Priority
Cases
Unitherm Heating Systems Ltd -v- liquidator of BHT Group Ltd (In Liquidation)
[2015] IECA 191
Irvine J.
“37. It is beyond doubt that the leading authority on proceeds of sale clauses at the time of the High Court judgment was that of Murphy J. in Carroll, a case in which the Court concluded that the relevant proceeds of sale clause did not create a fiduciary relationship between the buyer and seller but rather confined the seller to a charge over the funds received in respect of the resale of its goods, which required registration.
38. In reaching a contrary conclusion in the present case, the High Court judge distinguished not only the contractual provisions in both cases but also the manner in which the respective parties had conducted their business and, on that basis, found that the relationship of principal and agent existed.
39. For the purposes of considering the distinction drawn by the High Court judge between the two cases, I will briefly summarise the facts in Carroll.
40. In Carroll, the plaintiff, a well-known tobacco company, had supplied goods to the defendants (“Bourkes”) as retailers. Those companies had gone into liquidation. The contract between the parties contained a reservationof title clause which provided that no property in the goods would pass until all sums due to the plaintiff had been discharged. It also gave the defendants the right to resell the goods to a third party on their own account, but not as agents for the plaintiff. Further, the contract included a proceeds of sale clause which required the defendants to “hold all monies received from such sale or other disposition in trust for the company (“Carrolls”) and undertake to maintain an independent account of all sums so received and on request [to] provide all details of such sums and accounts”. No such account was ever established, a fact that the High Court judge concluded was probably known to Carrolls.
41. In the course of the liquidation an issue arose as to the plaintiff’s rights in respect of the proceeds of sale of the goods sold on by the defendants to third parties. The plaintiff argued that these were impressed with a trust in its favour, thus entitling it as a beneficiary standing in a fiduciary relationship with the defendants to trace such proceeds into any other property acquired therewith by the trustees.
42. Murphy J. set out the basic legal principles as follow ([1990] 1 IR 481, 483):-
“The issue in the present case relates to the right of Carrolls in respect of the proceeds of sale of the goods supplied by it. In this context too the basic legal principles are well established. Where a trustee or other person in a fiduciary position disposes of property the proceeds of sale are impressed with a trust which entitles the beneficiary or other person standing in the fiduciary relationship to trace such proceeds into any other property acquired therewith by the trustee … Whether fiduciary obligations are imposed on one party or another depends in part upon the character in which they contract and partly on the nature of the dealings in which they engage. Obviously one would be slow to infer that a vendor and purchaser engaged in an arms length commercial transaction undertook obligations of a fiduciary nature one to the other. On the other hand if one postulates that in any context one person is selling the goods of another the assumption of fiduciary obligations in relationto the sale and in particular the proceeds thereof might well be appropriate. It seems to me that the question must be asked: how does a party come to sell property of which he is not the owner? Is he selling as a trustee in pursuance of a power of sale? Is he selling as the agent of the true owner? Does the sale constitute a wrongful conversion? If any of those questions were answered in the affirmative it seems to me that the law would impose a trust on the proceeds of sale which would confer on the true owner the right to recover those proceeds from the actual seller or, if the proceeds were no longer in the seller’s hands, to trace them into any other property acquired with them.”
43. Murphy J. concluded that it was clear from the terms of the contract that it was envisaged that the defendants would sell on the goods on their own account and not as an agent for Carrolls. Accordingly, he could see no basis upon which to find a fiduciary duty. If such an obligation was to be found, it had to be established by referenceto the actual bargain or in the conditions of sale. He was satisfied that the parties intended that the property would pass to the sub-purchaser who would become the full owner.
44. In coming to that conclusion, Murphy J. considered the following facts to be material. Firstly, the contract anticipated that, on the onward sale, the sub-purchaser would become full owner. Secondly, the clause specifically provided that Bourkes were not selling on as an agent of Carrolls, and this being so, they could not be considered a fiduciary. Thirdly, Bourkes could set their own price for the onward sale of the goods. This meant that, following their sub-sale, they were not necessarily going to be replaced by assets of equal value. Fourthly, while Bourkes were contractually obliged to place the monies received in respect of the onward sale of the goods into a separate account, no such account had been established, a fact which Murphy J. inferred was known to Carrolls. Fifthly, the contract provided for a four week credit period, a facility the purpose of which Murphy J. stated was uncertain if Bourkes were not free to use the proceeds during that period. Murphy J. analysed how that arrangement “properly implemented” would work given that the sums of money credited thereto, assuming that the goods were resold at a marked-up price, would be in excess of the amounts due by Bourkes to Carrolls. That being so, Carrolls, if entitled to have recourse to that account for the purposes of discharging monies due to them, would not be entitled to the entire fund which suggested to Murphy J. that the rights of the seller bore all of the characteristics of a mortgage or charge. The charge so created required registration under s. 99 of the Companies Act 1963 and in the absence of such registration was invalid.
45. In the course of his judgment, Murphy J. stressed the importance of looking beyond the contractual terms themselves and warned that the attachment of labels to the dealings of the parties was not determinative of their legal status. The rights of the parties and the nature of the transaction which they were engaged in had to be determined by reference to a consideration of the document as a whole as well as the obligations and rights which it imposed on the parties. Murphy J. expressed himself satisfied that the true nature of the relationshipbetween the Carrolls and Bourkes was one of debtor/creditor and the fact that the proceeds of sale were dealt with by Bourkes in the ordinary course of their business supported that conclusion.
94. McCann and Courtney, Companies Acts 1963-2009, (Dublin, 2010) in dealing with proceeds of sale clauses in the context of s.99 of the Companies Act 1963 provide the following helpful commentary:
“Proceeds of sale clause: In some cases it has been held that a clause which purports to retain the proceeds of a sub-sale of goods until the purchase price has been paid, will not be regarded as a registerable charge provided that it satisfies all or some of the following criteria:
(a) it expressly creates a fiduciary relationship between the seller and the buyer;
(b) it stipulates that in any sub-sale the buyer is to be regarded as acting for and on behalf of the seller;
(c) it imposes a duty on the buyer to keep the proceeds of any sub-sale separate from the buyer’s other moneys; and
(d) it requires the buyer to account for such proceeds to the seller.”
95. Most recent decisions, as is stated by the aforementioned authors, have leaned against the view that a clause in the above terms is successful in retaining title such as to entitle the seller to trace monies receivedby the purchaser following the resale of the goods. The greatest indicator in favour of title passing to the purchaser, regardless of the existence of a retention of title clause, is an agreement between the parties that the purchaser may sell on the goods in the course of its own business, an undisputed right of BHT in the present proceedings. If, on the one hand, Unitherm had retained full legal and beneficial title to the goods, the Court could not find that BHT had created a charge on the goods in favour of Unitherm as it is not legally possible for the buyer to charge in favour of the seller a title or interest which the buyer has not got. On the other hand, if on the true construction of the agreement the legal title to the goods has passed from the seller to the buyer, the Court may conclude that the legal consequences of the agreement is that the position of the seller is in fact secured by a charge created in his favour over the goods by the buyer.”
Shanahans Stamp Auctions Ltd. v. Farrelly
[1962] I.R. 444
Budd J.
“But then the peculiar position of the syndicated investors has to be dealt with. I have already stated that in my view, on the true construction of the contract, it was not the intention of the parties that the investors should be entitled to the stamps in specie. There is this also to be said with regard to their claim to have the syndicated stamps in specie: the Court should not make an order which is totally impracticable and virtually impossible to carry out in practice. No one has been able to suggest to me any practical and workable method whereby the official liquidator could carry out an order to deliver the syndicated stamps in specie. The insuperable difficulties of obtaining agreement amongst the very many investors in most syndicates as to what the official liquidator is to do physically with the stamps are obvious.
The question still remains as to whether or not the syndicated investors have any special rights in regard to the proceeds of sale of syndicated stamps. I must not lose sight of the fact that the investors’ rights are governed by a contract, and, although certain equitable principles may have become applicable, that does not mean that if particular parties have rights under the contract different to other parties, these rights should not be given effect to.
It was part of the contract, as I have found it, that the stamps when purchased should be allotted to syndicates and then “treated” as their property. As regards the syndicated investors the contract with them at the time of liquidation had reached a certain stage. As. Mr. Matheson says, they had been informed that their money had been used in the purchase of particular stamps, and again applying the principle in Hallett’s Case (1) that a person who does an act which may be rightly performed cannot say that it was done wrongly, it would seem that at least as between the syndicated investors and the Company it should be assumed that the act of purchase and allotment was done rightly and that the syndicated owners therefore have a particular equity as regards the syndicated stamps. If so, they would be entitled again prima facie to a charge over these stamps to which their money has been traced in equity and which have been appropriated to them and to a consequent right to have them sold for their benefit. Such prima facie right should not, however, be operated in their favour if it works an injustice. I will deal with the claims of creditors later, but for the moment I must pause to consider whether the declaration of a right to a charge and sale in favour of the syndicated investors as regards the syndicated stamps would operate to work an injustice on the general body of unsyndicated investors. This is undoubtedly a very debatable point, but having regard to the nature of the contract which all investors entered into it must have been clear to all that the stamps purchased with their money would in due course be allotted to syndicates and then “treated” as their property, the proceeds of the sale of stamps allotted being divided amongst the members of the syndicates to which they were respectively allotted. It so happened that in the case of some of the syndicated investors the stage of allotment had been reached. That was their good fortune and it does not seem to me that the unsyndicated investors can properly complain that any injustice is done to them if the syndicated investors are allowed to take advantage of the actual state of affairs that existed at the time of liquidation, because all investors knew the procedure that was to be operated under the contract and if it had reached a stage more favourable to some than others that was something that they must all be deemed to know would occur. Therefore it would seem to me that making a declaration of charge in favour of the syndicated investors over the syndicated stamps does not work an injustice on unsyndicated investors. Therefore sale of the syndicated stamps and rateable distribution amongst the syndicated investors would seem the proper relief to grant, subject again, however, to any rights the general body of creditors may have.
Ordinary creditors of a company who are not paid in full, of course, suffer an injustice in the abstract, but that is not the particular type of injustice I have to consider here where the question is as between them and the investors, whom I have found to have prima facie certain rights in equity by way of charge and pro rata distribution. In some cases, such as in the circumstances arising in respect of certain of the claims in In re Diplock (1), the equitable remedy of a charge on a mixed fund will not be granted where it will work an injustice. The question then arises as to whether the making of a tracing or charging order in favour of the investors would result in that particular type of injustice to the ordinary creditors that would make it inequitable to make the order to which I have held that the investors are prima facie entitled.
I must start, it seems to me, by having regard to what I may call the general principles applicable. Should a person, having trust property in his possession, die or go bankrupt, the beneficiaries under the trust take their property in full in priority to the general body of creditors. The same thing applies in the case of a company in liquidation. The blending of trust funds with the monies of the deceased trustee would not”it would appear from what was said in Hallett’s Case (1)”make any difference to the priority of the beneficiaries, and so it would be in the case of a company in liquidation. The creditor cannot claim to stand as against a cestui que trust in any better position than the deceased trustee would. Likewise, the creditors of a company are in general in no better position as against beneficiaries of trust monies in a company’s hands at the time of liquidation than the company before liquidation. The distinction, as I understand, is based on the fact that the beneficiary seeks his own property, or the proceeds thereof, being aided in equity to obtain restitution. The ordinary creditor, however, can only seek payment of his debt to the extent that there are assets, the property of the deceased debtor, bankrupt or company in liquidation which are available to meet his claim.
I was not referred to”nor have I been able to discover”any case in which it was expressly laid down that the ordinary creditors of a fiduciary agent, whose goods or money was used for the purposes of the agent’s business, were entitled to rank before those whose money or property was held by the agent in a fiduciary capacity. Such a proposition would seem contrary to the view that equity aims in such cases at restitution. Further, it would seem contrary to the principle that as against a cestui que trust the creditors of a deceased or bankrupt trustee cannot claim to be in any better position than the trustee himself could be and, as I understand it, a fiduciary agent stands in the same position as a trustee in a case where he holds the property of his principal for a specific purpose. In Hanbury on Equity (7th ed., 1957, at p. 33) I find the general proposition that equities bind inter alia creditors, which supports this view. The alleged right of the creditors to take priority over the investors has not therefore been sustained.
I have therefore come to the conclusion that certain of the contentions made on behalf of the syndicated and unsyndicated investors are in principle correct and that the syndicated investors are entitled to a declaration of charge over the stamps allotted to their respective syndicates to be implemented by a sale thereof and the unsyndicated investors are in a like position as regards the unsyndicated stamps. They, too, are entitled to a declaration of charge to be implemented
In re H. Williams (Tallaght) Ltd.
[1996] 3 I.R. 534
Geoghegan J.
“ No authority has been cited in support of the argument of the official liquidator and I can find no basis for his submission in the wording of section 98. The relevant part of that section reads as follows:
“(1) Where . . . a receiver is appointed on behalf of the holders of any debentures of a company secured by a floating charge . . . then, if the company is not at the time in the course of being wound up, the debts which in every winding-up are, under the provisions of Part VI relating to preferential payment to be paid in priority to all other debts, shall be paid out of any assets coming to the hands of the receiver . . . in priority to any claim for principal or interest in respect of the debentures.
(3) The periods of time mentioned in the said provisions of Part VI shall be reckoned from the date of the appointment of the receiver . . .”
The debts in respect of which priority is to be given are the same debts as would be given preferential treatment under s. 285 but that is really the only link between the two sections. There is nothing in s. 98 which in any way suggests that once a particular preferential creditor has been paid his preferential debt in the receivership, he cannot subsequently make a claim in respect of a preferential debt if the company goes into liquidation. There could well be a situation where a company would go into receivership on foot of a debenture secured by a floating charge and the receiver succeeds in paying in full the debenture holder after first discharging the preferential debts and the company does not go into liquidation for many years afterwards. Is it to be said that notwithstanding the mandatory requirements of s. 285 the official liquidator is to ignore these in respect of a creditor who has already been treated as a preferential creditor in the earlier receivership? Such a proposition would seem to me to be quite unsustainable. Section 285, sub-s. 2 provides that in a winding-up”there shall be paid in priority to all other debts” certain categories of debts which are set out in the section and which include “all assessed taxes, including income tax and corporation profits tax, assessed on the company up to the 5th April next before the relevant date and not exceeding in the whole one year’s assessment”. Although as I have already mentioned there is no authority in point, counsel for the official liquidator has referred me to In re United Bars Ltd. [1991] 1 I.R. 396. In his judgment in that case, but in a totally different context, Murphy J. expressed the view that the only purpose of s. 98 should be to equate the rights of preferential creditors in a receivership with those in a liquidation, not to improve on those rights. But I do not think that that passage in Murphy J.’s judgment lends any support to the argument of the official liquidator in this case. What was at issue in In re United Bars Ltd. was whether assets realised by a receiver on foot of a fixed charge as distinct from a floating charge were to be used for the purpose of discharging preferential creditors. Murphy J. decided that he should follow the clear English case law to the effect that they should not. He relied on In re Lewis Merthyr Consolidated Collieries [1929] 1 Ch. 498 and In re G.L. Saunders Ltd. (in liquidation) [1986] 1 W.L.R. 215. Although he was following English authorities, he expressed the view that there were undoubtedly arguments both ways. But one strong point in favour of the view taken by the English courts was that, in a liquidation, preferential creditors have no right to preferential payment out of assets the subject matter of a fixed charge, but only out of assets the subject matter of a floating charge, and he doubted whether it could have been intended that preferential creditors claiming under s. 98 could be held to be in a better position, that is to say entitled to claim priority out of assets realised from a fixed charge. That is the context in which equality came into play, but in my view it has no relevance to the arguments in this case. I am satisfied, therefore, that if it is not statute barred the priority claim of the Revenue Commissioners in respect of the corporation tax is well founded.
I now turn to the statute bar question. Again the argument of the official liquidator is neatly summarised in para. 12 of the points of claim. That paragraph reads:
“In the event that the Revenue were to prove its entitlement to a preferential payment it is too late to make this claim. Advertisements for creditors of Tallaght were published in July, 1992. The first notice the official liquidator had of this claim was the Revenue’s letter of the 16th December, 1994. Section 285, sub-s. 14 provides that claims must be notified or become known to the official liquidator within six months after advertisement.”
The precise wording of s. 285, sub-s. 14 is as follows:
“The priority conferred by subsection (2) shall apply only to those debts which, within in the period of six months after advertisement by the liquidator for claims in at least two daily newspapers circulating in the district where the registered office of the company is situated, either –
(a) have been notified to him; or
(b) have become known to him.”
A statutory time limit cannot be extended by a court unless the statute permits such an extension. That obvious principle does not really require authority and is, I think, accepted by Mr. Aston, counsel for the Revenue Commissioners, but it has been reaffirmed by Carroll J. in In re Oakthorpe Holdings Ltd. [1989] I.L.R.M. 62. The time limit with which the Court was concerned in that case was also a time limit under the Companies Act, but under a different section. But I am quite satisfied that there is no power conferred on the Court either expressly or by implication to extend the time limit imposed by s. 285, sub-s. 14 of the Companies Act, 1963, as inserted by s. 134 of the Companies Act, 1990. But Mr. Aston argues that the corporation tax debt in respect of which priority is claimed must have become known to the liquidator within the time and he further argues that the liquidator’s affidavit does not say that it was not known to him and that at any rate the affidavit does not set out sufficient facts to support a plea of statute bar. I find myself unable to accept these submissions. The affidavit of the liquidator when read in context makes it clear not only that he was not notified within the periods prescribed by s. 285, sub-s. 14 of the Act of 1963, as amended by s. 134 of the Act of 1990, but also that the debts to the Revenue Commissioners in question were not known to him within the time limit. I do not think that the words “have become known to him” in sub-s. 14 can be extended to include constructive knowledge. In my view there must be either actual notification or actual knowledge. Accordingly, the priority claim of the Revenue Commissioners is out of time and must fail on that account.
Bell Lines (In Liquidation) & ors -v- Waterford Multiport Ltd (In Liquidation)
[2010] IESC 15
Supreme Court
Fennelly J.
“19. The claim for preferential status advanced by the UK Agency must be considered by reference to the provisions of section 285 (6) of the Act of 1963. I do not think that equitable principles of restitution are relevant. The question here is not the right of the UK Agency to reimbursement. That is not in issue. The only question relates to priority.
20. I would thus express the question to be decided in the following way. The employees of the companies, based in the UK (including Northern Ireland) had claims in the liquidation which enjoyed preferential status to the limited extent provided for in section 285 (2). For example, only four months wages come within the provision. The UK Agency discharged those payments because it was obliged by law to do so.
21. It is not contested that the UK Agency is entitled to prove as an unsecured creditor in the liquidation for sums including those representing the employees’ preferential claims. The precise legal basis of that entitlement has not been spelled out in the High Court judgment. It is clear that the UK Agency discharged liabilities of the company by virtue of a legal obligation. Where any person, under compulsion of law, makes a payment for which another person is primarily liable, the first person is entitled to recover the amount of the payment from the second person. The result is the same as where a payment is made to a third-party at the request of a person. On the facts of the present case, these conditions are satisfied. The companies (in liquidation) were liable to their employees for wages and other employment benefits. The UK Agency was legally compelled, by virtue of the Directive 80/987/EC, to discharge those payments. It did so.
22. The decisive question then is, of course, whether those payments were made to the employees “out of money advanced” by the UK Agency “for that purpose.” It is entitled to preferential status only if that question receives an affirmative answer.
23. In Station Motors Ltd v. Allied Irish Banks Ltd [1985] I.R. 756, a bank had advanced money to a company, part of which it knew was to be used to pay wages, although there was no clear division between those payments and more general payments. Carroll J. found, at p. 764:- “the bank in fact advanced money knowing part of it would be used for wages. Therefore, in my opinion, insofar as that part is concerned, they are entitled to the benefit of subrogation provided in s. 285, sub-section 6.” In reaching this conclusion, she had relied on a judgment of Plowman J. in Re Rampgill Mill Ltd. [1967] 1 Ch. 1138, whose facts she summarised as follows:
“This was an action between a bank and a liquidator and it was common ground that within the limit of £500 per week, there was no restriction on the purpose for which cheques could be drawn on the bank. It was also common ground that the arrangement was made with wages in mind. In that case, as in this, the bank did not insist on a wages account being opened and operated in such a way as to allow the bank to get maximum priority.”
Plowman J expressed the following views at page 1145:-
“In my judgment, counsel for the liquidator seeks to apply too rigid a test. The object of section 319 [4]” [the equivalent of s. 285, sub-s. (6), of the Companies Act, 1963], “as I see it, was to establish a principle of subrogation in favour of banks [although its operation is not, of course, confined to banks], and the subsection should, therefore, in my judgment, be given a benevolent construction rather than one which narrows the limits of its operation . . . In the present case, the bank clearly had a purpose in advancing money to the company — namely, the purpose of enabling it to meet its commitments. I then ask myself, ‘what commitments?’, and my answer, so far as the money provided under the Alston arrangement is concerned, is wages, which were the whole raison d’etre of that arrangement.”
24. The problem addressed in those two cases arose from the uncertain or loose arrangements between the respective banks and the company with regard to the use of the monies advanced. No such problem arises in the present case. The money was paid directly to the employees to discharge ascertained debts. Nonetheless, these cases establish a principle of “benevolent construction” of section 285(6) of the Act of 1963.
25. As I see it, three objections based on interpretation of the sub-section are raised on behalf of the general body of creditors, namely: that the UK Agency did not “advance” the money; that the payments were not made out of a sum advanced, but were paid directly to the employees; that the subsection applies only to monies advanced prior to the winding up.
26. The court was referred to dictionary definitions and authorities with regard to the meaning of the word “advance.” So far as relevant to the present context the following from the Oxford English Dictionary (1989 2nd ed.) is useful: “The advancing or paying beforehand of money; payment in advance.” It is, of course, true that “advance” may also and frequently does refer to the act of lending money. But that is not its exclusive meaning. It may, depending on the context, refer to a prepayment of sums to be due in the future. I am satisfied that the UK Agency made payments to the employees of the companies in advance of their rights being discharged in the liquidation. If they had not been paid by the UK Agency, the employees would have had to await payment at some uncertain future date in the course of the liquidation. In that sense, therefore, the UK Agency advanced the payments to the employees.
27. The second point is somewhat more difficult. The UK Agency did not make the payments to the employees “out of” any identifiable larger sum. Nor were they made to the companies or to any other intermediary, as was the case in Station Motors v. Allied Irish Banks Ltd and Re Rampgill Mill Ltd., both already cited. It is accepted that the sub-section has normally been invoked where a bank or other lender has “advanced” money to the company for the payment of wages. But the subsection does not require either payment to the company or another intermediary or that the monies be advanced out of any larger sum. What is required, in the first instance is that a “payment has been made…,” which is indisputably the case. As a matter of simple fact, they were made out of monies advanced by the UK Agency. While the language may suggest that there is a larger fund from which the individual payments come, there is nothing to suggest that such a fund has to be established outside or independent of the payer’s own funds. Thus, I do not see the prepositions “out of” as obstacles to the application of the section in this case.
28. The third point is whether the sub-section imposes a temporal limit on the advance of the monies for which preferential status is claimed. Must they have been paid prior to the winding up? There is nothing to that effect in the section. Subsection (2)(b) speaks of “all wages or a salary…… of any clerk or servant in respect of services rendered to the company during the 4 months next before the relevant date…” It does not refer to a former employee. Subsection (6) speaks of a payment which “has been made…,” without specifying that the payment must have been made prior to the “relevant date” carefully specified in subsection (2). That sub-section refers, in the case of paragraphs (b) and (c) to wages or salary “in respect of services rendered to the company during the four months next before the relevant date…” and in the case of paragraph (d) to “all accrued holiday remuneration…… payable… on the termination of his employment before or by the effect of the winding- up order.” These provisions relate to amounts becoming due to employees prior to the winding up. Although they are concerned with those employees’ rights in the winding up, they do not refer to them as “former employees.” Nor does subsection 6 speak of former employees. Accordingly, the latter subsection is capable of referring to payments made to employees, who are technically no longer in the employment of the company, so long as those payments are made in discharge of liabilities arising, as required by subsection (2), in respect of employment during the period prior to the relevant date.
29. Finally, I should refer to the significance attached by the learned trial judge to section 10 of the Act of 1984, which makes special provision allowing the Minister, acting as the Irish guarantee institution, to claim priority under section 285(6) of the Act of 1963. Clearly, the legislature did not contemplate a case such as the present where the employees’ claims have been discharged by the guarantee institution of another member state. The UK Agency has not attempted to make any claim pursuant to section 10 of the Act of 1984. Clearly it could not having regard to its terms. The exclusion of the guarantee institutions of other member states may well have been an oversight. The Act was passed long before the decision in Everson and Barrass v. Secretary of State for Trade and Industry and Bell Lines Limited (in liquidation), already cited. The exclusion of the UK Agency from the preferential rights available to the Irish agency might appear to discriminate between the guarantee institutions of the member states. It may be that the principle of “conforming interpretation” could have been invoked on its behalf. See Case 14/83 Von Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECR 1891; Case C-106/89 Marleasing SA v. La Comercial de Alimentacion SA [1990] ECR I-4135. This point has not been argued and I express no concluded view. It would tend to lead to the same result as is proposed in this judgment. For present purposes, however, it suffices to state that this omission from the Act of 1984 cannot affect the proper interpretation of section 285 (6) of the Act of 1963, if the latter provision, properly interpreted, allows for the claim of the UK Agency.
30. For the reasons already given, I am satisfied that the UK Agency is entitled to appropriate priority pursuant to section 286(6). I would allow the appeal and, instead, make an order pursuant to paragraph D of the notice of motion returnable for 11 July 2005.”