THE HIGH COURT
			1989 No. 6960P
BETWEEN
PASCAL PHELAN
			PLAINTIFF
AND
LAWRENCE GOODMAN
		                                          FIRST NAMED DEFENDANT 
AND
ZAKARIA EL TAHER
	                                                      SECOND NAMED DEFENDANT
AND 
THE HIGH COURT 
			1998  No 6979p
BETWEEN
PASCAL PHELAN
			PLAINTIFF
AND
MASTER TRADE (EXPORTS) LIMITED 
MASTER TRADE LIMITED
 MASTER CUT MEATS LIMITED 
MASTER MEAT PACKERS (KILKENNY) LIMITED 
MASTER MEAT PACKERS (LONGFORD) LIMITED 
MASTER MEAT PACKERS (INVESTMENTS) LIMITED 
MASTER MEAT PACKERS (BANDON) LIMITED 
MASTER MEAT PACKERS (EXPORTS) LIMITED 
MASTER MEAT PACKERS (OMAGH) LIMITED 
ZAKARIA EL TAHER 
MASTER MEAT ANSTALT 
NASSER EL TAHER
			DEFENDANTS  
JUDGMENT of Mr. Justice Roderick Murphy dated the 4th day of December, 2001

1. 	parties
	The moving party in this set of Motions is Mr. Zakaria El Taher, the second named Defendant in the first proceedings and Zakaria El Taher and his son Nasser El Taher, the tenth and twelfth named Defendants in the second mentioned action.  The interests of the moving parties is identical: to strike out the Notice of indemnity and the contribution dated the 26th January, 2001 by the first named Defendant in the first and by the companies (the MMP Group) in the second mentioned action. Given that identity of interest is, accordingly, convenient to refer to both of the moving parties as the El Tahers.

2. 	Notices of Motion 
	There are, in fact, four Motions before the Court: two originally returnable for the 1st March, 2001 and the others  returnable the 13th March, 2001.  The Motions returnable for the latter date are more comprehensive and form the basis for a composite application to the Court which was heard over four days from thursday the 8th to thursday the 15th November, 2001.
	In the first (1989) proceedings the Court is asked to strike out the Notice of indemnity and contribution dated the 26th January, 2001 served on Zakaria El Taher by the first named Defendant, Mr. Goodman, at the commencement of the trial fixed to take place on the 15th May, 2001. 
	Directions are also sought.  Similar reliefs were applied for to strike out the Notice of indemnity and contribution of the MMP companies.

3. 	Grounding Affidavits 
3.0	Two Affidavits were sworn in these composite applications, that of Mr. Bradshaw, Solicitor for the El Tahers’ dated the 8th March, 2001 and an Affidavit of Zakaria El Taher sworn the 1st November, 2001.  
3.1	An earlier Affidavit of Zakaria El Taher sworn on 9th September, 2000 in English proceedings in the Queens Bench Division in proceedings between Zakaria El Taher and Lawrence Goodman was filed in these proceedings.  No claim number is given.
	An application was made by the Respondents, (Mr. Goodman and the MMP companies) to disallow this Affidavit.  The Applicant, having duly served the Affidavit on the Respondents, requested its inclusion.
	The Court considered that, in view of the submissions made by Counsel on his behalf and in view of the age and distant place of residence of Mr. Zakaria El Taher that the Affidavit should be considered, de bene esse, by the Court to ascertain its relevance to these proceedings and to the Motions before the Court.
	The Affidavit deals comprehensively in over 60 pages with the involvement of Mr. Zakaria El Taher and, later, Mr. Nasser El Taher, in the MMP Group from the time of purchase of a 50% interest from Mr. Phelan on the 10th October, 1986, his involvement with Mr. Phelan from that date until the 15th April, 1987 when, as already determined by this Court in its ruling of 11th September last, in breach of contract he sold shares held by him through Master Meat Anstalt to interests controlled by Mr. Goodman. The Affidavit further deals with the period from that date to the 16th September, 1988 when Mr. Phelan, through the provision of a deadlock mechanism, sold to other interests controlled by Mr. Goodman.
	In paragraph 17 of the Affidavit Mr. El Taher stated that he makes his Affidavit in relation to all proceedings, whether in England or Ireland, relating in whatsoever manner to the MMP Group and to the surrounding circumstances relating thereto.  He further avers to the considerable effort to prepare and finalise the Affidavit as he wished it to be as comprehensive and as factual a record as possible, in case of his early decease.  It was, indeed, for this reason that the Court considered it appropriate to read the entire Affidavit.
	The Affidavit was not sworn in the proceedings before this Court and, indeed, was sworn, on the 9th September, 2000, over four months before the Notice of indemnity and  contribution, dated the 26th January, 2001, was served. No reference is made to any matter germane to this application. Furthermore neither grounding Affidavits refer to this earlier Affidavit.
	For those reasons the Court, while deeming that while it might be relevant to the proceedings, held that it was neither relevant to nor necessary for the present application.
3.2	The Affidavit of Mr. Bradshaw sworn on the 28th March, 2001 was made in support of the earlier Notices of Motion and is equally relevant to the latter Notices of Motion.
	It is significant that this Affidavit does not refer to the Affidavit of Mr. Zakaria El Taher sworn on the 9th September, 2000.
	Mr. Bradshaw refers to the extensive amended defence and counterclaim of Mr. Goodman of the 29th September, 2000.  This, he says will necessitate extensive and complex financial calculations and analyses which would require an amount of time estimated at more that half the length of the trial involving witnesses of fact and expert evidence concerning dividend payments, company property, taxation, intercompany transfers, accounts and enquiries.  If the Notices were not struck out this would necessitate Mr. El Taher and his legal team being present for the lengthy counterclaim of Mr. Goodman against Mr. Phelan and being subject to cross examination in relation to financial issues which, it is deposed, do not concern him in relation to events of some 13 years distance.
	Mr. Bradshaw asked the Court to determine, at the outset of the trial, that the Notices be struck out whether or not Mr. El Taher is needed as a witness of fact given that he is over 80 years of age and suffering from certain disabilities which are detailed (though not the subject of any exhibit) in the Affidavit.
3.3	The substantial grounds relied upon in the Affidavit are as follows:
(a) Statute of Limitations;
(b) Abuse of process;
(c) Nasser El Taher not being a party to the Joint Venture Agreements nor the     Master Anstalt Sale Agreement and having resigned as a director of the          MMP Group on October 1987;
(d) Mr. Goodman nor the MMP Group not having any legal standing to                claim under the notices because both claim in relation to the Master                Anstalt Sale Agreement signed on the 15th April, 1987 which agreement is    tainted with illegality.
	
	The Statute of Limitation ground was not proceeded with.  It was conceded that the Notice of contribution and indemnity was not statute barred.
3.4	Mr. Zakaria El Tahers Affidavit of the 1st November, 2001 which is sworn in these proceedings does not refer to his earlier Affidavit of 9th September, 2000.
	The deponent refers to the facts and matters arising in the Judgment of this Court of the 11th September,  and to the following six grounds namely:
        1.	The fraud exception maxim: ex turpi causa non oritur actio; 
        2.             The trespasser point;
        3.    	Cause of Action;
        4.	Agency;
        5.	Indemnities and the resulting estoppel to counterclaim or issue the Notices;
        6.	The exercise of the deadlock provision, Matheson Ormsby and Prentice and      	Mr. Lawrence Crowley.
	
	The deponent describes his poor state of health; that he has been a diabetic for over thirty years; that he has been informed by his doctors that his life is in danger and is now nearing its end.  He says that the circumstances surrounding the sale of the MMP Group to Mr. Goodman and to what he refers as Mr. Goodman’s subsequent unlawful actions have not only damaged his reputation and that of his family but have contributed to his ill health and have troubled his conscience for over 14 years.  He says that in 1996, having visited Mecca, he thought it proper to rectify his previous wrong doings and to clear his conscience.
	In relation to the Judgment of this Court of the 11th September, 2001 the deponent says that the Court found that the Agreement of the 15th April, 1987 (made between him and Mr. Goodman) was based on concealment, secrecy, deceit and trickery and that, accordingly, it must be dishonest and hence unlawful and/or fraudulent for each of those grounds.
	Furthermore, because of the admitted inducement by Mr. Goodman he submits that any agreement based on such inducement is dishonest and hence unlawful and/or fraudulent. 
	The finding by the Court on the 11th September, 2001 that the agreement was in breach of the Joint Venture Agreement is a further ground.
	The Court found that the Joint Venture Agreement automatically and absolutely ceased as of the 15th April, 1987.  Accordingly, Mr. El Taher says, it must follow that the exercise of the deadlock provision by Mr. Goodman in September, 1988 is illegal and/or fraudulent and/or void.
	Mr. El Taher believes that the “corporate veil” between Mr. Goodman and the companies has been lifted by virtue of the Judgment of this Court on the 11th September, 2001.  He submits that from the 15th April, 1987, Mr. Goodman is controller and shadow director of the MMP Group.  Mr. El Taher says that he does not have any beneficial rights in the Group and was acting simply on the instructions of Mr. Goodman.  He says that he  reluctantly and under duress and threat of losing the indemnities given to him by Mr. Goodman on the 15th April, 1987.
	
4.  	Replying affidavit
	Ms. Anita Kerrigan, Solicitor in the firm of Noel Smith and Partners, acting for Mr. Goodman and the MMP companies swore an Affidavit on 6th November, 2001.  She says that she is advised that many of the matters set out in Mr. El Taher’s Affidavit are scandalous in their references to Mr. Goodman and to persons and firms not before the Court.  Furthermore, the Affidavit contains matters of argument and commentary which are inappropriate. 
	Ms. Kerrigan’s Affidavit is in response to Mr. El Tahers Affidavit of the 1st November, 2001 and not to the Affidavit of the 9th September, 2000 sworn in the English proceedings.  In relation to that Affidavit, in respect of which she is advised is not relevant to the Motions before the Court, she makes no comment thereon other than to point out some differences in Mr. Taher’s versions of events.
	Ms. Kerrigan refers to Mr. Goodman’s claim that Mr. El Taher breached a duty of care owed to him in relation to the management of the company through his failure to prevent the wrong doings alleged against Mr. Phelan.  The indemnities which Mr. Goodman gave to Mr. Taher were given on the basis of warranties and representations made by Mr. El  Taher in relation to the affairs and finances of the Master Meat companies as of the 15th April, 1987.
	In relation to the second Motion against Mr. El Taher and his son, Nasser El Taher, she says that both Messrs. El Taher breached their contractual, fiduciary or other duties towards the companies of which they were directors by their failure to prevent Mr. Phelan’s wrongdoing in relation to the companies.
	The deponent says that Mr. Zakaria El Taher served a Notice of indemnity on the 16th October, 1991 in the first action in which he claimed an indemnity from Mr. Goodman in relation to the action brought by Mr. Phelan on the basis of the indemnity between Mr. Goodman and Mr. El Taher of the 16th April, 1987.
	The replying Affidavit states that the allegations of Mr. Goodman, which were denied, do not provide a legal basis for the strike out of the Notice of indemnity and contribution.  In any event the truth of these allegations cannot properly be determined in advance of the trial of the action, when the Court will have available to it all relevant evidence, as to the events and the mental states of the participants.
	The Affidavit considered of the Judgment of the 11th September, 2001 and of the grounds put forward by Mr. El Taher as referred to above.
	
5.	Deeds of Indemnity 
	The reference in Mr El Taher’s affidavit to indemnities are by Mr. Goodman to both Zakaria El Taher and to his son Nassar El Taher
5.1	The Deed of Indemnity between Zakaria El Taher, as nominee, and Lawrence Goodman, as principal, was made on or about the 14th April, 1987.  There are deletions thereon in reference to Nasser El Taher.  Mr. Goodman, as principal, is recited as representing the majority owners of Master Meat Anstalt concerned that their interest in the Master Meat Group of companies is adequately protected, that concern is recited as being aggravated by the manner in which Mr. Phelan had been managing the Master Meat Group of companies.  It was recognised by the parties that such protection of interest will involve Mr. El Taher, as nominee, negotiating with Mr. Phelan and very probably taking legal proceedings against Mr. Phelan himself.  Mr. Goodman, as principal, has requested the nominee to negotiate and to pursue all legal proceedings open to him to whatever extent the principal may decide. It is further recited that the nominee had agreed in the following terms:-
	“Now this deed witnesses that in pursuance of the said agreements and on consideration of the premises, the principal HEREBY COVENANT with the nominee that he, the principal, will at all times hereafter indemnify and keep indemnified the nominee against all costs, charges and expenses which he may now or hereafter be liable for, pay, incur or sustain in connection with the negotiations with Mr. Phelan and/or any action taken by him against Mr. Phelan and also against all sums of money whether for damages, costs, charges, expenses or otherwise however, which they or any of them (sic) may be ordered to pay in any such action.”

	It is submitted by Counsel for Mr. Goodman that this indemnity relates only to an action by Zakaria El Taher, on behalf of Mr. Goodman, against Mr. Phelan and must be strictly construed.
5.2	Because of the second deed of indemnity, the Applicants say that Nasser El Taher, who, in addition, was not a party to the Joint Venture Agreement nor to the agreement of 1987 is not a proper party to a Notice for contribution and indemnity.  He resigned from the MMP Group on the 30th October, 1987 having held the position of director on the board of several of the companies until that date.  It is submitted that he is completely indemnified by Mr. Goodman under the Deed of Indemnity of the 26th July, 1988.  
	That deed of indemnity made between Mr. Goodman as principal and Nasser El Taher and Taher Meats (Ireland) Limited (not a party to these proceedings) as nominees provides as follows:-
	“Now this indenture witnesses that in consideration of the premises, the principal hereby covenants with the nominees that he, the principal, will at all times hereafter indemnify and keep indemnified the nominees against all costs, claims, charges and expenses which they may now or hereafter be liable for, pay, incur or sustain arising as a result of a claim by Mr. Pascal Phelan and/or the Master Meat Group of companies in connection with the nominees involvement in whatsoever way in the Master Meat Group of companies and also against all sums of money whether for damages, costs, charges, expenses or otherwise howsoever, which they or any of them may be ordered to pay in any such action.”

	The Applicants submit that it is Mr. Goodman who is suing Nasser, indirectly through his allegedly illegal control of the MMP Group in proceedings relating to which he has already indemnified Nasser in the above mentioned deed of indemnity.  It is clearly necessary, in order to sustain such a submission, that the Court has to identify Mr. Goodman, who gave the indemnity, with the MMP Group of companies who served the Notice of indemnity and contribution on Mr. Nasser El Taher.
	I do not have to either interpret the provisions of this indemnity except to say that each indemnity is limited in nature.  Certainly it is arguable that they are not coterminous with the notices of indemnity and contribution which it is sought to strike out.

6.	Notices of Indemnity and Contribution
6.1	The first Notice of indemnity and contribution in Mr. Phelan’s action against Mr. Goodman and Mr. El Taher served on the 26th January, 2001 is a detailed six page document seeking indemnity pursuant to the provisions of Civil Liability Act, 1961 and  particularly Section 27, thereof in respect of the Plaintiffs claim and further seeks relief pursuant to the provisions of Order 16 Rule 12(1)(b) and (c) of the Rules of the Superior Courts.
	In addition to the Civil Liability Act claim, the Respondents claim damages for breach of contract, damages for breach of fiduciary duty, damages for negligence, damages for misrepresentation and/or deceit, a declaration of invalidity that the indemnity was procured by misrepresentation and breach of contract and that therefore the indemnity agreements between the first named Defendant and the second named Defendant of the 15th April, 1987 are null and void.  
6.2	In respect of the second named action it is claimed as follows:  damages for breach of contract, damages for conspiracy, damages for breach of fiduciary duty and breach of trust, damages for negligence and misrepresentation, etc.
6.3	The claim for a contribution under the Civil Liability Act is a claim, in relation to the first action, that part of Mr. Phelan’s loss, in the circumstances that he proves any such loss, was caused by the wrongdoing of Mr. El Taher.  A contribution claim made under Section 21 is in respect of loss caused or contributed to.  It relies on the claim made by Mr. Phelan against Mr. El Taher.  It is in this context that Mr. O’Donnell SC for the Respondents queries how in these Motions, before Mr. Phelan’s claim is heard, can Mr. El Taher say that it could never succeed or could never have succeeded on the basis of the pleadings, grounding and replying Affidavits and the findings of this Court in the Judgment of issues of the 11th September, 2001.
	The claim under the Civil Liability Act, 1961, commencing at Section 21, arises not because of any relationship or contract or legal duty between the Defendants.  Such a claim seeks an apportionment of liability as between co-Defendants.
	The second type of claim contained in the notices for indemnity and contribution is that under Order 16 Rule 1.  That is a claim that a Defendant:-
	“(b)  	is entitled to any relief or remedy related to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the Plaintiff, or 
 	  (c) 	that any question or issue relating to or connected with the same subject matter is substantially the same as the some question or issue arising between the Plaintiff and the Defendant that it should properly be determined not only as between the Plaintiff and the Defendant but as between the Plaintiff and the Defendant and the Third Party or between any and either of them.”

	This claim does not arise either from contractual indemnity but from issues which are similar or connected to the issues that are already arising between the Plaintiff and each of the Defendants.
	It is clear that in this case each of the types of contribution claims are made.
	It would appear that the claims mentioned in respect of the notices in both cases differ substantially from the case law in respect of strike out of actions in limine.
	
7.	Case Law relating to strike out motion
7.1	The Court has been referred to Supermacs Ireland -v- Katesan (Naas) Limited [2000] 4 IR 273.
	That case related to an application for the dismissal of an action unsustainable in relation to the specific performance of an agreement for a sale of lands.
	Before the statement of claim was delivered the Defendants brought a Motion seeking an Order dismissing the Plaintiff’s claim on the grounds that it was unsustainable and amounted to an abuse of process.  The Motion was refused by the High Court (Macken J.). 
	The Defendants in the Supreme Court accepted that they would not be entitled to an Order under Order 19 Rule 28 of the Rules of the Superior Courts, 1986.  Their appeal relied upon the inherent jurisdiction of the Court.
	The Supreme Court (Denham, Hardiman and Geoghegan J.J.) in dismissing the appeal held:
           1.	that the Defendants had to invoke the inherent jurisdiction of the Court since the statement of claim on its face clearly showed a cause of action and there was nothing to suggest that there was anything frivolous or vexatious about the proceedings.
           2.	that there could be no question of the proceedings being struck out at this stage on the basis that there was no concluded agreement as to deposits, as the evidence on Affidavit fell far short of certainty in relation to what, if anything, was agreed on this point and therefore, before the evidence of the trial it could not be said that there was not an implied term with respect to deposits, or an agreement that there should be no deposit or some other understanding on the matter.

	Hardiman J. referred to the legal principles to be applied in construing the Motion which were summarised in Lac Minerals -v- Chevron Corporation [1995] 1 ILRM 161 as follows:
	“The Judge acceding to an application to dismiss must be confident that no matter what may arise in discovery or at the trial of the action, the course of the action will be resolved in a manner fatal to the Plaintiffs contention.”

	It is clear, as Hardiman J. stated in relation to that case, that the position poses a very difficult hurdle for the Defendants to clear.
	Geoghegan J., at 284, referred to Jodifern Limited -v- Fitzgerald [2000] 3 IR 321 at 332 where Barron J. stated:-
	“Every case depends upon its own facts.  For this reason, the nature of the evidence which should be considered upon the hearing of an application to strike out a claim is not really capable of a definition.
	One thing is clear, disputed oral evidence of fact can not be relied upon by a Defendant to succeed in such an application.  Again, while documentary evidence may well be sufficient for a Defendant’s purpose, it may very well not be if the proper construction of a documentary evidence is disputed.  If the Plaintiffs claim is based on allegations of fact which will have to be established at an oral hearing, it is hard to see how such a claim can be treated as being an abusive process of the Court.  It can only be contested by oral evidence to show that the facts cannot possibly be true.  This however would involve a trial of that particular factual issue.
	Where the Plaintiffs claim is based upon a document as in the present case, then clearly the document should be before the Court upon an application of this nature.  If that document clearly does not establish the case been made by the Plaintiff then a Defendant may well succeed.  On the other hand, if it does, it is hard to see how a Defendant can dispute this prima facie construction of the document without calling evidence and having a trial of that question.”

	Geoghegan J. held it important to bear the above dicta in mind when applying the legal principles to that case.
	The principles had been clearly laid down in Jodifern Limited -v- Fitzgerald [2000] 3 IR 321 at 333 per Barron J. referred to in Supermac Ireland.
	The test enunciated by Barron J. is as follows:-
	“In my view, a Defendant cannot succeed in an application to strike out proceedings on the basis that they disclose no reasonable cause of action or are an abuse of the process if the Court on the hearing of such application has to determine an issue for the purpose of deciding whether the Plaintiff could possibly succeed in the action.  It is not a function of the Court to determine whether the Plaintiff will succeed in the action.  
	The function of the Court is to consider one question only, was it proper to institute the proceedings?  This question must be answered in the light of the statement of claim and such incontrovertible evidence as the Defendant may adduce.  If the claim could never have succeeded, than the proceedings should be struck out.  There is no room for considering what evidence should be accepted or how it should be interpreted.  To do the latter is to enter on to some sort of hearing of the claim itself. The Affidavits which have been filed and the Judgment of the High Court reflect an incomplete hearing of the case.  It was incomplete because the issues had not been defined by pleadings nor could they have been.  It was incomplete in the sense that the witnesses gave evidence only.  There was no cross examination nor re-examination.  Nor should there have been. 
	However, this may appear to be how the matter was approached, I am satisfied that the learned trial Judge applied to the correct test: whether the Plaintiff could succeed rather than whether he would.”

7.2	Two matters arise on the application of this test to the present case.  First the Court would have to determine a number of issues for the purpose of deciding whether the Plaintiff could possibly succeed in the action.  Secondly, the question arises whether the Affidavits filed and, indeed, the Judgment of this Court on the 11th September, 2001, reflect an incomplete hearing.
7.2.1	The first of these matters - whether the Court has to determine an issue or issues for the purpose of deciding whether the Plaintiff could succeed in this action must be answered in the affirmative.
	- In the first place there is an issue as to whether the Judgment of the 11th September, 2001 necessarily implies deceit or fraud.  This is not a matter for averments in an Affidavit as to facts but a question of interpretation of a decision of this Court which is binding unless successfully appealed.  If it were appealed then there is no finding as to the breach found on which to infer the requisite intention for deceit and/or fraud.  Quite simply the Court has not drawn out any inference of deceit and/or fraud.  There has been no combining of the breach of contract with the non disclosure of the true ownership after the 15th April, 1987.
	- The second issue is whether the Court has lifted the corporate veil between Mr. Goodman and the companies through which he held Mr. El Taher’s shares.  This is not a matter which was addressed by the Court in the Judgment on issues in September, 2001.
	- Thirdly, neither of the indemnities are coterminous with the notices for contribution and indemnity.  A cursory analysis shows the limits in those indemnities.  At least the Respondent is entitled to argue that the existence of indemnities does not entitle the Applicant to an Order to strike out the notices for contribution and indemnity.
	- Fourthly, the notices themselves are hybred in nature.  They are based both on the Civil Liability Act and on Order 16 Rule 1(b) and (c).  The contractual nexus between Mr. Goodman and Mr. El Taher has yet to be fully argued.
	- Fifthly, Mr. El Taher has served a short Notice of indemnity and contribution on Mr. Goodman in respect of the Phelan action. The Court would have to be slow to strike out a more comprehensive Notice of indemnity and contribution served in the other direction.
	- Sixthly, Mr. El Taher is a Defendant in both the first and third mentioned actions.  Accordingly, he has to be available to answer Mr. Phelan’s allegations as well as those of the MMP Group of companies. 
7.2.2	The second factor is whether the Affidavits which have been filed constitute incontrovertible evidence.  It is clear that much of the averments in the grounding and, indeed, replying Affidavits relate not to facts but to inferences and submissions. Some of the material facts are disputed and, indeed, are alleged to scandalous and to make claims against persons who are neither parties to these proceedings nor who have given evidence.
	There is clearly room for considering what evidence should be accepted or how it should be interpreted.  Applying the Jodifern test whether the Plaintiff could succeed rather than whether he would. It seems to me that each of the Defendants has established an arguable case.
	The Applicants have distinguished the position of Zakaria El Taher and Nasser El Taher.  The Court has been urged, on the basis of the Affidavit of Zakaria El Taher sworn the 1st November, 2001, that Nasser El Taher should not be penalised for the involvement of his father. It is clear that the respective role of each differed significantly even on the basis of that Affidavit and, indeed, the comprehensive Affidavit of Zakaria El Taher sworn the 9th September, 2000 in the English proceedings.  There is no Affidavit from Nasser El Taher.  The Affidavit of William Bradshaw sworn the 8th March, 2001 made on behalf and with the authority of Zakaria and Nasser El Taher, does not seek to distinguish the position of one from the other in these motions.
	Mr. Bradshaw’s Affidavit, at paragraph 10 submits that one of the grounds for striking out the Motion is the fact that Nasser El Taher was not a party to the Joint Venture Agreements, nor the Master Anstalt Sale Agreement and that he had resigned as a director of the MMP Group since October, 1987.  
	The Court accepts, however, that there are significant differences.  Notwithstanding, both were at material times directors of the MMP Group of companies.  Mr. Nasser El Taher is a Defendant in the Master Trade action.  Applying the test whether the MMP Plaintiffs could succeed, it seems to me that an arguable case is made such as to disentitle Nasser El Taher to the Order sought, notwithstanding that he was not a party to the Joint Venture Agreement.
	Mr. Bradshaw further submits that the strike out of the Notice of indemnity and contribution will result in significant savings of both costs and the Courts time and will assist justice for all the parties involved.  Given the fact that both of the Messrs. El Taher are Defendants in one or other of these actions it does not seem to me that the striking out of the notices of indemnity and contribution will significantly reduce their involvement.  It is unfortunate that the complexity of the case has involved 52 days of trial and will involve more time and terms of oral evidence. However, the determination of this Motion in favour of the Applicants will not affect the complexity of these proceedings.
	In relation to Nasser El Taher, whom Zakaria El Taher submits is completely indemnified by Mr. Goodman as to all eventualities in the Deed of Indemnity (see paragraph 26(vi)(b)) the latter submits that Mr. Goodman, as an indemnifier, is now suing Nasser (indirectly through his illegal control of the MMP Group) in proceedings relating to which he has already indemnified Nasser.  He submits that the Court has already lifted the corporate veil pursuant to paragraph 2(1) of the Judgment of the 11th September, 2001.  I propose to deal with this matter under the general submission relating to the lifting of the corporate veil.
	
8	Submissions on Lifting the Corporate Veil
8.1	Mr. El Taher submits that the purported “corporate veil” in relation to the agreement of the 15th April, 1987 is and was, for all intents and purposes, lifted pursuant to the admission made by Mr. Goodman on the 29th September, 2000.  That admission was as follows:-
     “(a)	that for the purpose of these proceedings, Mr. Goodman is and was at all material times the owner of Tarsos Anstalt;
     (b)	that accordingly, he acquired through Tarsos Anstalt the share holding in the Master Meat Anstalt on or about the 15th April, 1987”.

	It is submitted that it must follow that Mr. Goodman was at all relevant times, since the 15th April, 1987 to date, the controller and shadow director of the MMP Group.  This submission is, of course,  based not on the Judgment but on a purported deduction from the admission by Mr. Goodman on 29th September, 2000.  It does not purport to identify Mr. Goodman with the companies - controller/director does not imply identity - nor does it imply a joint or several liability.  No claim can arise for personal liability as a shadow director under the 1990 Companies Act which, clearly, did not apply to actions before the date of coming into operation of the relevant section of that Act.  Neither is there any claim in respect of insolvency making the controller/director personally liable.  The claim is simply that Tarsos Anstalt is the alter ego of Mr. Goodman. However, even if this were so,  the question arises as to whether the MMP Group can be considered the alter ego of Mr. Goodman.
8.2	Both parties referred to Allied Irish Coal Supplies Limited -v- Powell Duffryn International Fuels Limited [1998] 2 IR 519.
	In that case Murphy J. upheld the decision of Laffoy J. in the High Court as follows:-
	“There are some decisions, particularly in other jurisdictions, and much academic writing which would seem to advocate a restriction of the principles so clearly established by the House of Lords in Salomon and perhaps indicate a wish to resuscitate the views so trenchantly expressed by Lopes L.J. (in Broderip -v- Salomon (1895) 2 CH 323 at 340 - that the company was a mere nominis umbra) however, I am in complete agreement with the comments made the learned trial Judge in the present case where she said at page 528;
		While not expressing any general view of the scope on the principle on which the Plaintiff relies, in my view, it cannot be utilised to render the assets of a parent company available to meet the liabilities of the trading subsidiary, to a party with whom it has traded.  The proposition advanced by the Plaintiff seems to me to be so fundamentally at variance with the principle of separate corporate legal personality laid down in Salomon -v- Salomon and Company (1897) AC 22, and the concept of limited liability, that it is wholly unstateable.
	 Counsel for the Defendants sought an argument in this case, and in the High Court to distinguish the facts of the present case and those in Power Supermarkets -v- Crumlin Investments Limited (unreported, High Court, Costello J., 22nd June, 1981).  There is little difficulty in making such distinction.  In that case Costello J. drew attention to the fact that apart from its initiation, the Company in respect of which it was proposed that the corporate veil should be pierced, no meeting of the board had ever been held.  There had been no meeting of shareholders.  The supermarket, the subject matter of the case, had been purchased without any approval of any meeting of the board of directors and no meeting thereof was ever held to make decisions on trading or commercial matters.”  

9	Applicant’s Submissions
9.1	Mr. Dempsey SC, for the Applicants, had adopted the arguments made in Mr. Phelan’s motion to strike out the pleadings of the companies against him and Master Cut Foods Limited (1988 No. 10882P).
	The submission that the companies had no active trading for some considerable time was evidenced by the fact that the companies were, in fact, struck off and were only reinstated shortly before the onset of the trial.  It is clear, Counsel submits, that the companies themselves had and have nothing but the most nominal existence and the only purpose to their continued existence is to maintain proceedings which can only be intended to benefit Mr. Goodman personally.  There can be no question of the companies having any other purpose having regard to the disinterest shown to their continued survival or, indeed,  compliance with the companies acts for some considerable period of time.  If the Plaintiffs were successful in obtaining an Order against him, he submits that it would be invidious that Mr. Goodman, who, he further submits, is not merely a wrong doer, but a wrong doer who obtained the control of the companies by a sustained process of deception, should be permitted to benefit.  In relation to the submissions with regard to the reinstatement of the companies, the Companies Act is clear.  The companies, after reinstatement, are entitled to all the benefits and bear all the liabilities that they had at the time of their being struck off the registrar.  
9.2	 It was submitted that the motions to strike out must be read with the judgment of the 11th September, 2001. In accordance with the principles set out in Ashmore -v- Corporation of Lloyds (1992) 2 All ER 486 at 488, per Lord Templeman, in relation to trials of preliminarty points of law the Notices of indemnity and contribution should be struck out.
	“An exception that the trial would proceed to a conclusion upon the evidence to be adduced is not a legitimate expectation.  The only legitimate expectation of any Plaintiff is to receive justice.  Justice can only be achieved by assisting the Judge and accepting his rulings.”

	The Judgment of this Court to which reference has been made establishes, Mr. Dempsey submits, that there can be no question of Mr. El Taher giving any of the representations or warranties alleged in the contribution notices to Mr. Goodman personally.  The agreement of the 15th April, 1987 between Zakaria El Taher and Tarsos Anstalt, that Mr. El Taher would sell and Tarsos would purchase 80% of the proprietary interest in Master Meat Anstalt with an option for the remaining 20% for consideration of US $9.75 million contained representations and warranties to Tarsos Anstalt and not to Mr. Goodman. These were, inter alia, that the consolidated balance sheets of the companies in draft form showed a true and fair view of the companies as of the 31st December, 1986 and that the net assets of the companies as at that date and as at the date of the agreement were not less than the net assets shown therein (or at most a variation of 10% less).  There was a similar provision with regard to draft profit and loss accounts together with the representation that all trading from that date had been in the normal and usual course of business of the companies with no material adverse change.  Moreover, it was represented that Mr. El Taher had disclosed to Tarsos all matters in relation to the companies that should or ought to be disclosed in good faith to a purchaser for full value of the shares which he is aware.
9.3.1	That agreement had been subject to the jurisdiction of the English Courts pursuant to which Mr. El Taher commenced proceedings against Mr. Goodman in which the Affidavit of Mr. El Taher dated the 9th September, 2000, referred to above, had been filed.
	Counsel further submitted that Mr. El Taher held the shares for Mr. Goodman and was entitled to an indemnity .  
9.3.2	Mr. Dempsey submitted that either the sale to Tarsos on the 15th April, 1987 was void because of illegality or alternatively that Mr. Goodman did not acquire any “equitable interest” because of the prior lien under the articles of association in respect of monies owed by Mr. El Taher.  Moreover, Clause 12(i) of the Joint Venture Agreement provided that on breach any attempt to deal with or dispose of any shares will be deemed to be a service of a transfer notice in respect of all the shares registered in the name of such member.  Indeed, it is submitted, that Mr. Goodman can never be deemed to be “unconditionally” registered as a holder of a share in the Master Meat Group of companies as the consideration was made to the wrong person.  
10.4	The Applicant further submitted that the Court should follow Tinsley -v- Milligan, (1993) 3 WLR 126.  The argument is made on the basis of the dissenting judgment of Lord Goff that:-
	“If A puts property in the name of B intending to conceal his (A’s) interest in the property for a fraudulent or illegal purpose, neither law or equity will allow A to recover the property, and equity will not assist in asserting an equitable interest in it.  This principle applies whether the transaction takes the form of a transfer of property by A to B, or the purchase by A of property in the name of B.”

11.	Respondents' Submissions
	Mr. Donal O’Donnell SC submitted that the application is legally flawed and factually misconceived.  The inherent jurisdiction of the court to strike may only be exercised in circumstances of undisputed facts, or otherwise where the court is certain but that no matter what might arise or happen in the course of the proceedings, the claim will be resolved in a matter fatal to the claimant’s contentions.  [Barry .v. Buckley [1981] IR 306, 308, per Costello J.;  Cavern Systems Dublin Ltd. .v. Clontarf Resident Association [1984] ILRM 24, 27 (per Costello J.) and Sun Fat Chan .v. Osseous Ltd. [1992] 1 IR 425, 428 (per McCarthy J.)]
	Mr. O’Donnell SC referred to the emphasis put on the principles in the above cases by the Supreme Court in Jodifern .v. Fitzgerald [2000] 3 IR 321, 333 and 334, per Barron J. and Murray J.   In Supermacs Ireland .v. Katesan Katesan (Naas) Limited [2000] 4 IR 273 the decision in Sun Fat Chan and Lac Minerals .v. Chevron Corporation [1995] ILRM 161 were endorsed.
	In the Respondents’ submission there are not undisputed facts which would reach the threshold necessary to strike out the Respondent’s claim.  Moreover, the Court is being asked to decide that the agreement of the 15th April 1987 was dishonest, illegal and fraudulent such as to preclude the making of claims contained in the notices.  None of these matters have been determined nor can be determined in an application of this nature.
11.3	No indemnity has been given by the Master Trade Defendants to the Tahers’.  No indemnity has been given in relation to the liability in respect of which  contribution is sought.  Moreover, Counsel submits that there is no entitlement as to any indemnity.
11.4	Notice seeking contribution from a joint wrongdoer will not be struck out on the basis of “ex turpi causa non oritur actio”.  Furthermore, no part of either notice of indemnity and contribution depends on the validity of the agreement of the 15th April 1987.  The notice does not depend on the validity of the transfer of legal or equitable title to the shares in the Master Meats Group.
11.5	The Respondents says that the Applicants repeated assertion that the court is entitled to pierce the corporate veil and declare the companies the alter ego of Mr. Goodman.  The Respondent submits that the Court does not have any factual basis upon which such a declaration could be made nor is there any authority urged by the Applicants on analogous facts.  The Supreme Court has affirmed the exceptional nature of the jurisdiction to lift the corporate veil in Allied Irish Coal Suppliers .v. Powell Duffryn [1998] 2 IR 519 and Adams .v. Cape Industrie (1990) BCLC 479 at 512/513.

12	Decision of the Court
12.1	The Supreme Court has clearly stated that while the facility to strike out a case in limine on the grounds that it cannot possibly succeed is one from which the Court should not sherk, it is equally clear that it is a remedy which ought to be applied sparingly and in general ought to be applied only in circumstances where there are undisputed facts.  The Court can not determine on the basis of Affidavit and/or documentary evidence whether there has been illegality of the nature contended for.  In respect of the MMP Group companies there is no question of them having engaged in any breach of contract, illegality, deceit, trickery or fraud nor having relied upon the agreement of the 15th April, 1987.   Moreover, the companies did not give any indemnity to either Mr. Taher.  
	Given the comprehensive nature of the notices themselves, they cannot be said to be founded on the 1987 agreement.  They arise rather from the claim by Mr. Phelan for damages for deceit, inducement and breach of contract and conspiracy.  It has already been held that the breach was a breach by Mr. El Taher himself.  In relation to the second set of notices of indemnity and contribution served by the companies,  it cannot be said that they are in any way affected by the 1987 agreements.  Their claims are independent.  They are not affected by disputes relating to the identity of their members.
12.2	It is clear that Mr. Zakaria El Taher is relying on a interpretation of the Judgment of this Court.  Leaving aside the issue of whether such an interpretation is proper to an Affidavit which should be confined to averments of facts within the deponents own knowledge, such conclusions have not been made by this Court.  To say that any agreement which  is based on concealment and secrecy must necessarily be dishonest, unlawful and/or fraudulent clearly requires further evidence.  To assume that there is any finding of deceit and trickery in the judgment requires proof of intention which has not been found.
	In a similar way the admission by Mr. Goodman of having induced, in legal terms, the agreement does not, by that admission alone, render such inducement dishonest, unlawful and/or fraudulent.
	Having found that there was a breach of the articles of association does not necessarily establish a voidness of any transaction.  Moreover the breach of the agreement of the 15th April, 1987 was a breach by Mr. Zakaria El Taher, as found in the Judgment of the 11th September, 2001.
	It may very well be that the deadlock provision of the Joint Venture Agreement did not survive the ceasing of the Joint Venture Agreement itself.  It does not follow that the exercise by parties of the provisions is necessarily illegal or fraudulent or void.
12.3	The admission of Mr. Goodman was that he at all material times was the owner of Tarsos Anstalt and that through Tarsos Anstalt he acquired the shareholding in Master Meat Anstalt on or about the 15th April 1987.  It does not necessarily follow that that gave him a controlling as distinct from a half interest.  The documentary evidence shows a deadlock between Mr. Phelan, who had day to day management of the MMP Group, and the interests held by Mr. Goodman in the name of Zakaria El Taher between the 15th April, 1987 and the 16th September, 1998.  Further evidence is required to arrive at a finding of a controlling interest by Mr Goodman.
12.4	The Court accepts that Mr. Zakaria El Taher did not have any beneficial rights in the MMP Group from the 15th April, 1987 onwards.  Indeed, as already found by the Court, Mr. El Taher held nothing after that date.  To submit that he was simply acting on instructions of Mr. Goodman while he was, for some material time, a director of the companies is not a finding of the Court.
12.5	The Applicant further submitted that after the 15th April, 1987 Mr. Zakaria El Taher held the shares for Mr. Goodman as transferee until registration then the former he is entitled to an indemnity.   Case law upholding that indemnity in relation to calls or liability which may arise in respect of the shares subsequent to the transfer, (emphasis added: see cases as cited in Palmers Company Law, 24th edition, 40-03 footnote 24) would appear to go no further.  In any event they do not encompass a continuing obligation on the part of the transferor nor representations made by the transferor in respect of the balance sheet or profit and loss accounts.
12.6	Mr. Dempsey submitted that Mr. Goodman is not a party to those representations and cannot properly serve a Notice of indemnity and contribution in relation thereto.  If the contention be upheld that the corporate veil should be lifted then, of course, Mr. Goodman would be entitled to serve such notice.  
	Even allowing Mr. Dempsey’s submission in this regard and his submission that Mr. Goodman must rely on the very agreement of the 15th April, 1987 which the Court has held to have been breached by Mr. El Taher and which Mr. Dempsey submits is illegal, fraudulent and void, such is not incontrovertible evidence as to have the notice struck out.  The continuing obligation requirement of paragraph 11 of that agreement would, in the event of it not been found illegal, impose an obligation on Mr. El Taher after the completion of the agreement.
12.7.1	The first ground relied upon by Mr. El Taher in seeking to strike out the Notices of indemnity and contribution is what he terms the fraud exception arising out of the maxim: ex turpi causa non oritur actio. 
	The Court considers, as it held in the judgment of 11th September, 2001, that this issue is not available for consideration.  It must await oral evidence.  Mr. Zakaria El Taher avers that he acted reluctantly and under duress and threat of losing the indemnity given to him. Moreover, Mr. Zakaria El Taher refers to betrayal, crisis and manipulation which at best at this stage of the hearing are allegations and in respect of which no concluded facts have been found.  There is no finding that the subsequent purchase of Mr. Phelan’s shares by Mr. Goodman in September, 1988 is tainted with illegality, dishonesty or fraud.  These matters are not, at this time, ready for adjudication.
12.7.2	The second ground relied upon by Mr. El Taher is what he terms the “trespasser point”.  Mr. Goodman has no locus standi in relation to the MMP Group of companies to issue the said Notices.  The second Notice was issued by the company.  No point has been raised regarding its directors nor regarding the giving of instructions to serve such Notice.   Without such evidence the Court can not determine this point in favour of the Applicant.
	Mr. El Taher’s amended defence (paragraphs 34, 35 and 37) pleads that the agreement dated the 15th April, 1987 is void.  The Court is asked to make an order for  restitution and/or recision of the agreement of that date in exercise of a Courts inherent jurisdiction.  If this order were made Mr. Goodman would have no standing.
	However, this relief is not pleaded in the actions nor is it prayed for in the Notices of Motion before this Court.  It is ultra petita and, accordingly, can not be considered.
12.7.3	The third ground is that neither Mr. Goodman nor the MMP Group have any cause of action either to sue or to issue the said Notices complained of on the basis of illegal and/or deceitful and/or fraudulent agreements or based on Mr. El Taher’s failure to comply with instructions or the terms of the Joint Venture Agreement onwards.
	The Court has made no finding with regards to illegal, deceitful or fraudulent agreements.  It has held that there was a breach of the agreement by Mr. Zakaria El Taher and that, according to the terms of the Joint Venture Agreement in 1986, that agreement ceased.  There is, accordingly, no adequate grounds to strike out the Notices for this reason.
12.7.4	The fourth ground is that of agency.  Mr. El Taher says that from the agreement of April, 1987 to that of September, 1988 he acted as an agent of Mr. Goodman with his express or implied authority and that, accordingly, he is free of responsibility and law of the consequences of such actions.  The Court cannot accept that a party in breach of a Joint Venture Agreement and continuing on as a director for some material time during the period mentioned, can by reason of an application in limine strike out proceedings taken by way of Notice of contribution and indemnity.  It is clear, in any event, that he is a Defendant in both actions taken by Mr. Phelan.
12.7.5	The fifth ground is that the indemnities given to each of the El Tahers constitute an estoppel to the counterclaim and to the Notices for indemnity and contributions.
	There is an arguable case that each of the indemnities are limited in their scope.  While the Court does not have to determine this discrete issue at this stage, once there is an arguable ground it is not appropriate to consider this ground as adequate to sustain a strike out of any pleadings.
	Mr. El Taher submits that his son did not breach the confidentiality clause contained in the second part of the Deed of Indemnity and that it is not proper for Mr. Goodman to penalise his son by refusing to honour his (Mr. Goodmans) liabilities under the Deed of Indemnity for not participating in what Mr. Zakaria El Taher calls the “web of deceit of Mr. Goodman”.  
	I have already held that the finding of deceit depends of the proof of intention; that there is no such finding in the Judgment of the 11th September, 2001 and, indeed, that there is no finding of fraud in that Judgment.  Any such consideration must await oral evidence.  
12.7.6	Finally, Mr. El Taher grounds his application by reference to the exercise to the deadlock provision and the involvement of Matheson Ormsby and Prentice and Mr. Lawrence Crowley.
	He refers to his letter of the 8th September, 1988 when he wrote to his Solicitors, Matheson Ormsby and Prentice, stating that the deadlock provisions can only apply between Mr. Phelan and himself personally and that the counteroffer in the deadlock situation could only be made by him and no-one was entitled to make such a counteroffer without obtaining his prior written approval. In this regard Mr. El Taher says that he does not wish to be used as a scape goat in the trial.  He says that Mr. Crowley misrepresented his involvement to Mr. Phelan and played a major part in the exercise of the deadlock provision. He referred, without exhibiting same, to memoranda and communications that Zakaria El Taher was still representing 50% shareholding in 1988.  No point was taken by Mr. O’Donnell SC in respect of these references other than to emphasise the necessity of exhibiting relevant documents appropriately.
	This submission relates to the involvement of parties other than those in this application.  The Court would require findings of fact not presently available in relation to Mr. Goodman and to the MMP Group of companies and to the above named persons in this regard.
12.8	If, as the Applicants submit, Mr. Goodman can never be deemed to be unconditionally registered as a shareholder of the companies then the payment was wrongfully made to Mr. El Taher and not to Master Meat Anstalt, Mr. El Taher can hardly sustain such an objection when he has been wrongfully paid.  One would expect the equitable interest to follow the consideration and that the estate would lie where it falls.  The Court does not now have to decide this point which further adds to the lack of incontrovertible evidence required to order a strike out in limine.
12.9	The question of illegality which is, as yet, merely an allegation, has to be inferred from the intention of the transferee.  See Bowmakers Limited -v- Barnett Instruments Limited (1945) KB 65.  Once it does come to the attention of a Court of equity that a claimant has not come to the Court with clean hands, the Court can refuse to assist such claimant, even though the claimant can prima facie establish his claim without recourse to the fraudulent or illegal purpose.  This issue requires a finding of an intention to conceal which requires further evidence. Even allowing that Lord Goff’s dissenting judgment in Tinsley -v- Mulligan above the element of such an intention to conceal is essential.
	The Court cannot say, at this juncture, that the claims, made by way of Notice of indemnity and contribution, should be struck out.  There is room for considering what existing evidence should be accepted and how it should be interpreted.  More importantly further evidence is necessary to prove intention and to resolve conflicts.
	The Affidavits, as analysed reflect an incomplete picture of complex claim of breach of contract, conspiracy and allegations of fraud.  The documentary evidence by way of Affidavit has not been subject to cross or to re-examination.
12.10	This application to strike out the companies’ claims is, accordingly, refused.  The application for directions, though not moved, would seem to be inappropriate.