IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 631(1) OR SECTION 684(1) OF THE COMPANIES ACT 2014 AND IN THE MATTER OF SIXTH IRISH FORESTRY FUND PLC (IN LIQUIDATION) AND THE THIRD FORESTRY GROWTH PLAN PLC (IN LIQUIDATION) BETWEEN LAR SHEERAN, AISLING MURPHY AND RICHARD MULCAHY APPLICANTS AND ALAN FITZPATRICK, AS LIQUIDATOR OF THE SIXTH IRISH FORESTRY FUND PLC (IN LIQUIDATION) AND THE THIRD FORESTRY GROWTH PLAN PLC (IN LIQUIDATION) RESPONDENT JUDGMENT of Mr. Justice David Keane delivered on the 16th July 2021
83. For those reasons, I do not propose to make the order that the applicants seek.
The Judgement is out. Highlights:
"The the liquidator has concluded that all decisions made by the directors, including specifically the decisions to sell the [portfolio companies’] assets prior to the estimated maturity and to wind up [those companies], were appropriate in the circumstances. It is the liquidator’s view that the directors pursued an early exit strategy in the best interests of the preference shareholders with due and careful regard to the challenges faced by the forestry sector. Such a step is not uncommon for a fund of this nature/structure"
"While it is regrettable that your clients’ return on investment was not at the level they had hoped, the prospectuses make very clear that the estimate of returns contained in the prospectuses were projections only based on certain assumptions and were not to be regarded as a forecast of likely returns to investors. Your clients received a return on their investments in excess of the original investment and, therefore, have suffered no loss."
"The applicants have failed to satisfy me that it would be just to permit the inspection they seek because their proposed inspection seems to me to fall on the wrong side of the line between one that would assist them with an existing or intended claim against the directors or promoters, on the one hand, and one that would allow them to fish for evidence to enable them to determine whether they can formulate such a claim, on the other.
"unless there is some real evidence of dishonesty or abuse which only early disclosure can properly reveal and which may, in the absence of such disclosure escape the probing eye of the litigation process and thus possibly all detection, I think the court should be slow to allow a merely prospective litigant to conduct a review of the documents of another party, replacing focussed allegation by a roving inquisition.”