Mr Justice Kevin Feeney reserved judgment in the a motion by the minister to set aside the claims by investment fund Horizon Growth NV and businessman Piotr Skoczylas, because they lack the required legal standing to bring the proceedings as neither was a member of IL&P when the recapitalisation order was made.
The judge said that, following the conclusion of submissions from the relevant parties, he was adjourning the matter to early March. He hoped that by then he would in a position to deliver his ruling on the motion. the Judge added that the court would deal with all outstanding preliminary matters after he had given his judgment.
The minister’s motion, brought on the grounds that those taking the actions lack the necessary legal standing to do so, is one of a number of key preliminary issues being decided by the court.
Mr Skoczylas and his Maltese-registered company, Scotchstone Capital, are among a number of litigants challenging the July 2011 recapitalisation on grounds including that it unlawfully imposes an unacceptable €2.7bn burden on Irish and EU taxpayers and hinders the free movement of capital.
Two IL&P shareholders, Gerard Dowling and Padraig McManus, previously told the court they were supporting Mr Skoczylas. In separate proceedings, the Curacao-based Horizon is also challenging the recapitalisation.
Lawyers for the minister have argued that neither Horizon, which bought 6m shares in IL&P Group Holdings between Feb and July 2011, nor Mr Skoczylas, whose company bought €200,000 worth of shares, appeared on the bank’s register of members in Aug 2011 when they brought their challenges.
They claim that at the relevant time, both Horizon’s and Mr Skoczylas shares were registered to other entities, who held the shares for the parties’ beneficial ownership.
Section 31 of the 1963 Companies Act required the names of members to appear on the register of members of IL&PGH, he argued. This was clearly not the case here and both challenges should be set aside.
Both Mr Skoczylas and Horizon tried to have their names included on the register after they brought their challenges, counsel said.
Mr Skoczylas and Horizon reject the minister’s claims and contend they are members of the company. They claim the manner in which they held the IL&GH shares represents a well-established norm in international financial investment for many years.
They also claim the minister’s construction of membership is restrictive and he is seeking to circumscribe the rights of shareholders.
John Gordon SC for Horizon said the minster’s definition of member was “artifical” and described the motion as “unfair and unjust” to shareholders whose holding was registered in the names of a nominee.