Allied Irish Banks Plc v McQuaid

• Jurisdiction: Ireland
• Judge: Mr. Justice Brian McGovern
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] IEHC 485
• Docket Number: [2016 No. 1920 S.]
• Court: High Court
• Date: 25 July 2017

[2017] IEHC 485

THE HIGH COURT

McGovern J.

[2016 No. 1920 S.]

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

SEAMUS MCQUAID (AND BY ORDER OF 30TH MAY, 2017)

BEN GILROY

AND

CHARLES MCGUINNESS

DEFENDANTS

Banking & Finance – Practice & Procedures – O.44, r. 3 of the Rules of the Superior Courts – Attachment and committal order – Non-compliance with Court order – Criminal contempt – S. 3(1B) of the Criminal Justice (Community Service) Act 1983

Facts: The plaintiff sought leave to apply for an order for the attachment and committal of the defendants for their failure to comply with the order of the Court. The Court had earlier adjourned the hearing in relation to the part of the plaintiff's application alleging that the defendants were guilty of civil contempt. The key issue in the present proceedings related to the part of assertion wherein it was alleged that the second named defendant had been guilty of criminal contempt on the basis of contents of his affidavit. The second named defendant admitted criminal contempt on his part, and apologised and withdrew the said parts from his affidavit.

Mr. Justice Brian McGovern held that the second named defendant was guilty of criminal contempt. The Court noted that it was necessary to put a restrain on the second named defendant as he had made very outrageous remarks against the Court, which would bring ill-repute to the administration of justice. The Court, however, held that the second named defendant had admitted his liability and apologised. The Court observed that the appropriate punishment for the second named defendant was to make a community service order pursuant to the provisions of the Criminal Justice(Community Service) Act 1983, as amended by the Criminal Justice (Community Service) (Amendment) Act 2011. The Court directed the probation office to prepare an assessment report and adjourned the mater for consideration of the content of the report. The Court held that it should have been cautious in holding a person in contempt of the Court.

JUDGMENT of Mr. Justice Brian McGovern delivered on the 25th day of July, 2017.

1 By notice of motion dated 10th July, 2017, the plaintiff ('the bank') seeks, inter alia, an order pursuant to O. 44, r. 3 of the Rules of the Superior Courts for leave to issue an order for the attachment and committal of the defendants in these proceedings by reason of their failure to comply with the order of this Court made on 30th May, 2017, as varied by undertakings given to the court by the defendants on 19th June, 2017.

2 This matter came before the court on 17th July, 2017, when the application, insofar as it concerned an assertion that the defendants were guilty of civil contempt, was adjourned in order to permit the defendants to issue a notice of motion seeking liberty to cross examine Mr. Philip Butler who swore an affidavit on behalf of the bank on 8th July, 2017.

3 What remains before the court is an assertion made by the bank that the second named defendant, Mr. Ben Gilroy, is guilty of criminal contempt on account of the content of his affidavit in these proceedings and in response to the application for attachment and committal on 27th June, 2017. The plaintiff, as a party to the proceedings, was entitled to raise the issue of criminal contempt but the court is also entitled, of its own motion, to conduct an inquiry as to whether or not the contents of Mr. Gilroy's affidavit constitute criminal contempt.

4 The criminal contempt issue was adjourned to 21st July, in order to give the second named defendant time to consider the legal authorities which were put before the court on 17th July and to enable him to consider the content of his affidavit. On the 21st July, an application was made, on behalf of Mr. Gilroy, for legal aid and this was granted. The matter came back before the court on the 25th July. Mr. Gilroy has pleaded guilty to criminal contempt arising out of the contents of the affidavit affirmed by him on 27th June, 2017, in these proceedings.

Background

5 By order of the High Court (Haughton J.) dated 2nd February, 2017, the bank obtained judgment against the first named defendant in the sum of €3,256,217.49 together with interest. The court placed a stay on the execution of the judgment for a period of twelve months; however, by order of the High Court (Haughton J.) dated 28th April, 2017, the stay was lifted in circumstances where the first named defendant declined to furnish undertakings as sought by the bank.

6 By order of the High Court (McGovern J.) dated 30th May, 2017, the bank was granted ex parte relief restraining the first named defendant from dissipating his assets below the sum of the judgment obtained by the bank against the first named defendant on 2nd February, 2017. The court also made an order joining Mr. Gilroy and the third named defendant, Mr. Charles McGuinness, as defendants in the proceedings and made other mandatory orders designed to ensure the preservation of the assets of the first named defendant against whom the bank has an unsatisfied judgment.

7 It is not necessary at this stage to consider whether these orders have been complied with since the civil contempt aspect of the application stands adjourned to a later date at which time the court will make a determination having heard the parties in respect of it.

The Affidavit

8 Mr. Gilroy has affirmed an affidavit dated 27th June, 2017, in response to the application for attachment and committal brought by the bank in these proceedings. It is necessary that certain portions of that affidavit be set out in this judgment in order to put the application in context.

9 Paragraph 2 of the affidavit stated:-

'This matter came coram non judice and the principle of nulla poena sine lege should have been observed. The said threats were made in order to compel me to do things and also refrain from doing acts which I am perfectly entitled to do and and (sic) same is a criminal offence under section 9 of the Non-Fatal Offences Against the Person Act 1997 which states:-

"(1) A person who, with a view to compel another to abstain from doing or to do any act which that other has a lawful right to do or to abstain from doing, wrongfully and without lawful authority –

(a) uses violence to or intimidates that other person or a member of the family of the other".' (Emphasis in original).

The remainder of the section is not quoted in the affidavit.

10 Mr. Gilroy explains the context in which he has responded to the motion for attachment and committal in the following terms at para. 3 of his affidavit:-

'Because of the criminal intimidation and threats and the fear of kidnapping and being held somewhere against my will, I will give in to the said threats, the same way I would if a thief put a gun to my head and asked for my wallet, I would just hand over my wallet.'

11 He continued in the followings terms at para. 4:-

'All the said threats which are contra legem have come from persons whom (sic) are members a (sic) semi-secretive society normally wearing wigs or black cloaks and normally believed they have some superior position above all others not part of their society. The greatest trick they use to cloak and hide their criminality is they refer to their society as "a law society" to give it the appearance of respectability. However they do not allow any audio or video recordings at the meetings or hearings when the said criminal threats are being made. At such a meeting or hearing I was threatened recently and when I suggested that these members had no jurisdiction over me, the said superiority complex kicked in, from what it appears to be one of their leaders because he sat above everybody and without reason, explanation or any proof just proffered that he "was satisfied he had jurisdiction over me" (sic) imagine if we all suffered from this superiority complex and then threatened everyone else.'

12 The affidavit then continues at para. 5:-

'The said threats required me to fully inform their society members of what property was transferred from Seamus McQuaid to an irrevocable private contract trust. Some of the property had charges registered in favour of a banking cartel and there is an undeniable link between banking cartels and this semi-secretive society.'

13 Mr. Gilroy then continued to itemise certain properties and assets said to have been transferred to the said irrevocable private contract trust. As mentioned previously, the extent to which Mr. Gilroy has complied with the order of this Court for the purposes of the civil contempt application stands adjourned in order to permit the defendants to issue a motion for leave to cross examine, which they have since done. The court is not required at this point to consider the extent of the compliance by the second named defendant to these orders.

14 Mr. Gilroy continues at para. 9:-

'I have given great leeway to all the intimidators in this matter because of their mindset within their organisation they sometimes cannot see the wood for the trees and are never challenged on these matters. However, it must be remembered ignorantia juris non excusat and I will not be as forthcoming or forgiving if any member of their society ever intimidates or threatens me again. I will pursue anyone who intimidates or threatens me again to the full extent of the law.'

15 He continues at para. 10:-

'In the future it may even be necessary for me to bring private criminal prosecutions against any such intimidator or hostis humani generis because of the close relationship between the gardaí and this semi-secretive society.'

16 He continues at para. 11:-

'I furthermore state that I am mindful of the wisdom of Thomas Jefferson when he commented, "[w]e all know that permanent judges acquire an espirt de corps; that, being known, that they are liable to be tempted by bribery; that...