THE HIGH COURT
		1990 No. 2206S
BETWEEN
LAURENCE J. GOODMAN 1st A.B.P. HOLDINGS LIMITED 2nd ANGLO BEEF PROCESSORS LIMITED AND GEMON LIMITED
		PLAINTIFFS
AND
JOSEPH KENNY
		DEFENDANT

Judgment delivered the 30th day of July, 1996 by Kinlen J.

	Initially these proceedings were commenced by a Summary Summons dated the 18th September, 1990.  The Plaintiffs therein were named as Laurence J. Goodman and A.B.P. Holdings Limited.  The Special Indorsement of Claim reads as follows:-

	"The Plaintiffs and each of them claim against the Defendant for:-		
(a)	The sum of £22,830,000 in sterling currency being the amount due and owing
		 by the Defendant to the Plaintiffs under a loan advanced by the Plaintiffs to the Defendant which requires repayment by the Defendant on or before the 13th June, 1990 which sum is still due and owing by the Defendant to the Plaintiffs and notwithstanding the expiry of the said repayment date and requests and demands for payment of same the said sum is due and owing by the Defendant to the Plaintiffs as money lent by the Plaintiffs to the Defendant or as monies had and received by the Defendant for the use of the Plaintiffs or as monies paid for a consideration which has wholly failed.

	PARTICULARS
	(b)	Under and by virtue of a letter of the 13th March, 1990 from the Defendant to the first named Plaintiff the Defendant agreed he would pay the sum of £22,830,000 in sterling currency on or before the 13th June, 1990 to an account to be designated by the first named Plaintiff which was in consideration of the money being advanced to the Defendant at his request on or about the said 13th day of March, 1990 and under the terms of the said letter it was provided that in consideration of the said payment the Defendant would require the return of cancellation of a Promissory Note of £25,000,000 from Mercantile Credit to the 13th March, 1990 which ostensibly purported to secure the advance of the said loan of money by the Plaintiffs to the Defendant but the said Promissory Note was not affected properly or at all by the Defendant notwithstanding the requirements of the said loan agreement and in the circumstances the said monies were advanced for a consideration which had wholly failed and the said monies were had and received by the Defendant to the use of the Plaintiffs.  
	(c)	Interest on such sums as are awarded pursuant to Section 22 of the Courts Act of 1981.  
		An appearance was entered on the 21st January, 1991.  The matter seems to have lain fallow until late in 1994.  By a Motion paper dated the 9th November, 1994 returnable for the 15th December, 1994, application was made to the Master for an Order adding Anglo Beef Processors Limited as a Plaintiff and changing the name of the second named Plaintiff to 1st A.B.P. Holdings Limited and for an Order giving the Plaintiffs liberty to enter final judgment against the Defendant in the sum of £22,830,00 in sterling currency (or the equivalent thereof in Irish currency as of the date of judgment) being the amount due and owing by the Defendant as monies lent or given in trust by the Plaintiffs to the Defendant at his request and, if necessary, an Order directing that interest on same under Section 22 of the Courts Act, 1981 should be determined by a judge and transferring the matter to a judge for determination of the issue in relation to interest.  This was grounded on the Affidavit of Tom Walsh sworn the 8th November, 1994 with two exhibits attached thereto.  Mr. Walsh is the former group treasurer of the Anglo Irish Beef Processors Group ("AIBP Group") and he held that position from January, 1986 to August, 1990.  He makes the Affidavit on behalf of  and with the authority of the Plaintiffs.  He avers that on or about the 26th of February he was approached in his capacity as such group treasurer by Mr. Desmond Lamont of L & P Financial Trustees of Ireland Limited on behalf of their client the Defendant herein, Mr. Joseph Kenny.  Mr. Lamont stated that the Defendant was a representative of property investors in Ireland with a property portfolio in this country worth £25,000,000 and that the investors wished to use that portfolio as security to consummate a property transaction off-shore.  Mr. Lamont represented that the Mercantile Credit Company of Ireland Limited were holding the title deeds to the property portfolio.  Mr. Lamont further stated that the Defendant required funds for a period of three to four months and that security in the form of a Promissory Note was to be provided by Mercantile Credit Company of Ireland Limited which was to be payable to a limited liability company in the AIBP Group to be nominated by the Plaintiffs (which in the event was to be the second named Plaintiff herein).  He further avers that on the 13th March, 1990 the Defendant was advanced by way of a loan or trust the sum of £22,830,000 the said sum to be repayable on or before the 13th June, 1990.  Prior to advancing the said loan or trust the Plaintiffs had received and approved the text of the Promissory Note from Mercantile Credit Company of Ireland Limited and in addition had received a draft of a letter from the Defendant guaranteeing repayment of the monies.  Copies of the said Promissory Note and letter are exhibited as "TW 1".

	Mr. Walsh further avers that:-

		"The said sum was advanced to the Defendant by the first named Plaintiff with monies obtained from the second named Plaintiff acting as his agent to a bank account nominated by the said Defendant namely, City Project Financier's Bank Account at National Westminster Bank in London.  On the 14th day of March, 1990 the Plaintiffs received a formal acknowledgement in writing signed by the Defendant that the said monies were repayable to the first named Plaintiff on or before the 13th June, 1990."

	A copy of the said letter is exhibited as TW 2 in this Affidavit.
	He further avers:-

		"The repayment date has long since passed.  In the event it has transpired that no security was at any material time provided by Mercantile Credit Corporation of Ireland Limited or otherwise.  The monies were subsequently dissipated and the Defendant herein has failed to repay the said monies or any part thereof notwithstanding requests and demands for payment of same.  The AIBP group of companies went into receivership in August of 1990 resulting in a number of changes within the group structure."
	
	Mr. Walsh was informed and believes that the second named Plaintiff, a Northern Ireland Registered Company, sold by way of an Asset Purchase Agreement dated 3rd September, 1990 its entire business as a going concern together with the undertakings property rights, assets, contingent assets, liabilities and obligations whatsoever to Shoreditch Limited, a company registered in the Republic of Ireland.  On the 27th September, 1991 Shoreditch Limited sold all of its business undertakings, property rights, assets, contingent assets, liabilities and obligations to Rusper Limited, a company registered in England.  That company subsequently changed its name to Anglo Beef Processors Limited.
	The aforesaid company is entitled to be a Plaintiff in these proceedings.  On the 11th October, 1991 the second named Plaintiff had changed its name to 1st ABP Holdings Limited.
	By an Affidavit sworn the 5th January, 1995 the Defendant avers:-

		"In March 1990 persons representing me had negotiations with representatives of the Plaintiffs concerning raising funds in order to finance an investment transaction and a broad agreement was reached orally that certain funds should be advanced.
		It was a pre-condition of any liability on my part that any monies advanced 	should be:-
		 (i)	paid into a bank account which I would designate, and entirely
			control, 
			and
		(ii)	loan will be secured by a Promissory Note from a financial 	
			institution
		furnished in advance.
	
		Neither of these conditions were fulfilled for reasons entirely beyond my 			control.  		
		The Plaintiffs in breach of the aforesaid agreement,
		 (i)	 neglected to obtain the security which had been agreed and recklessly advanced the said funds without any security 
			and
		(ii)	did not lodge the said funds into a bank account designated by me or over which I had full control but recklessly paid into some other bank account.

		By reason of the aforesaid the Plaintiffs had contravened fundamental conditions of the aforesaid oral agreement and there is no liability on my part in respect of their alleged loan.
	4.	"Regarding my letter of the 13th March, 1990 to Laurence J. Goodman
		exhibited by the Plaintiffs,
		 (i)	The said letter was written on the understanding that each of the aforesaid preconditions of any liability on my part would be fulfilled.  As neither of these were fulfilled I am advised by Counsel that there has been an entire failure of consideration.
		(ii)	The explicit and only consideration therein for my agreeing to pay approximately £23,000,000 was that there would be returned to me or cancelled a Promissory Note for £25,000,000 as described.  No note for that, or any other sum, was so returned or cancelled and I have been advised by Counsel that there has been a total failure of consideration.
	5. 	"In any event neither of the Plaintiffs have any title to the money which they seek to recover.  I have been informed by their former solicitor Rory O'Donnell of 16 Fitzwilliam Place, that by deed of assignment dated the 21st June, 1990 Laurence J. Goodman acting presumably as agent for ABP Holdings Limited had assigned the aforesaid alleged debt and all interest due and to become due thereon to a company called Gemon Limited.  I am more than surprised that this vital fact is not stated in the particulars set out in the Summary Summons herein issued some five months later or in the Affidavit herein of Tom Walsh.  In a letter dated 24th June, 1990 from the said Rory O'Donnell to my then solicitor James O'Higins it is stated (4th para).

		"Our client Laurence J. Goodman has assigned the benefit of the loan agreement to the company called Gemon Limited by Deed of Assignment dated 21st June, 1990.  This is a shelf company which has never traded before and will enable me to more conveniently instruct our agents abroad and not restrict our client who travels a lot".

	9.	"I have been advised by Counsel, accordingly, that even if (which is denied) the Plaintiffs did have a right of action against me in respect of the alleged loan or on foot of my aforesaid letter they have assigned away all their rights thereto"

		He refers to a copy of the said letter in exhibit A.
		He continues:-

	6.	"Additionally I say that on or about the time the aforesaid loan was made the Plaintiffs were engaged in financial speculations and in the business of money lending.  This is a matter which I say and believe will be confirmed when discovery is duly made by them and accordingly I am advised by Counsel that any claim they may have against me would be barred by the Moneylenders Act."

	7.	"Finally insofar as my aforesaid letter may be regarded as a guarantee to ABP Holdings Limited (a foreign company).  I have been advised by Counsel that exchange control approval by the Central Bank of Ireland was required therefor.  I doubt very much that such approval was sought and obtained and say that this is a matter which will be confirmed when discovery is duly made; if no approval was granted.  I am advised by Counsel that any claim that the company may have against me is barred by the Exchange Control Acts."

	In the exhibited copy letter from Rory O'Donnell & Company to James F. O'Higgins,  Solicitor dated the 24th June, 1990 there is an additional line in paragraph 4.  It reads:-

		"I confirm that the share in Gemon Limited are now held in trust for our client and that the company will be under his control."	

	The next Affidavit is that sworn by John O'Donnell on the 11th January, 1995.  He is the Financial Director of the second named Plaintiff and he confirms the Affidavit of Tom Walsh.  He also avers that he has read the Affidavit of Mr. Kenny.  He accused Mr. Kenny delaying tactics and says his behaviour was consistent with his attempts to evade and frustrate these proceedings.

	4.	"In this Affidavit Mr. Kenny makes, I think, five points:-

		(a)	that there was some pre-condition which was not fulfilled.
		(b)	that there was a failure of consideration.
		(c)	that there was an assignment of Gemon.	
		(d)	that there was a possible contravention of the Moneylenders Act.
		(e)	that there was a possible breach of the Exchange Control Acts..

	I believe that these points are completely without merit and that they are only raised by Mr. Kenny for the purposes of delay and obfuscation".  

	5.	"I say and believe that the entire dealings between the parties hereto when the loan was negotiated took place in the period between the 26th February and the 13th March, 1990.  I say and believe that Tom Walsh was approached by Mr. Lamont of L & P Financial Services on behalf on an undisclosed party with a view to obtaining a short-term loan.  The security for that loan was to be provided by the borrower (as it transpires Mr. Kenny) and was to be a Promissory Note from Mercantile Credit Company Ireland for £25,000,000.  All negotiations in relation to this matter were carried on by L & P Financial Services.  Mr. Kenny took no part in negotiations and I am advised never dealt with Tom Walsh or spoke to him or any person on behalf of the Plaintiffs and indeed his identity was not disclosed and confirmed until the 13th March when the transaction was due to be carried out.
	
	6.	"I say and I am advised by Tom Walsh that at no stage during his discussions with L & P Financial Services did any person on behalf of Mr. Kenny attempt to suggest that there were any pre-conditions to Mr. Kenny's liability.  It would have been ludicrous to do so.  In any event I believe that the monies were paid into the pay account directed by L & P Financial Services, Mr. Kenny's representatives.  On the 13th March, 1990 Mr. Lamont instructed Tom Walsh to transfer the funds to the account of Alexios Trust.  He did so and confirmed his instructions to the second named Plaintiff's bank in London namely, AIB Plc, at 12 Old Jewry.  The following day Mr. Lamont changed his instructions and instructed Mr. Walsh to pay the money into the account of City Project Financiers in London.  This was done".

		He refers to copy of the instructions from Mr. Lamont on the 30th March.  Tom Walsh's confirmation of the same date and Mr. Lamont's further instruction of the 14th March which were stapled together as exhibit JOD 1.  He further avers:-

	7.	"It is also quite ludicrous to suggest as Mr. Kenny now attempts to do that it
		was in some way a pre-condition to his liability that a Promissory Note would be furnished in advance.  As Mr. Kenny well knows his liability arose when the loan was made.  The Promissory Note was the very security offered to the Plaintiffs by L & P on behalf of Mr. Kenny and it was not suggested to be, and could not have been, a pre-condition to his liability.  In fact, had that security been provided and called upon, then in all likelihood Mercantile Credit would in turn seek to recover the loan from Mr. Kenny.

	8.	"It is true that the first named Plaintiff made an assignment of rights in respect of Mr. Kenny's indebtedness to Gemon Limited a company which is a wholly owned subsidiary of the second named Plaintiff.  In fact Mr. Kenny also executed such an assignment in 1990 and the purpose of the assignments was to facilitate the prompt commencement of proceedings overseas for the recovery of the monies.  However Mr. Goodman did not attempt to seek or assign the rights of the second named Plaintiff and indeed in proceedings which were subsequently commenced in Cyprus in which Mr. Kenny is a Plaintiff both Gemon Limited and the second named Plaintiff are co-Plaintiffs.  Mr. Goodman acted at all times as an agent of the second named Plaintiff who are entitled to maintain these proceedings.  In the circumstances I do not believe that the point raised by Mr. Kenny is a genuine one but for the avoidance of doubt I pray to this Honourable Court for an Order joining Gemon Limited as a co-Plaintiff in these proceedings...."

	9.	"I am advised by the Plaintiffs' Solicitors and Counsel and believe that the transaction here was not a contract effected by the Moneylenders Act.  It was a short term loan negotiated by the Plaintiffs and was the first and only time in which the Plaintiffs did so.  Accordingly I believe it is clear that (and I believe Mr. Kenny knows) the Plaintiffs were not engaged in financial speculation or in the business of moneylending and that this claim is not effected by the provisions of the Moneylenders Act.  

	10.	Finally, I note that Mr. Kenny also seeks to raise some unspecified issue under the Exchange Control Regulations.  Even this tentative suggestion is predicated on the assumption that his letter could be regarded as a guarantee.  In fact I believe it is manifestly clear that the letter on the 13th March is not a guarantee.  It is a confirmation of Mr. Kenny's obligation to repay the loan made to him.  In fact as the documents exhibited at JOD 2 above makes clear the loan was made from one account in the United Kingdom to another and could have been made and repaid either in that jurisdiction or this.  In the circumstances even if this claim could be characterised as a claim on foot of a guarantee (and I am advised and believe it could not) I am advised by the Plaintiffs' Solicitors and Counsel and believe that the transaction does not contravene any applicable exchange control regulations."

	Mr. Tom Walsh swore a supplemental Affidavit on the 25th January, 1995.  He avers:-	

		"I say there is absolutely no merit in Mr. Kenny's contention that there was some pre-condition which was not fulfilled.  It was I who was approached by Mr. Lamont of L & P Financial Services on behalf of an undisclosed party with a view to obtaining a short-term loan.  The security for that loan was to be provided by the borrower which later transpired to be Mr. Kenny and was to be a Promissory Note from Mercantile Credit Company Ireland for £25,000,000.  To suggest that the security was to benefit the borrower rather than the lender is absurd in the extreme.  All negotiations in relation to this matter were carried on by L & P Financial Services.  Mr. Kenny took no part in the negotiations and  never dealt with me or spoke to me or any person on behalf of the Plaintiff.  His identity was disclosed and confirmed on the 13th March, 1990 when the transaction was due to be carried out.

	4.	At no stage during my negotiations with L & P Financial Services did any person on behalf of Mr. Kenny attempt to suggest that there were any pre-conditions to Mr. Kenny's liability.  I complied in full with the instructions received from L & P Financial Services in respect of the transfer of money  ..." (and he refers to Mr. O'Donnell's exhibit "JOD 1").

	The Defendant brought a Motion dated the 20th January, 1995 to strike out the Plaintiff's claim as it disclosed no cause of action on the basis that the first named Plaintiff acted at all times as agent of the second named Plaintiff and the Plaintiffs have assigned such rights as they may have against the Defendant to a third party.  There is then the Supplemental Affidavit of Joseph Kenny sworn the 8th July, 1995.  At paragraph 2 thereof the following averment appears:-

		"Sometime in 1990/1991 proceedings were brought in the District Court of
		 Paphos in Cyprus relative to money allegedly lent to me by Laurence J.
		 Goodman in March, 1990.  The Plaintiffs there were:-

			 (i)	ABP Holdings Limited.
			(ii)	Gemon Limited (suing personally and on my behalf under a 
				Power of Attorney given by me).

		There are five Defendants the principal ones being Andreas Kitalides, a South African financier and his father, Nestor Hadzi Arodotou of Paphos."

		  Apparently Mr. Kenny changed his lawyers and he also withdrew his Power of Attorney.  The main point of this Affidavit is that basically in Cyprus it was revealed that Laurence J. Goodman had assigned all his rights concerning the said money and/or debt to Gemon Limited.  The Affidavit contends that this information provided in Cyprus contradicts what is being told in this Court.  It was a highly material fact which was not disclosed.  In that Affidavit also the Defendant was expecting copies of a relevant file from Cyprus to be sent to him by the latest the date of the swearing of the Affidavit, being the 8th July, 1995.  His lawyer was due in Dublin the following Monday and the Defendant stated that he would bring all the relevant papers with him.  This Affidavit exhibits letters in relation thereto.  One of the exhibits is of a fax sent from the Defendants former solicitors, Messrs. Ronan Daly Jermyn who states at paragraph 10.  

		"The said Mr. Goodman has agreed with the said Joseph Kenny to  lend and/or entrust the latter with the hereinbefore mentioned monies.  In respect of this loan and/or trust and in accordance with the relevant oral agreement the said Joseph Kenny promised in writing to Mr. Goodman to pay and/or repay and/or send or transfer backto the latter £22,830.00 sterling".

In the affidavit of Laurence J. Goodman sworn the 22nd May, 1996.   He confirms what Mr.Walsh had already stated.  He states:-
		“I was made aware that security for the loan was to be a promissory note from Mercantile Credit Company of Ireland for £25 million.  I was also made aware that Mercantile Credit Company of Ireland was a sister company of Barclays Bank Plc.

		“The second named Plaintiff was the source of the funds for this transaction.  However since the transaction involved the provision and receipt of securities and in order to take it outside the usual lines of credit for the AIBP Group and avoid breaching negative pledges the AIB Group had given to its lenders including Barclays Bank Plc, the bank lending the funds to the Second named Plaintiff for the purposes of the loan, the transaction was structured in such a way that I was to become the holder of the promissory note to be provided as security for the loan.  Accordingly the letter Mr. Kenny signed on the 13th March, 1990 was addressed to me.  However, I can confirm that at all times I was acting in relation to these funds as an agent of the Second named Plaintiff.  Although I have been advised that the said letter does not require to be stamped I believe that Mr. Kenny's representatives sought to raise in these proceedings an issue as to the stamping of this document.  The letter was accordingly submitted to the Revenue Commissioners for stamping and was subsequently adjudged by them not chargeable with stamp duty”.  

	He exhibits two copies of the letter as “LG1”.  

6.	I am aware that the sum of sterling £22,838,00 advanced to Mr. Kenny has never been repaid.  I am also now aware that the promissory note was never issued or received.  However the majority of the funds advanced was subsequently traced to Cyprus and are now the subject matter of proceedings in that jurisdiction and initially Mr. Kenny fully co-operated with the Plaintiffs in these proceedings and indeed assigned any possible claim he might have to the monies to Gemon Limited which is a wholly owned subsidiary of the Second named Plaintiff.  I also assigned any rights I might personally have had in respect of the funds to Gemon Limited to facilitate the pursuit of a claim. ...  As will appear from the document's original it has been stamped.  I believe that Mr. Kenny's representatives sought to raise an issue as to the absence of any stamp on this document.  While I do not believe that this is relevant or appropriate the document has nevertheless been stamped for the avoidance of doubt.  Morally while I believe that the Second named (which is also a Plaintiff  in the Cyprus proceedings) and its successors is the correct party to recover judgment in this matter for the avoidance of doubt I seek leave to join Gemon Limited as a co-Plaintiff in these proceedings.

7.	Finally Mr. Kenny has also sought to contend that the Plaintiffs herein have been engaged in unlicensed money lending.  This is simply untrue.  It is set out in the affidavit of John O'Donnell.  

		“The loan in this case was a once-off  transaction and neither I nor the Second named Plaintiff nor the proposed Plaintiffs were engaged at that time or indeed since in the business of money lending”.  

	It is intriguing to wonder why Mr. goodman either as principal or agent lent £22,830,000 without security and the Defendant facilitated the transfer of part, at least, of it to a South African Cypriot.  However these interesting queries are not before this Court.
	In an affidavit dated the 21st May, 1996 by John McLoughlin who is company secretary of  the Anglo Irish Beef Processors Group (AIBP) he sets out the history of structural changes which took place as a result of the AIBP group of companies going into examinership in August 1990.
	As already set out earlier in this judgment it says that the Second named Plaintiff herein, a Northern Ireland registered company, sold by way of an asset purchase agreement dated the 3rd September, 1990 its entire business as a going concern together with the undertaking, property rights, assets, contingent assets, liabilities and obligations whatsoever to Shoreditch Limited, a company registered in the Republic of Ireland.  It says that on 27th September, 1991 Shoreditch Limited sold all of its business undertaking property rights, assets, contingent assets, liabilities and obligations to Rusper Limited a company registered in England.  That company changed its name on 27th day of September, 1991 to Anglo Beef Processors Limited and these developments were supported by a copy of the Asset Purchase Agreement particularly as were incorporated on change of names JMCL2.  He also avers that the changed name (not subsequently  referred to herein) is Anglo Beef Processors Limited which changed its name on the 17th February, 1995 to 2nd Anglo Beef Processors Limited.  He also avers that on the 11th October, 1991 the Second named Plaintiff changed its name to 1st APB Holdings Limited and says that the title of these proceedings should be amended as follows:-

	“Laurence J. Goodman, 1st A.B.P. Holdings Limited, 2nd Anglo Beef Processors Limited and Gemon Limited -v- Joseph Kenny”

	There is an affidavit from Joseph Kenny dated the 4th July, 1996 and a subsequent one of the 19th July, 1996.  The Court has been provided with a clean copy of an Affidavit on the undertaking that it will be properly sworn and filed.  It was obviously to be sworn this month, namely, July 1996. The affidavit of the 4th July refers to various exhibits and states that because of the inordinate and unexplained delay on the part of the Plaintiffs in prosecuting these proceedings, inter alia lack of candour in presenting their case to the Court and their use of these proceedings as a mere tactical device the motion should be dismissed and remitted to plenary hearing.  He gives a history of the proceedings.  The Summary Summons was issued on the 18th September, 1990 no further step was taken until the 8th November, 1994 and a Notice of Motion for judgment was issued when it came before the Master in January of 1995 the Defendant's Counsel drew attention to allegedly major deficiencies in the Plaintiffs' pleadings and affidavits and the Master put it into the High Court list.  Additional affidavits were filed on behalf of the Plaintiff.  The matter came before this Court on the 4th May, 1995 but it was urged that not any of the then Plaintiffs in the Action but a company called Gemon Limited to whom apparently all relevant rights might exist against the Defendant had been assigned in 1990.  An adjournment was granted to the Plaintiffs.  It was on the 22nd May, 1996 that the Plaintiffs sought to have the adjourned hearing resumed and expressed their anxiety to have at least one aspect of it dealt with promptly because there might be a statute of limitations difficulty - the alleged right in respect of which summary relief is sought having occurred almost (and now over) six years previously.  The Defendant points out that in the Affidavits there are phrases used such as “ludicrous”, ”quite ludicrous” and “absurd in the extreme” but do not give any explanation about the inordinate delays.  He avers as follows:-

	“The scene of the true explanation is as follows:-

		They hope to avoid being compelled to pay 6% ad valorem stamp duty and penalties on a £24 million instrument.  They hope to avoid making extremely embarrassing (for them) disclosures about why the alleged loan was structured in an unprecedented manner, they hope to achieve in legal proceedings in Cyprus in substance the redress they now are seeking from this honourable Court and most importantly they wanted to completely suppress from public gaze the role of Gemon Limited in the entire affair.”
	
	The affidavit then continues with several paragraphs about lack of candour and are basically argumentative and point out that the claim originally vested entirely in 
Mr. Goodman and there was an assignment to Gemon which was under Mr. Goodman's control and questions why was Gemon's existence in the assignment not disclosed in the original summons and grounding affidavits?  Moreover very substantial stamp duty would have had to be paid on the alleged assignment.  He also argues about a principal and undisclosed agents and argues that if he gave a promissory note to repay Mr. Goodman there cannot be an undisclosed principal to a promissory note transaction under the Bills of Exchange Act.  His affidavit deals with, in an argumentative way, the history of 
Mr. Goodman's companies.  He refers to a report of the “Beef Tribunal”.
	This Court has been very concerned about the proceedings in PAPHOS.  Beyond the faxed copy of alleged statement of claim filed in PAPHOS very little information was provided by either side.  The Court is gravely concerned that it might come to a different conclusion than that of the Cypriot Court.  Alleged monies are apparently frozen in a Cypriot bank.  It is eminently desirable that the same course of action should not be pursued simultaneously in two separate jurisdictions.  
	The borrowers agreed to lend Mr. Kenny money.  However he states that the money was never received by him.  He added that the money was not released into his control but apparently into the control of a South African Cypriot who spirited the money away.  It was eventually traced to a bank account in his father's name in the Bank of Cyprus in PAPHOS.  He  alleges that it came before this Court on the 5th May, 1995 and was adjourned.  The Plaintiffs decided rather than move swiftly and attempt to obtain judgment against him to dislodge him from the Cyprus proceedings.  He was advised by his Cypriot lawyer that on the 9th June, 1995 an Application was heard in the District Court of PAPHOS.  Mr. Goodman's company sought in effect to remove him from these proceedings and subsequently the matter was resumed in a hearing between the 23rd and 25th April and he states that he is advised that 

	“those three days were a virtual catastrophe for Mr. Goodman and his companies.  For instance Mr. Goodman sought to produce in evidence an assignment from me to Gemon Limited but was met by a stamp duty objection which was upheld.  This matter is now on appeal.  I am advised that the amount of stamp duty it involved  is considerable.  Presumably it was because of these setbacks in Cyprus that Mr. Goodman and his companies once again switched their attentions to this honourable Court last May and sought to continue  prosecuting their application herein for summary judgment”

	However, this Court is satisfied that Mr. Desmond Lemont of L&P Financial Trustees of Ireland Limited dealt with Mr. Tom Walsh of the Plaintiffs and made the arrangement and that it was he nominated the ultimate bank to which the money was transferred.  The Court is satisfied that Mr. Lemont acted as agent for the Defendant.
	Mr. Kenny claims that he was the only person with a locus standi in proceedings of PAPHOS.  Money was put into the name of one Nestor Hadjierodotou and that he has offered his assistance and offered to give evidence and that he co-operated in every respect with Mr. Goodman and his companies in seeking to retrieve that money in consideration inter alia that they would not sue him.  He alleges that in breach of faith and in contravention of that agreement shortly afterwards they commenced these proceedings.  He assigned to Mr. Goodman's companies such right of action as he may have against several Cypriot defendants by deed of the 5th July, 1990 drafted by Mr. Goodman's solicitors in consideration IR £1.00.  The defendant assigned the debt on  interest due thereon to Mr. Goodman's companies.  He also gave Mr. Goodman's company Gemon power of attorney to prosecute  all necessary proceedings in Cyprus in his name.  That instrument dated the 25th June, 1990 recites the consideration given for that power of attorney  as follows:- 

	“In consideration of Gemon Limited withholding the issue of proceedings against Mr. Kenny for the moment (although reserving the right to do so at any time at their discretion).  Mr. Kenny has agreed  to grant this power of attorney.”

	He avers that he subsequently withdrew his co-operation with Mr. Goodman and his companies because he believes they breached faith and were in breach of  the terms of the said agreement and the power of attorney.  That breach was the institution of these present proceedings against the Defendant on the 18th September, 1990 within ten weeks of his          assigning to them a claim worth £24 million for consideration of  £1 and by granting them a power of attorney to prosecute that claim in his name for a consideration that they would not sue him.  He avers:-

	“I therefore say and I am so advised that when these proceedings were instituted on the 18th September, 1990 the then Plaintiffs who owned and controlled Gemon Limited had a solemn sealed contractual agreement with me not to bring these proceedings and therefore were legally debarred from suing me in relation to the alleged loan and the money in Cyprus.

	I have been advised by Counsel that this gives me a complete defence against the Plaintiff's claim herein and that when the Motion for summary judgment herein was issued the Plaintiffs knew full well that they had broken their solemn agreement not to sue me which I say is borne out by the substitute of Gemon and should not be named as one of the Plaintiffs herein”

	He does not accept the averments that Mr. Goodman nor any of his companies were ever involved in money lending and that this was a “one-off” transaction and claims about the way it was “structured” and his need for discovery.
	This Court has amended the pleadings to include all the Plaintiffs listed            .
	Gemon is now a Plaintiff so much of the argument relating to it is now irrelevant.  The undated affidavit of Caroline Preston, solicitor for the  Plaintiffs, dealing with this affidavit of the 4th July, 1996 by Mr. Kenny points out that it contains no evidence which was not available or referred to at the time he swore his original affidavit on the 5th January, 1995 in particular Mr. Kenny notably fails to explain his part in this transaction and his dealings with the other parties and in particular Mr. Kitalides.  She avers as follows:-

	“It remains a striking feature of Mr. Kenny's approach to this case and his latest affidavit that he goes to such lengths to avoid explaining his part in the transactions which gave rise to these proceedings.  He does admit that parties representing him, L&P Financial Services (“L&P”) negotiated the loan of STG £22,830,000 from the Plaintiffs and he does not deny that that loan was advanced and not repaid.  Now, however, for the first time, he seems to suggest that the money was somehow unbeknownst to him diverted into the account of City Project Financiers Limited.  This is manifestly untrue.  Exhibit ‘JOD1’ is the affidavit of John O'Donnell sworn on the 11th January, 1995 herein exhibits the express instructions from L&P (Mr. Kenny's agents who had dealt with every part of this transaction) to the Plaintiffs expressly directing a transfer of the funds to the account of City Projects Financiers Limited.”
4.	“Mr. Kenny now and for the first time suggests that he did not authorise this transfer.  Even if this were true (and I believe it to be manifestly false) I do not believe it can provide an answer to the Plaintiffs' claim herein.  L&P had clear authority from Mr. Kenny to act for them and he himself took no part in this transaction.  Accordingly I believe that they had ostensible authority to give the instructions which they did, and Mr. Kenny is not entitled to raise against the Plaintiffs any lack of authority on their part.  More importantly, I believe that his belated suggestion of lack of authority is simply untrue.  It is absolutely inconsistent with the two documents he relies on in defence of these proceedings, namely, his assignment and power of attorney both of which were executed by him and both of which recite that “Mr. Kenny lent the said sum of STG £22,830,000 to City Project Financiers Limited” and that “City Project Financiers Limited is indebted to Mr. Kenny in the sum of 
	STG £24,000”  If there is any merit in the suggestion that L&P had not acted on Mr. Kenny's instructions and authority in directing the transfer of the funds to the account of City Project Financiers Limited then I would have expected that Mr. Kenny would have raised this in his first affidavit sworn 5th January, 1995.  It is also extraordinary that if this was truly the case that Mr. Kenny has not commenced proceedings against L&P.

	In dealing with the allegation of delay she points out “It is not good defence as it is in aid of the Defendant”.  However, she points out that Mr. Kenny had agreed to co-operate with the Plaintiffs pursuing the monies in Cyprus but that in 1994 he withdrew his power of attorney and sought to intervene in the proceedings in his own right in order to cause difficulty for the Plaintiffs and to seek some personal advantage for himself.  She avers:-	`
	“In those circumstances while Mr. Kenny was actively seeking to hinder the Plaintiffs in the recovery of the proceeds of the loan these proceedings were reactivated.  Subsequently this matter was heard on the 4th May, 1995 and Mr. Kenny raised a number of points including the financial status of certain documents.  To avoid further dispute on this remaining matter the relevant document was submitted for adjudication and was so adjudicated on in February 1996 and is now exhibited in the affidavit of Mr. Goodman.  The motion for judgment was then re-entered.  There was therefore no unexplained delay and I believe nothing constituted a defence entitling the Defendant to avoid judgment”.

	As regards the alleged lack of candour she explains that the immediate aftermath of the discovery that the proceeds of the loan had disappeared a number of proceedings were issued in short order to seek to protect the Plaintiffs' position.  

	“In those circumstances it may be that the issuance of proceedings was not co-ordinated with the creation of any assignment.  In any event I believe that the proceedings were properly constituted in that the monies were advanced by ABP Holdings Limited and that even if Mr. Goodman had any interest in the loan which had been assigned to Gemon that Gemon was entitled to pursue that loan simply in the name of Mr. Goodman or, alternatively, by being joined as a party.  In any event there can be no detriment to Mr. Kenny.  All possible parties as Plaintiffs are now joined in the proceedings for the avoidment of any doubt”

	She also avers:- 

	“the power of attorney to which Mr. Kenny refers is not an agreement or contract whereby Gemon agreed not to sue Mr. Kenny.  She said it is a solemn agreement by Mr. Kenny appointing Gemon his attorney an agreement which Mr. Kenny then revoked.  The power of attorney recited as consideration a temporary forbearance by Gemon to sue Mr. Kenny.  This in itself does not constitute an agreement not to sue in the future and further, in any event, the terms of a power of attorney itself expressly reserved to Gemon that right”.  

As regards the structure of the transaction she states:-

 	“In the first place I believe that the source of the funds for lender is of no concern to the person to whom the loan is made.  In any event the allegation and the innuendo which Mr. Kenny seeks to place upon it is misconceived.  There is no deception of the group's bankers involved in  the obtaining of funds for this loan.  The lending bank, Barclays Bank, was one of the group lenders and was also the parent company of Mercantile Credit which was to provide the security.  It was proposed that the promissory note to be supplied by Mercantile Credit on Mr. Kenny's behalf would be assigned to Barclays.  It was merely this element (the giving of security) which gave rise to concern since all the group's lending was based on the fact that no individual lender was secured.  Accordingly it was decided to advance the monies from ABP through Mr. Goodman as an agent and Barclays Bank was agreeable to advance the monies to ABP Holdings Limited on its usual line of credit.  Indeed, when Mr. Kenny failed to repay the loan and the promissory note provided by him (which was to be delivered from Mercantile to Barclays) transpired not to exist.  ABP promptly repaid Barclays loan.  There was therefore, no deception on the part of the bankers and there is no basis for the wild speculation and innuendo Mr. Kenny seeks to raise.”

	Under the heading “Cyprus proceedings” she avers:-

	“Finally Mr. Kenny seeks to suggest that these proceedings were somehow an improper tactical ploy related to other proceedings in Cyprus.  Again this is simply untrue and in any event, I believe, irrelevant.  It is clear from the title of the Cyprus proceedings referred to by Mr. Kenny himself  that  contrary to the suggestion made in this Affidavit he is not a plaintiff  in his own right.  
	Mr. Kenny suggested in his affidavit that he is already a party to the proceedings is inconsistent with his efforts to intervene in the proceedings, and further, it contradicts the terms of his own affidavit and these proceedings sworn on the 8th February, 1995 in which he states that his Cypriot lawyers were now taking steps to bring proceedings there in his own name and on his behalf against the Defendants, something which should have been unnecessary if Mr. Kenny was, as he now says, already a party to the proceedings.

	Nor do I accept even if it were relevant that the recent proceedings from the 23rd to the 25th April, 1996 were a catastrophe for the Plaintiffs.  Instead I believe that the outcome of these hearing were ultimately a rejection of 
	Mr. Kenny's attempts to intervene in the proceedings.  Quite apart from the power of attorney which Mr. Kenny has revoked (and until yesterday he had never previously suggested that the issue of these proceedings entitled him to do so), Mr. Kenny has himself assigned his debt and interest and the right to bring proceedings to recover to Gemon Limited.  It is, however, a measure of the manner in which Mr. Kenny has approached these proceedings that at one and the same time he appears to have sought to introduce the assignment into evidence in these proceedings and nevertheless object to its introduction in evidence in the Cyprus proceedings.  There is also no sense in which it can be said that the Cyprus proceedings involved the issues which arise here.  Instead the Cyprus proceedings involved the transactions which occurred in respect of the money after it had been advanced to Mr. Kenny and indeed proceed on the assumption that Mr. Kenny is indebted to the Plaintiffs herein.  Mr. Kenny seems to suggest that a judgment is obtained by the Plaintiffs in Cyprus that will render these proceedings unnecessary.  This is not correct.  While certain of the monies advanced to Mr. Kenny were traced to Cyprus there is a shortfall which even if the Plaintiffs recover everything in Cyprus would still have to be recovered.  In any event I do not understand how Mr. Kenny can seriously suggest that the existence of  the Cyprus proceedings and the possibility of recovery of judgment by the Plaintiffs against the Cypriot Defendants can in any way be relevant as a defence to these proceedings particularly when Mr. Kenny is devoting his energies in Cyprus to seeking to prevent, obstruct and delay the Plaintiffs obtaining judgment in Cyprus.”

	Mr. Kenny brought an application against the Revenue Commissioners and as notice parties Laurence J. Goodman and Gemon Limited.  The matter came before the President of the High Court, Mr. Justice Costello.  He delivered judgment on the 24th June, 1996.  In those proceedings the Defendant herein applied for a  judicial review on the grounds that various documents on which the Revenue Commissioners adjudicated were erroneous.  He maintained that the proper amount (including penalties) should have been £3 million not £10.  The Honourable President held that Mr. Kenny as a taxpayer has no "locus standi" to challenge administrative decisions including adjudication made by the Revenue Commissioners relating to the duties and tax payable by another taxpayer.  The President went on to point out that judicial review is discretionary and that under the determination of judicial review proceedings could delay the present proceedings by at least two years and, perhaps, a lot more.  When the matter came before me at the beginning of July I was informed by Counsel for the Defendant that he required an adjournment until Michaelmas.  The Court pointed out that this matter only involved one issue.  Was the Defendant indebted to the Plaintiffs in the sum claimed.
	The Court refused to grant the adjournment and pointed out that there had been protracted proceedings in the Court as long ago as May of 1995.  The Court stated it would receive any written submissions and supporting authorities on or before the 22nd July and the Court intended to deal with the matter this term.  On the 22nd July the matter came into the list.  Counsel for the Defendant maintained that it would not be possible for him to present his arguments and submissions and he would have to have an adjournment.  When the Court refused to grant the adjournment Counsel for the Defendant there and then produced a submission and an Affidavit and a list of authorities.  The Court reserved its decision.  
Mr. Kenny's final Affidavit of the 19th July refers to Ms. Caroline Preston's Affidavit and submits that most of them are legal submissions and point scoring.  He rejects a number of items in her Affidavit.  He repeats that he has always denied that the loan was advanced to him.  He says that the onus is on the Plaintiffs to prove the authority of L & P Finance and that he did not check the recitals in the Deed of Assignment and Power of Attorney which documents were drafted by the Plaintiff's solicitors.  He also contends that the Court should not grant an Order to deal with the delay.  He gives a different version as to what has been happening in the Cypriot Court.  He alleges that the delays in the Cypriot proceedings have been caused by the Plaintiff's herein attempt to have him effectively removed from these proceedings.  However the Cypriot proceedings seems to devote themselves entirely to the question of what happened to the money when it reached Cyprus, which was long after the contract with which this Court is concerned.  Counsel for the Defendant alleges they have a good defence in the Plaintiff's claim in that one of these proceedings were commenced in flagrant breach of a contract they had made not to sue the Defendant.  The contract to which he refers to alleges that in the contract he concluded the money was Mr. Goodman's and none of the other Plaintiffs can have any locus standi in proceedings apart from Mr. Goodman's lawful heirs and assigns who must prove their title as such.
	Mr. Goodman is a Plaintiff in these proceedings and the Defendant has alleged that it should have been Gemon Limited who should be the Plaintiff.  That company is also a Plaintiff.  There is no substance in this point.   
	He alleges that the money was never received by the Defendant or put under his control.  The Court is satisfied that L & P are the agents of the Defendant and that they gave directions as to where the money was to be placed,  indeed, changed the venue from their initial instructions.  What happened after that time is a matter purely within the knowledge of the Defendant and/or his agents.  If it was not received by him it may have caused dissatisfaction against other parties.  The onus would be on him to proved what happened the money.  The Court is satisfied that the money was given to him, his servant or agent and is not concerned with what happened afterwards.  He then alleges that the first terms of his written contract with Mr. Goodman have not been honoured namely the surrender or cancellation of his security for that loan.  He would appear that in fact such security never in fact was provided.  Therefore it cannot be surrendered or cancelled.  That does not mean if money is lent it cannot be recovered even though the contract provides for a security.
	The final point is relying on the Moneylender's Act.  It will be seen from this one judgment and the Plaintiffs have explained that this was a once off event and there is no evidence beyond suspicion that this is untrue.
	The Defendant does not deny that he sought the loan, he does not deny that it was advanced him although he alleges that it never came under his control. 
	The Plaintiff did what was required of them.  They sent the money to the nominated account which account was nominated by the Defendant's servant or agent.  Or does he allege that the money has ever been repaid.  He admits that the negotiations were carried out between representatives of the Plaintiffs and "separate persons representing?" him and he does not himself suggest that he had any part in the negotiations.  There is no evidence of his servants or agents to contradict the Plaintiff's evidence.  The Court added names under Order 15 Rule 13 of the Rules of the Superior Courts that all parties possibly having a claim to the money are in fact before the Court.  Since the Judicature Act an assignor and an assignee can both sue at law (see Chitty on Contracts 26th Ed. paras 1393, 1394 and see also Wiley Judicature Act, pp 63 to 65.  The Court is not satisfied that there is any substance in the agreement which were preconditions to his liability.  The parties in the transaction meaning the Plaintiffs and the representatives of the Defendant have never suggested that there was any precondition to the advance.  Payment was made into the accounts directed by the persons representing Mr. Kenny.  Mr. Kenny does not contradict or challenge that but in doing so they were not acting on his instruction.  There is no merit in the suggestion that he must get security which would be a precondition to his liability.
	The advance of money is certainly a clear evidence of consideration of the obligation to repay, in the circumstances of this case.  As regards the Moneylender's Act all the evidence contained in paragraph 9 of Mr. John O'Donnell's Affidavit it is clear that this was the first and only time that the Plaintiff made such a loan.  In order to prove the business of moneylending it is necessary to prove some element of system and continuity.  As Hallsbury's Laws of England 3rd Ed.Vol. 27 p8:-

"It is a question of fact in each case whether a person is carrying on the business of moneylending in order to establish that he is carrying on such business it is not sufficient to prove that he has occasionally lent money at a remunerative rate of interest; it is necessary to prove some degree and system of continuity in his moneylending transactions ..."

		See also D'Arcy J. in Great Bullprint Cripps Warburg -v- Cologn Investment 1980 IR 321 at p 339:-

		"I find that at the material times the Plaintiffs were not carrying on the business of moneylenders in this jurisdiction.  The one isolated loan, which is the subject matter of these proceedings, did not constitute them moneylenders for the purposes of the Act of 1900 as amended."

		The Court has also referred to Westpac Banking Corporation -v- Dempsey 1993 3 IR 331.  However it is agreed between the parties that this letter of the 13th of March, 1990 was not a guarantee.  If the Court were to conclude that there was a genuine issue of fact between the parties then the Court must refer this matter to an oral hearing.  The corollary of that proposition is however also true: if the Court concludes that the matters advanced by the Defendant amount to nothing more than an artifice to delay and avoid judgment then it was equally the Court's obligation to give liberty to enter judgment.  It broached this case should be that identified by Sir Robert Megarry in Lady Anne Tannant -v- Associated Newspapers Group Limited (1979) FSR 298 at 308:-

		"The desire to investigate alleged obscurities in the hope that something will turn up on the investigation cannot, separately, or together, amount to sufficient reason for refusing to enter judgment for the Plaintiff do not get to defend by putting forward a case that is all surmise and micawberism ..."

	The Court is satisfied that power to allow cross-examination is a comparatively rare occurrence.  Also, the Defendant now seeks to cross-examine on Affidavits which were not available and sworn in January, 1995 but which were opened to this Court in May, 1995 without the slightest suggestion from the Defendant that he wished to cross-examine them.  I do not think it would be appropriate in view of the decision of the President of the High Court and in the absence of the Revenue Commissioners as a party to review the adjudication of the Revenue Commissioners.  Section 12(5) of the Stamp Act, 1891 provides that documents stamped in accordance with the Revenue Adjudication shall be admissible in evidence.  The Court is satisfied that this money was lent to the Defendant and was to be refunded to the lender.  Accordingly, the Court enters judgment to £22,830,000 in favour of all the Plaintiffs against the Defendants with interest and makes an Order as laid down by the President in Mellohide Products Limited -v- Barry Agencies Limited 
(22nd February 1982)