee’s powers in respect of the property? The Assignee’s Powers
(c) to compromise all debts and liabilities capable of resulting in debts and all claims, present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the bankrupt or arranging debtor and any debtor and all questions in any way relating to or affecting the assets or the proceedings on such terms as may be agreed and take any security for the discharge of any debt, liability or claim, and give a complete discharge in respect thereof, (d) to institute, continue or defend any proceedings relating to the property.” 26. The Assignee was unable to discern any benefit to be derived for Mr. Quinn’s creditors from defending the third party claim. That was a perfectly proper basis for the Assignee to decide not to defend. Creditors of a Bankrupt
(2) This section shall not affect the power of a secured creditor to realise or otherwise deal with his security in the same manner as he would have been entitled to realise or deal with it if this section had not been enacted.” 29. In the present case, Anglo makes a twofold claim against Mr. Quinn. The first part of the claim is for an indemnity as contemplated by the Civil Liability Act 1961. The second is for damages for negligence, breach of warranty of authority and deceit. Whilst these are framed as separate claims, counsel on behalf of Anglo assured me that the claim for damages would not be pursued should the family fail in their action against Anglo. Thus, although two separate heads of claim have been identified, they will be pursued only in circumstances where there is a finding in the principal action in favour of the family against Anglo. 30. What is not in doubt is that the claim made by the Bank against Mr. Quinn is for damages and is directed towards the assets or estate of Mr. Quinn. This is an important matter to bear in mind for the following reasons. 31. There is a distinction between proceedings which seek to enforce a legal obligation sounding in damages against a bankrupt and those which relate to his personal conduct or misconduct. 32. The matter is put succinctly in the Law of Insolvency (4th Ed.) (2009) written by Prof. Fletcher. At para. 7-008. he says:-
33. The claim made against Mr. Quinn in these third party proceedings is not one of the personal claims envisaged in that passage which would exclude the intervention of the bankruptcy court. Irish Law 35. The position in English law is that a bankrupt has no standing to continue to defend or prosecute litigation after his adjudication save in the exceptional circumstances already alluded to. Anglo argues that a similar position obtains in this jurisdiction. It is with a view to obtaining a determination to that effect that the current motion is brought. English Law 37. The judgment of the court was delivered by Hoffmann L.J. (as he then was). 38. In the course of his judgment, he said:-
40. The judge then went on to consider the question of the bankrupt as plaintiff. Whilst that is not of direct relevance in the instant case, there are some observations which are pertinent. He pointed out that the property which vests in the trustee includes “things in action”. The same position obtains in this State. He said:-
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. This distinction was the basis of the decision of the Court of Appeal in Dence v. Mason [1879] W.N. 177 in which a bankrupt wished to appeal against an order made before the bankruptcy granting an injunction to restrain passing off and ordering him to pay costs. His trustee declined to appeal but the court said, at p. 177, that the bankrupt himself could appeal against the injunction ‘which was a personal order against him, notwithstanding the bankruptcy, though he had no interest in the order as to costs, his estate being now vested in the trustee.’ This implies that the bankrupt would not have been entitled to appeal against an order which was enforceable only against his estate. This appears clearly from the decision of the House of Lords in Rochfort v. Battersby (1849) 2 H.L. Cas. 388. 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.’”
46. Given the similarity in the statutory provisions being considered by the Court of Appeal in Heath v. Tang and those which obtain in this jurisdiction, I am invited to hold that Irish law on this topic is precisely as the same as English law and that therefore Mr. Quinn has no entitlement to defend the third party proceedings. Mr. Quinn’s Contentions 48. Over and above that, however, he alleges that he has a constitutional entitlement to defend proceedings of this type. He alleges that as his good name is put to the hazard in these proceedings he has a personal constitutional right to defend it. 49. He says that this right of defence is one which derives not merely from the provisions of the Constitution but is also guaranteed to him under the European Convention on Human Rights and in particular Article 6(1) thereof. He contends that the Assignee’s decision not to contest the proceedings has no relevance. That is because the Assignee only has power to defend proceedings pertaining to the bankrupt’s property. The Assignee has no power over and above that, it is claimed. 50. It is said that the court must construe the provisions of the bankruptcy legislation in a manner which is consistent with Mr. Quinn’s alleged rights of defence derived from the Constitution and the European Convention on Human Rights. The Nature of the Claim 52. Paragraph 45 of the third party statement of claim reads:-
Secondly, the first defendant seeks damages as against the third parties for a conspiracy…nevertheless and without prejudice to the foregoing, as is apparent from the third party statement of claim and in particular paragraphs 36 – 57 thereof, the first defendant contends that if the plaintiffs or any of them succeed in obtaining the relief claimed in respect of the security agreements and in particular for the reasons pleaded at paragraphs 89, 90, 91, 100 and 101 of the third party statement of claim then the third parties were guilty, inter alia, of misrepresentation and/or breach of warranty and/or fraud and/or negligence. Further, the third parties conspired and combined together to commit those misrepresentations and to breach their warranty of authority and to deliberately mislead the first defendant with regard to the matters pleaded at paragraph 41 of the third party statement of claim and to fraudulently obtain loans and/or a continuation of loans or facilities from the first defendant. For the reasons comprehensively set out in the third party statement of claim, in the event that the plaintiffs succeed in their claim as described above, the first named defendant will contend that the third parties thereby caused or contributed to any loss or damage that may be suffered by the first named defendant. In those premises, the concerted and coordinated actions on the third parties constituted a conspiracy to injure and harm the first defendant and/or a conspiracy to cause harm to the first defendant by unlawful means.” 55. Mr. Quinn has delivered a defence to these allegations. He denied them all. He also alleged that Anglo knew the exact and real purpose of the loans which was for the purpose of meeting the margin calls on the contracts for difference positions held in Anglo and that it facilitated acquiesced and/or insisted upon him taking the loans so that the margin calls would be met thus protecting the share price of Anglo. 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. In support of that contention, reliance is placed on a number of cases. The first of these was Howard v. Crowther [1841] 8 M&W 601. In that case the plaintiff brought a claim for damages against the defendant for the seduction and loss of services of his sister and servant. The defendant pleaded that the plaintiff had become a bankrupt and therefore the cause of action vested in the plaintiffs’ Assignee. The plaintiff argued that he had a right of action for a tort which was purely personal and did not pass to his Assignee. Lord Abinger C.B. in the course of his judgment stated:-
58. The next case relied upon is Beckham v. Drake [1849] HL 579. The passage relied upon from that case reads:-
61. The only Irish case relied upon by Mr. Quinn is Siroko v. Murphy [1955] I.R. 77. There the Supreme Court had to consider whether a plaintiff who had become a bankrupt was entitled to continue proceedings which he had instituted. Notice of trial had been served in the action but between then and the hearing, the plaintiff became a bankrupt. The Assignee indicated that he did not wish to continue with the action. When the case came on for hearing in the High Court, the Assignee was not represented. The plaintiff told the court that he was not in a position to proceed and the action was dismissed with costs. The plaintiff appealed. Maguire C.J. stated in the course of his judgment:-
63. A New Zealand case called De Alwis v. Kum decided by Courtney J. in the High Court on 24th March, 2010, appears to me to be much more on point insofar as Mr. Quinn’s contention is concerned. In that case, the second defendant, a Mr. Chean and his former wife applied to set aside a judgment entered against him in 2007. The basis for the application was that the plaintiffs mislead the court at the hearing which led to the judgment. The issue which fell for determination was whether either Mr. or Mrs. Chean had standing to bring the application. It was alleged that Mr. Chean did not have standing because he was an undischarged bankrupt whose rights in the proceedings including the right to apply to set aside the judgment vested in the Official Assignee. One of the claims made by Mr. Chean was that the judgment against him contained findings of a personal nature such that the right to set aside the judgment remained vested in him. Courtney J. accepted that there are, of course, some rights of action and some liabilities that are personal to the bankrupt and over which the Official Assignee has no control. 64. Having referred to the judgment of Hoffman L.J. in Heath v. Tang, Courtney J. recounted an argument made by Mr. Chean’s counsel to the effect that the findings made against him were of a quasi criminal nature and affected his personal rights and reputation. Mr. Chean submitted that he had the right to attack a judgment debt for fraud because his right to do so was preserved as a personal right of action under the New Zealand Bill of Rights Act 1990. The judge rejected those propositions and went on to say:-
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. Right of Access to the Court 68. Much well known case law on the constitutional right of access to the courts was relied upon by Mr. Quinn in support of the argument that a refusal to allow him to defend the third party claim would wrongly deny him access to the court. There is no dispute between the parties but that there is a constitutional entitlement on the part of persons to have access to the courts. In this regard, I need do no more than cite from the judgment of Keane C.J. in In Re Article 26 in ss. 5 and 10 of the Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 where he said:-
71. In support of this contention, reliance was placed on the decision of the Supreme Court in In Re Haughey [1971] 1 I.R. 217 and in particular the passage from O Dálaigh C.J’s judgment where he accepted the proposition that there were four protections which must be afforded to a person whose good name is under attack at an inquiry. Those entitlements are:-
(b) an entitlement to cross examine, by counsel, an accuser; (c) an entitlement to give rebutting evidence; and (d) a right to address the tribunal, by counsel if he wishes, in his own defence.
73. While Mr. Quinn accepts that the right of access to the court is not an absolute one and may be restricted in specific circumstances, he nonetheless contends that his entitlement to assert his right to a good name means that the 1988 Act must be interpreted in such a way as to permit him to defend these third party proceedings. 74. Many of the general principles which were relied upon on this topic of Mr. Quinn’s constitutional rights were not disputed by Anglo. It accepts that he enjoys a right to his good name and that in many cases the defence of that would entitle a person to have access to the courts to vindicate or defend it. However, it argued that that right is not one which is engaged at all in these proceedings. 75. First, it is argued that the constitutional entitlement to protection of a good name is engaged only where a court or tribunal will be required to make a finding that adversely affects such good name or reputation. For reasons which I will develop in a moment, it is said that no such engagement will take place here. Second, it is said that when in litigation something is said which is adverse to one’s character or may reflect poorly upon one, it does not mean that the constitutional entitlements identified by Mr. Quinn are triggered. Third, it is submitted that it must be recognised that Mr. Quinn is a bankrupt and therefore is not in the same position as any other party to litigation. Bankruptcy, whilst granting some very considerable advantages to a bankrupt, also imposes disabilities. It is argued that significant disabilities are created for creditors or claimants against a bankrupt. The bankruptcy code consists of checks and balances. One of the consequences for a bankrupt is that there is a very limited right of defence of proceedings. I will consider these propositions in turn. Good Name 77. Anglo contends that a system of adversarial litigation cannot accommodate a proposition whereby anyone whose conduct comes under consideration or scrutiny in the course of proceedings acquires rights with a view to protecting their good name or reputation. Every witness, it is said, who goes into the witness box is at risk that their testimony will not be believed and that adverse findings may be made against them. But it is not the law that every such person acquires a right to defend their good name or reputation. In support of this argument, reliance is placed upon De Alwis v. Kum (supra) and on a number of Irish cases. 78. The first of these Irish cases is Barlow v. Fanning [2002] 2 IR 593. In that case, three members of the staff in the Economics Department of University College Cork, sued the professor and head of that department and the university. The claim was for damages, negligence and breach of contract. Serious allegations were made against the professor concerning the way in which he conducted the business of the department. They included the use of abusive and intimidating language to the plaintiffs, discrimination against them, isolation of them and the frustration of their chances of promotions. The plaintiffs claimed that the university was vicariously responsible for the alleged acts or omissions on the part of the professor. 79. Subsequent to the commencement of the proceedings, the plaintiff discontinued the action against the professor. The professor formed the view that the plaintiffs had adopted this procedure in order to prevent him from defending his reputation and that it was a device designed to facilitate a settlement between the plaintiffs and the university on which he would not be consulted. He applied unsuccessfully to be rejoined in the action before the Master whose decision was reversed by Johnson J. On appeal to the Supreme Court, Johnson J. was reserved. The Supreme Court took the view that there were no exceptional circumstances to permit a defendant to be joined against a plaintiff’s wishes such as were present in Fincriz v. Ansbacker & Company Limited (Unreported, High Court, 20th April, 1987). In the course of his judgment, Keane C.J. said this:-
82. It is possible in litigation to have findings made against somebody who is not a party to them without an entitlement of the type for which Mr. Quinn contends. In the current litigation, there may well be findings against Mr. Quinn in the main proceedings between the family and Anglo or indeed in the third party proceedings against the other third parties but he has no entitlement to be heard in respect of those. In the third party proceedings against him, if he is not allow to defend, judgment will be obtained against him by operation of law and the allegations which have been made and indeed denied by him will remain undecided. 83. Finally, on this aspect of the matter it has to be borne in mind that bankruptcy provides considerable advantages for a bankrupt. But protection from creditors comes at a cost. One of those costs is that when a claim of a non-personal nature is made against the bankrupt which may result in a judgment against his estate, the decision on whether or not to defend such a claim resides in the Assignee. Such a well established construction of the bankruptcy legislation does not, in my view, do violence to Mr. Quinn’s rights. 84. I am satisfied that a refusal to allow Mr. Quinn to defend these third party proceedings does not infringe his constitutional rights. European Convention 86. That Article reads:-
88. The first of them was Golder v. United Kingdom [1975] 1 EHRR 524 concerned the entitlement of a convicted prisoner who was refused permission by the Home Secretary to write to a solicitor with a view to instituting civil proceedings for libel against a prison officer. 89. The second was the case of Holy Monasteries v. Greece [1994] 20 EHRR 1 which concerned a limitation on the right to bring proceedings to particular interested parties to the exclusion of others. That was held to be a deprivation of the right of access guaranteed by Article 6. 90. Neither of those cases dealt with the position of a bankrupt. The third case relied upon by Mr. Quinn did so. It is Luordo v. Italy [2003] ECHR 372. 91. In that case the applicant had a bankruptcy order made against him. One of the effects of that order was that he was prevented from taking legal proceedings to defend his interests. In that regard he alleged a violation of Article 6(1) of the Convention. Whilst Signor Luordo wished to bring a case as opposed to defend one, the principle is the same. 92. The European Court of Human Rights in the course of its judgment on the Article 6 claim said this:-
82. The Government contended that the purpose of preventing bankrupts from taking legal proceedings was to protect a third party right, namely ‘the interests of the bankrupt’s creditors’. Furthermore the restriction applied solely to issues concerning pecuniary rights and, accordingly was within the State’s margin of appreciation. The Government added that the bankrupt was in any event represented in court by the trustee in bankruptcy. Lastly, the applicant had not sustained any loss, as he had instituted various court proceedings while the bankruptcy proceedings were pending (for instance, an application on 5 April 1996 for a referral to the Constitutional Court and an application on 17 April 1996 for a stay of execution of the order for sale).”
84. The court notes that the restrictions on the applicant’s ability to take legal proceedings concerned disputes over issues of a pecuniary nature. The civil limb of Article 6 is therefore applicable. 85. Furthermore, the ‘right to a court’ is not absolute. It is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (see Ashingdane v. United Kingdom, judgment of 28 May 1985). However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent that the very essence of the right is impaired; lastly, such limitations will not be compatible with Article 6(1) if they do not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim to be achieved (see Levages Prestations Services France, judgment of 23 October 1996). 86. The court considers that the purpose of the restriction on the applicant’s capacity to make legal proceedings is to assign the role of representing the bankrupt in court in respect of issues arising over the bankrupt’s pecuniary rights to the trustee in bankruptcy as, once the bankruptcy order has been lodged, he is responsible for the administration of the bankrupt’s assets. Indeed, it is self evident in the court’s view that disputes over such matters may have major repercussions on the assets and liabilities of the bankrupt estate. The court consequently finds that the restriction is intended to protect the rights and interests of others, namely those of the bankrupt’s creditors. The court must go on to examine whether the consequences suffered by the applicant were proportionate to the legitimate aim pursued. 87. The restriction on the applicant’s right of access to a court is not in itself open to criticism. However, the risk with such a system is that it may unreasonably limit the right of access to a court, particularly if the proceedings are protracted, as they were in the instant case which they lasted fourteen years and eight months. In that connection referring to its findings with respect to Article 1 of protocol No. 1, the Court considers that, contrary to what the Government have affirmed, the delays in the proceedings were not attributable to the failure of the attempts to sell the applicant’s house at auction or the applicant’s conduct. Consequently, it finds that there was no justification for restricting the applicant’s right of access to a court for the full duration of the proceedings, since, while in principle, a restriction on the right to take legal proceedings is necessary to achieve the aim pursued, the necessity will diminish with the passage of time. In the Court’s view, the length of the proceedings thus upset the balance that had to be struck between the general interest in securing the payment of the bankrupt’s creditors and the applicant’s personal interest in having access to a court. The inference with the applicant’s right was accordingly disproportionate to the aim pursued.” 95. The court held that a restriction on the applicant’s right to access was not in itself open to criticism. The restriction was intended to protect the rights and interests of the bankrupt’s creditors. It went on to examine whether the consequences suffered by the applicant were proportionate to that legitimate aim. A restriction on the right to take legal proceedings was necessary to achieve that aim. The court held that necessity diminished in time and, given the length of time that Signor Luordo was to be deprived of his entitlement, the restriction was disproportionate. 96. The provisions of ss. 44 and 61 of the 1988 Act and in particular s. 61(3)(d) have as their object, the protection and rights and interests of Mr. Quinn’s creditors. As the European Court of Human Rights has held, the restriction on Mr. Quinn’s right of access to a court is not in itself open to criticism. The proceedings in Signor Luordo’s case lasted fourteen years and eight months. It was because of the length of time involved that the European Court of Human Rights found in favour of the applicant. 97. I do not accept that there is any comparison to be made between the facts in the Luogo case and the position of Mr. Quinn. The decision in Luogo does not have the wide ranging implications which are contended for by Mr. Quinn. It is narrow and confined and the facts are not at all comparable to his case. 98. Mr. Quinn has not, in my view, demonstrated that his rights under Article 6(1) of the Convention are infringed or likely to be infringed by answering the question posed at the outset of this judgment in the negative. Disposal 100. I answer the question posed at para. 1 of this judgment in the negative.
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