Mergers
Explanatory Memorandum
Chapter 3
Mergers
Section 461 gives definitions for a number of terms used throughout this Chapter. Some of these definitions derive from Regulation 1 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). It was decided to base this Chapter on those Regulations to provide a mechanism under Irish law whereby two Irish companies can merge so that the assets and liabilities (and corporate identity) of one are transferred by operation of law to the other, before the former is dissolved.
Section 462 specifies the circumstances in which the provisions of this Chapter apply – namely where none of the merging companies is a PLC and where at least one of the merging companies is a private company limited by shares (LTD).
Section 463 describes the type of mergers to which this Chapter applies, which are “merger by acquisition”, “merger by absorption” and “merger by formation of a new company”. These descriptions are taken from Regulation 1 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). It also provides that where a company is being wound up, it may become a party to a merger provided that the distribution of its assets to its shareholders has not begun at the date of the common draft terms of merger.
Section 464 is a new provision and specifies how a merger is to be put into effect. It must be effected either in accordance with the Summary Approval Procedure or, in the absence of the Summary Approval Procedure being employed, the relevant provisions of this Chapter. This means that a merger may, in certain circumstances, be effected without the need for a High Court order. It is also possible to proceed under Chapter 1 of this Part (reorganisation by way of scheme of arrangement) as an alternative.
Section 465 makes it clear however that Chapter 1 and Chapter 3 of this Part are mutually exclusive; that is to say that a merger can be effected by proceeding under either of those Chapters but not by proceeding partially under one of those Chapters and partially under the other.
Section 466 lays down what must be included in the document to be known as the common draft terms of merger. This derives from Regulation 5 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). The common draft terms of merger must be drawn up by the directors of the merging companies and those terms must be approved in writing. It is not permitted for the common draft terms of merger to provide for any shares in the successor company to be exchanged for shares in a transferor company held either by the successor company (or its nominee on its behalf) or by the transferor company (or its nominee on its behalf).
Section 467 provides for the director’s explanatory report and is drawn from Regulation 6 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). Except in cases of merger by absorption, the directors must prepare a separate written report giving particulars of the common draft terms of merger and the legal and economic grounds for and implications of those draft terms. Subsection (4) has been inserted to provide that the provisions of this section will not apply where certain conditions are satisfied. Those conditions are that, where there is a requirement that a holder of securities of the company give their consent to a vote by holders of shares of any of the merging companies in order for that vote to take effect, such holders of securities together with all of the holders of shares conferring the right to vote at general meetings of each of the merging companies must have agreed that this section will not apply. Alternatively, where there is no requirement that a holder of securities of the company give their consent to a vote by holders of shares of any of the merging companies in order for that vote to take effect, it is sufficient that all of the holders of shares conferring the right to vote at general meetings of each of the merging companies have agreed that this section will not apply.
Section 468 provides that one or more experts must be appointed to examine the common draft terms of merger and to make a report thereon to the shareholders of the merging companies. Such a report is not needed where the merger is one by absorption nor where it is a merger where the successor company holds 90 per cent or more (but not all) of the shares carrying the right to vote at a general meeting of the transferor company or at general meetings of each of the transferor companies. Alternatively, the need for an expert’s report may be obviated by every member of every merging company involved agreeing that such a report is not necessary.
An expert must be a “qualified person”, which term is described under subsection (6) as a statutory auditor who has not been an officer or employee of any of the merging companies in the previous 12 months or is not related (within the meaning of this section) to an officer of any of the merging companies.
Subsection (7) stipulates when the experts report must be delivered and what information it must include.
Subsection (8) gives powers to the expert to obtain information and explanations from the merging companies and their officers and to make enquiries necessary for the purposes of making his or her report. Any company and any officer of it who fails to give the required information and explanations shall be guilty of a category 2 offence under subsection (9). Similarly, the provision of false or misleading information or explanations will result in a category 2 offence.
Subsections (11) and (12) deal with the situation where a person appointed as an expert ceases to be a qualified person.
This section 468 is derived from Regulation 7 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008).
Section 469 is new and provides that, in circumstances where the Summary Approval Procedure is not being used to effect the merger (and therefore where a general meeting is not being held) and where the latest statutory financial statements of any of the merging companies relate to a financial year ended more than 6 months before the date of the common draft terms of merger, the company must prepare a merger financial statement if it is availing itself of the exemption from the requirement to hold a general meeting under section 473(6). Subsections (2) to (5) provide for the format and content of the merger financial statement. Subsection (6) has been inserted to provide that the provisions of this section will not apply where certain conditions are satisfied. Those conditions are that, where there is a requirement that a holder of securities of the company give their consent to a vote by holders of shares of any of the merging companies in order for that vote to take effect, such holders of securities together with all of the holders of shares conferring the right to vote at general meetings of each of the merging companies must have agreed that this section will not apply. Alternatively, where there is no requirement that a holder of securities of the company give their consent to a vote by holders of shares of any of the merging companies in order for that vote to take effect, it is sufficient that all of the holders of shares conferring the right to vote at general meetings of each of the merging companies have agreed that this section will not apply.
Section 470 makes provision for the registration and publication of documents in the case of a merger. It is taken from Regulation 8 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). The common draft terms of merger, together with a notice in the prescribed form must be delivered to the Registrar. Notice of the delivery of the common draft terms of merger must be published by the Registrar in the CRO Gazette and by each of the merging companies in one national newspaper. The delivery to the Registrar and the publishing of the notice must be carried out at least 30 days in advance of the passing of the resolution to effect the merger. Compliance with this section is not required in a case where the Summary Approval Procedure is employed to effect the merger. Subsection (5) disapplies the provisions of this section in circumstances where the merging company publishes, free of charge on its website a copy of the common draft terms of merger. Such publication must be for a continuous period of 2 months and must begin at least 30 days before the date of the general meeting to consider the common draft terms of merger. In addition, the company must publish notice of the publication on its website of the common draft terms of merger in the CRO Gazette and in one daily newspaper. Subsection (6) makes provision for circumstances where access to the company’s website is disrupted and extends the required period of publication in such circumstances.
Section 471 provides for the inspection of the documents relating to the merger. This section provides for the inspection of specified documents free of charge by any member of the merging company for a period of 30 days before either the date of the passing of the unanimous resolution where the Summary Approval Procedure is employed or, where it is not, the date of the passing of the resolution on the common draft terms of merger by each merging company in accordance with section 473. Provision is made in subsection (5) for exemption from the obligations under this section where the merger documents specified in subsection (1) are published on the company’s website. There is no obligation to make documents available for physical inspection where documents are available on the website of the company free of charge as this could lead to some companies declining to use the internet as an option to publish documents as the documents would still have to be made available for physical inspection. This section is taken from regulation 9 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008).
Section 472 is new and disapplies the subsequent provisions of this Chapter where the Summary Approval Procedure is employed to effect the merger. Provision is made in subsection (3) for section 479 (preservation of rights of holders of securities), section 483 (civil liability of directors and employees) and section 484 (criminal liability for untrue statements in merger documents) to apply where the Summary Approval Procedure is employed.
Section 473 describes the proceedings in relation to general meetings of the merging companies. The provisions derive from Regulations 10 and 11 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). It provides that a general meeting of merging companies must be held to approve common draft terms within 30 days of publication of notice. Members of a successor company who hold not less than 5 per cent of the paid up capital of the company which carries the right to vote at general meetings of the company (excluding treasury shares) may require the convening of a general meeting to consider the common draft terms of merger.
Section 474 is new and allows for the provision by email to the shareholders (where they have so consented) of the copies of the merger documents. The notice convening the general meeting to consider the draft terms of merger must contain a statement that the documents are being supplied in this manner. Shareholders will not be permitted to make a request for copies of the merger documents (under section 473(3)) where those documents were available to download and print, free of charge, from the company’s website.
Section 475 is new and clarifies the situation regarding meetings of classes of shareholders of the merging companies. It is stated that the provisions of Chapter 4 of Part 3 (excluding sections 88(9) and 89) of the Act on the variation of rights attached to any class of shares in a company are to apply where the share capital of any of the merging companies is divided into shares of different classes.
Section 476 provides that a minority shareholder in a transferor company may request the successor company to acquire his or her shares in the transferor company for cash. Such a request must be in writing and must not be later than 15 days after the “relevant date”, such term being defined in subsection (4). Subsection (2) provides that the price for the shares will be determined in accordance with the share exchange ratio set out in the draft common terms of merger and that any shares purchased by the successor company will be treated as treasury shares. This section is drawn from Regulation 12 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008).
Section 477 derives in part from Regulation 14 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008) and states that all the merging companies must make a joint application to the court for an order confirming the merger. This application must be accompanied by a statement of the size of the shareholding of any shareholder who has requested the purchase of his or her shares and of the measures which the successor company proposes to take to comply with the shareholders request. The requirement under this section to make an application to the court obviously does not apply where the Summary Approval Procedure is being employed by the merging companies to effect the merger.
Section 478 provides for the protection of creditors of any of the merging companies. Such creditors shall be entitled to be heard in relation to the confirmation by the court of the merger under
section 480. This is taken from Regulation 15 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008).
Section 479 operates to preserve the rights of holders of securities, other than shares, in any of the companies being acquired to which special rights are attached. Such holders of securities must be given rights in the successor company at least equivalent to those they possessed in the company being acquired. Subsection (2) disapplies this requirement in certain circumstances.
Section 480 deals with the confirmation order to be issued by the court pursuant to an application under section 477 of the Act.
Subsection (2) is new but is drawn in part from Regulation 14 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). It states that the court may make an order confirming the merger where it is satisfied that the relevant requirements of the Chapter have been complied with; that proper provision has been made for any objecting creditors and minority shareholders; that the rights of holders of securities other than shares are safeguarded; and that the provisions of Chapter 4 of Part 3 in relation to variation of rights attached to a class of shares have been complied with, where applicable.
Subsection (3) derives from Regulation 19 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008). It lays down the effects that will flow from the order of the court confirming the merger. Subsection (5) also derives from Regulation 19 and provides that the successor company must comply with registration requirements and other formalities required by law and as directed by the court for the transfer of the assets and liabilities of the transferor company to be effective in relation to other persons.
Subsections (4), (6), (7) and (8) are new. They cater for the consequences of a merger on leasehold property (legally classified as ‘chattels real’) or immovable property. The section contains clear language that should improve certainty with respect to the property transactions and thus reduce paperwork and costs to business associated with the merger.
If the merger is to take effect at a particular time on the date appointed under subsection (2), and this time is not suitable to the parties (having regard to their need to co-ordinate various transactions), then the court, under subsection (9), can specify a different time for the merger to take effect that would be more suitable to the parties. This subsection (9) has been newly inserted.
Section 481 states that, in giving an order confirming a merger under this Chapter, the court may in that order permit the giving of financial assistance (section 82) and/or a reduction in company capital (section 84) where it sees fit for the purpose of enabling the merger to properly have effect.
Section 482 provides that orders confirming a merger must be sent to the Registrar and the Registrar must subsequently register that order and have it published in the CRO Gazette. This derives from Regulation 17 of the EC (Cross-Border Mergers) Regulations 2008 (S.I. No. 157 of 2008).
Section 483 allows for the civil liability of directors and experts in relation to the preparation or implementation of a merger. Any shareholder of a merging company who has suffered loss or damage by reason of misconduct of a director or expert or by reason of the inclusion of any untrue statement in the merger documentation shall have a cause of action and shall be entitled to have such loss or damage made good to him or her. Subsection (3) and (4) provide for circumstances where
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directors and experts can be absolved from liability under this section. This provision derives from Regulation 22 of the EC (Mergers and Divisions) Regulations 1987 (S.I. No. 137 of 1987).
Section 484 provides for criminal liability for untrue statements in merger documents – whether of the directors, the expert or any person who authorised the issue of a merger document containing untrue statements. A category 2 offence is applied and subsection (3) provides for a defence to any proceedings against a person under this section. This section is adapted from Regulation 23 of the EC (Mergers and Divisions) Regulations 1987 (S.I. No. 137 of 1987
The text in italics on this page is sourced from the DJEIand is re-published under the Licence for Re-Use of Public Sector Information made pursuant to Directive 2003/98/EC Directive 2013/37/EU of the European Parliament and of the Council on the re-use of public sector information transposed into Irish law by the European Communities (Re-Use of Public Sector Information) Regulations 2005 to 2015.
Cases
Kelly v Governor and Company of the Bank of Ireland & Boucher
[2018] IECA 288 (15 August 2018)
JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 13TH DAY OF AUGUST 2018
1. In each of the above proceedings the defendants brought a motion in the High Court seeking an order pursuant to Ord. 19, r. 28 of the Rules of the Superior Courts and/or the inherent jurisdiction of the High Court striking out the entirety of the plaintiff’s claim on the basis that it failed to disclose a reasonable cause of action and/or is bound to fail and/or is frivolous and/or is vexatious and/or is an abuse of process. In each case an order (as subsequently amended under the ‘slip rule’) was made to strike out the proceedings pursuant to Ord.19, r.28 of the Rules, and the inherent jurisdiction of the Court.
2. The appellant represented himself both in the High Court and in this Court on appeal. While the appellant contends that the trial judge erred ordering that each proceeding be struck out, I am satisfied that that such an order was correctly made in each case, and that these appeals must fail for reasons which I shall explain.
3. Each set of proceedings has a common factual background. I should add that in the first proceeding the second named defendant is the Chief Executive of the bank at all relevant times. In the second proceeding the second named defendant is the receiver appointed by the bank over certain property later referred to.
4. The plaintiff had operated his professional practice through a limited liability company named Vincent Kelly Limited until that company went into liquidation.
5. The plaintiff established a pension scheme through Vincent Kelly Limited, by way of trust deed dated the 1st April 2007, and in respect of which he is named as the sole beneficiary. This is a self-administered pension scheme. There were two trustees appointed to act, namely the plaintiff himself, and Private Company trustees (Ireland) Limited as Pensioner Trustee (“Private Company”).
6. There is no dispute that the plaintiff and Private Company “as trustees” of the Scheme applied for and accepted a loan from Bank of Ireland in the sum of €800,000 whose purpose was to assist with the purchase of an investment property to be owned by the Retirement Scheme. Repayments were to be €9,718.54 payable monthly. In addition to this borrowing the purchase was funded by an amount of €350,000 provided by Vincent Kelly Limited. Again, that is not disputed by the plaintiff. The property was purchased in due course in the name of the Retirement Scheme as evidenced by deed of purchase dated the 1st October 2007. By deed of mortgage the property was mortgaged to the bank as security for the loan. Repayments were made over the course of some four years following this purchase but ceased in January 2012 resulting in en event of default under the terms of the mortgage. The bank appointed a receiver over the property in these circumstances as it was entitled to do under the terms of the mortgage. The property was occupied by tenants at this time, but following the service by the receiver of notices to quit upon the tenants, the received obtained vacant possession of the property in October 2013.
7. That is an uncontroversial background to the two proceedings commenced by the plaintiff.
8. While the plaintiff pleaded in his statements of claim that he entered into the loan agreement with the bank in August 2007, he has accepted that it was in his capacity as trustee of the Retirement Scheme. That much cannot be gainsaid given that it specifically so stated in the facility letter that issued and that he signed “as trustee”. It was not signed in his personal capacity.
9. However, the plaintiff nevertheless maintains strongly that he personally was advised by the bank and specifically by one of the bank’s senior business managers, Peter Walley (his brother in law), who was also his relationship manager in the bank, in relation to setting up this retirement pension scheme, the purchase of the particular property for the purposes of the scheme, and also the financing of the transaction. He says that he was specifically advised by Mr Walley that he should use his pension fund to finance the purchase, and that it was a sound investment.
10. In his statements of claim the plaintiff pleads that while advising him positively in relation to this investment for his pension fund, Mr Walley at the same time, and unknown to him, was disposing of his own shareholding in Bank of Ireland, and that given the knowledge held by the bank in relation to the state of the property market, and its own stability, the bank breached its duty of care to the plaintiff by promoting the setting up of this pension scheme and the purchase of the property. The plaintiff maintains that the bank was aware that he would be relying on the advice given, and that he was in fact one of many people who was actually targeted by the bank at the time in order to build up the bank’s loan book to the benefit of the bank.
11. The plaintiff maintains that the advice given to him in relation to these matters was negligent advice, and deceitful, being knowingly made without belief as to its truth or reckless as to whether it was true or not. This last claim is the basis for a submission that the bank was guilty of fraud and deception for the purposes of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
12. The plaintiff claims that it was on foot of this negligent and reckless advice received, upon which he was entitled to rely, and did rely to the knowledge of the bank, that he invested the said sum of €350,000 in the pension scheme, and borrowed the balance of €800,000 in order to complete the said property purchase.
13. These allegations of negligence and breach of duty are set out at greater length in the statements of claim. In addition he particularises claims ofmala fidesand improper purposes against the bank, and particularises his losses.
14. In addition to making those claims, the plaintiff seeks many other reliefs including the recovery of damages, the removal of the receiver, an injunction to restrain the sale of the property by the receiver, the setting aside/rescission of the loan agreement and the mortgage.
15. In hisex temporejudgment delivered on the 7th October 2016 the trial judge first of all set out a brief factual background. Thereafter, he stated that there was no basis for the plaintiff to allege that Mr Boucher, as Chief Executive of the bank, had a duty to the plaintiff either “in contract or in law”, and neither was there a basis for alleging that the plaintiff in his own right was owed some duty by the receiver who was appointed by the bank over property belonging to the Scheme. I am in full agreement with those conclusions by the trial judge, and need say no more about them.
16. The trial judge went on to conclude that the plaintiff had no authority or status to mount these proceedings in his personal capacity. He noted that he had not obtained the consent of the other trustee, Private Company, and described the plaintiff as going “on a frolic of his own” in relation to claims for losses or other rights of action which might be open to the Scheme itself as opposed to the plaintiff personally.
17. The trial judge then proceeded to state that even if he had overlooked some relevant matter concerning the plaintiff’s status to pursue these claims, there were other “fatal flaws which the plaintiff cannot overcome”. In that regard he stated:
“1. There is no causal link at law between what might be described as the macro economic knowledge of the bank to the lending and purchase of the Property. Cases before the Court and appeals from the Court have given rise to many judgements which have rejected what has been termed “reckless lending” or advice based claims to avoid the repayments of loans. Some applications by the Bank against the plaintiff may have been sent by consent or otherwise to plenary hearing based on a defence or counterclaim which includedinter aliaadvice based arguments sought to be maintained by the plaintiff. Exercising the inherent jurisdiction of the Court and having regard to the undisputed evidence of the loan agreement, mortgage and deed of appointment of the receiver adduced by way of affidavit evidence, the Court find that there is no prospect of the plaintiff establishing the necessary causal link of his alleged loss to any cause of action against the bank. In other words, maintaining these sets of proceedings would be futile.
2. Birmingham J’s judgment inKearney v. KBC Bank (Ireland) Ltd[2014] IEHC 260 [which] mentions the “fanciful” argument (which he described as a mild term) that one can borrow money and take no responsibility because of the source of the funds, is so apt to the claim sought to be advanced by the plaintiff on behalf of the Scheme if he had the standing to pursue that.”
18. Thereafter the trial judge addressed the claim by the plaintiff based on negligent advice to establish the Scheme. He stated:
“20. In returning to the claim by the plaintiff that he received negligent advice which allows him a remedy for establishing the Scheme in the first place, the Court finds he could not establish at this late stage any loss arising from that decision. The plaintiff in his quest and effort to take on the Bank alleges in the 2013 statement of claim that were it not for the Bank’s advice he would not have sought and secured for the Scheme the Property with the loan repayments obligation. Unfortunately for the plaintiff, he overlooked the fact, as highlighted by counsel for the defendants, that the arrangements and facility to purchase were those of the trustees to take responsibility for solely. If they got advice and such advice was negligent, the Scheme is the proper claimant.
21. The Court has some sympathy for the plaintiff as he may not have had the benefit of studying the law of tort and contract. Put simply, the concept and policy of duty of care, the standard of care, causation, remoteness and quantum are all topics which law students and legal practitioners have to grapple with regularly. The plaintiff has not put forward the necessary degree of relationship for establishing his own personal loss. He is in effect, a step or two removed by reason of the structures which he established and probably with advice which he now seeks to impugn.
22. I take this as an example: if “Joe Murphy” [a name I picked at random] incorporates a company, invest money in that company, that company then borrows money to invest further and the investments go under, Joe Murphy has no prospect of suing successfully in his own right for the loss of the investment as the loss has been suffered by the company.”
19. The trial judge went on to state that:
“No matter what way the Court looks at matters, there is no realistic prospect that the plaintiff could recast the 2013 proceedings in a way which would allow him to recover damages. The 2015 proceedings rehash the plaintiff’s claim, but add the receiver appointed by the Bank. The property was owned by the Scheme, mortgage to the Bank and the Receiver was appointed by the Bank.”
20. The trial judge also stated that “there was no prospect of rescission of the loan or for any other reliefs sought either”.
21. I am satisfied that the overall conclusions of the trial judge are correct. Both sets of proceedings have no prospect of succeeding even if the plaintiff’s claim is taken at its height. At its height the plaintiff contends that he personally received advice from his brother-in-law who was a senior manager at the bank and his relationship manager, that he should set up this type of pension scheme, that he should invest funds into it himself and borrow further funds in the amount of €800,000 so that the Scheme could purchase the particular property which was duly purchased. He contends that the bank was negligent in providing that advice given what it already knew about the state of the property market, and the economy of the country and the state of the bank itself, and that it gave that advice putting its own selfish interests ahead of the plaintiff’s. He says also that the bank knew that he would be relying on the advice given by it, and that he was entitled to rely on the advice, and did so. He contends that because that advice has turned out to be wrong, and because it was reckless, deceitful and even fraudulent at the time it was given, he personally has suffered a loss because the repayments due on foot of the loan could not be made after January 2012, and the bank took possession of the property having appointed a receiver. He maintains that this is a loss to him as the sole intended beneficiary of the Scheme, and that in such circumstances the trial judge was wrong to strike out the claims on the basis that it was the company and not he who is at a loss.
22. He says that the relationship between him and the bank was a fiduciary one, given his long-standing relationship with the bank, and that a heightened duty of care was therefore owed to him.
23. In my view the fatal flaw in the plaintiff’s arguments that must lead inexorably to the striking out of these two proceedings as sought by the defendants is that it was the company, Vincent Kelly Limited which invested the amount of €350,000 in the Scheme, to top up the other funds in the scheme which comprised the loan drawn down by the trustees of the Scheme so as to buy the investment property. There is no doubt that the Scheme itself suffered a loss due to the inability to meet the repayments on the loan. Those repayments were being funded by Vincent Kelly Limited. While the amount of €350,000 was undoubtedly put into the Scheme to facilitate the purchase of the property, that sum was contributed not by the plaintiff himself, but by Vincent Kelly Limited.
24. It must follow that any losses that have been incurred have been suffered firstly by the Scheme because it has lost its only asset, and secondly by Vincent Kelly Limited in so far as it contributed the sum of €350,000 and that is also lost.
25. Therefore even if the plaintiff’s case is taken at its height, and the advice that he claims was given was in fact given to him, and even if he relied upon that advice and would not have proceeded with setting up the scheme, and purchasing the property qua one of the trustees of the scheme without that positive advice from the bank, he has suffered no loss personally. He cannot claim as a disappointed beneficiary of the scheme. It is the scheme that has suffered the loss, and could potentially have made a claim against the bank, but in fact the Private Company trustee refused to consent to do so, as it was entitled to do. It cannot be added as a party to the proceedings in such circumstances in order to possibly save them.
26. These proceedings are bound to fail for the reasons I have stated. I am satisfied that the trial judge did not err in making the orders under appeal, and I would dismiss these appeals.