Criminal Assets Bureau v J.W.P.L.

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 24 May 2007
• Neutral Citation: [2007] IEHC 177
• Date: 24 May 2007
• Court: High Court
• Docket Number: [2006 No. 14 C.A.B.]

[2007] IEHC 177

THE HIGH COURT

[No. 14 C.A.B./2006]

CRIMINAL ASSETS BUREAU (CAB) v JWPL

PROCEEDS OF CRIME

IN THE MATTER OF SECTION 16(B)(4) OF THE PROCEEDS OF CRIME

ACT, 1996

BETWEEN

CRIMINAL ASSETS BUREAU

PLAINTIFF/RESPONDENT

AND

J. W. P. L.

DEFENDANT/APPLICANT

PROCEEDS OF CRIME ACT 1996 S16B(4)

RSC O.11 r1(r)

PROCEEDS OF CRIME ACT 1996 S16B(2)

EEC REG 44/2001

RSC O.11

PROCEEDS OF CRIME (AMDT) ACT 2005 S12

PROCEEDS OF CRIME ACT 1996 S16A

PROCEEDS OF CRIME ACT 1996 S16B

PROCEEDS OF CRIME ACT 1996 S16B(9)

RULES OF THE SUPERIOR COURTS (PROCEEDS OF CRIME & FINANCING OF TERRORISM) 2006 SI 242/2006 PARA 7(1)

RSC O.11(a)

RSC O.136

BRUSSELS CONVENTION 1968 ART 1

BRUSSELS CONVENTION 1968 ART 2

EEC REG 44/2001 ART 25

EEC REG 44/2001 RECITAL 11

NETHERLANDS v RUFFER 1980 ECR 3807

LAYTON, O'MALLEY & MERCER EUROPEAN CIVIL PRACTICE 2ED 2004 345 PARA 12.02

GEMEENTE STEENBERGEN v BATEN 2002 ECR 1-10489

GOFF & JONES LAW OF RESTITUTION 7ED 2007 PARA 1.001

DUBLIN CORPORATION v BUILDING & ALLIED TRADE UNION 1996 1 IR 468 1996 2 ILRM 547 1996 10 3245

GOFF & JONES LAW OF RESTITUTION 7ED 2007 PARA 1.050

AG v BLAKE 2001 1 AC 268

CRIMINAL ASSETS BUREAU ACT 1996

PROCEEDS OF CRIME ACT 1996 S16B(6)(a)

M (MURPHY) v M (G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU (CAB) & ORS 2001 4 IR 113 2003 39 9225

LUFTTRANSPOTUNTERNEHMEN GMBH & CO KG v EUROCONTROL 1976 ECR 01541

SENATOR HANSEATISCHE VERWALTUNGSGESELLSCHAFT MBH & ORS, RE 1996 2 BCLC 562

LECHOURITOU & ORS v DIMOSIO TIS OMOSPONDIAKIS DIMOKRATIAS TIS GERMANIAS (CASE 292/05) UNREP 15.2.2007

CONFLICT OF LAWS

Jurisdiction

Proceeds of crime - Service outside jurisdiction - Conflict of laws - Jurisdiction - Setting aside service - Corrupt enrichment order - Civil and commercial matter - Brussels Regulation - Defendant domiciled abroad - Whether Irish courts had jurisdiction to determine proceedings - Whether proceedings under Proceeds of Crime Act 1996 civil and commercial matter - Whether service to be set aside - Proceeds of Crime Act 1996 (No 30), s 16B(2) - Council Regulation EC/44/2001 - Rules of the Superior Courts 1986 (SI 15/1986), O11, r(1) r. - Rules of the Superior Courts (Proceeds of Crime and Financing of Terrorism) 2006 (SI 242/2006) - Defendant's application dismissed (2006/14CAB - Feeney j - 24/5/2007) [2007] IEHC 177

CAB v JWPL

The plaintiff sought an order pursuant to s. 16(B)(2) of the Proceeds of Crime Act 1996, directing the defendant to pay monies that had allegedly been corruptly enriched. The defendant sought to set aside an order for service on the grounds that the proceedings fell within the scope of the Brussels Regulation. The plaintiff alleged that the proceedings were not a "civil or commercial" matter within the meaning thereof.

Held by Feeney J. that the Court had jurisdiction to entertain the proceedings. The proceedings were not civil or commercial. The CAB was a public body bringing proceedings that a private individual could not bring.

Reporter: E.F.

1 Mr. Justice Feeney delivered on the 24th day of May, 2007.

2 This judgment is circulated in redacted form to avoid identification of the parties

3 2 1.1 On the 26 ^th July, 2006, the High Court made an order pursuant to O. 11 r. 1(r) of the Rules of the Superior Courts granting the plaintiff liberty to serve notice of an originating notice of motion on the then intended defendant, that is the defendant herein, at an address in England. A notice or originating notice of motion in lieu of service was duly made on the defendant out of the jurisdiction by notice dated the 1 ^st August, 2006. A conditional appearance was entered on behalf of the defendant on the 6 ^th October, 2006. The appearance was without prejudice as to jurisdiction and for the purpose of contesting jurisdiction. The defendant brought a notice of motion seeking to set aside the order of the High Court made on the 26 ^th July, 2006.

4 3 1.2 In the proceedings herein the plaintiff seeks an order pursuant to s. 16B(2) of the Proceeds of Crime Act 1996 (as amended) directing the defendant to pay to the Minister for Finance or such other person as the court may specify an amount equivalent to the amount by which the court determines that the defendant has allegedly been corruptly enriched.

5 4 1.3 The basis upon which the defendant seeks to set aside the order for service is based upon a claim that the proceedings herein fall within the scope of Council Regulation (EC) No. 44/2001 of the 22 ^nd December, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels Regulation") and that accordingly these proceedings cannot be commenced within this jurisdiction as the defendant company is domiciled in the United Kingdom. The sole issue for determination by this court is whether service ought to have been effected under O. 11 given the provisions of the Brussels Regulation. The defendant contends that the use or O. 11 was misconceived and that the High Court does not have jurisdiction to entertain the proceedings herein.

6 5 1.4 The plaintiff opposes this application on the basis that the proceedings herein do not constitute a "civil and commercial matter" within the meaning of the Brussels Regulation and that such regulations accordingly have no application to the proceedings and that the High Court's order was properly made pursuant to the provisions of O. 11 of the Rules of the Superior Courts (as amended).

7 6 1.5 Section 12 of the Proceeds of Crime (Amendment) Act 2005 amended the Proceeds of Crime Act 1996 by inserting new sections 16A and 16B in the principal Act. Section 16B(2) provides for a corrupt enrichment order and s. 16B(2) states:

"Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of subsection (5), that a person (a 'defendant') has been corruptly enriched, the Court may make an order (a 'corrupt enrichment order') directing the defendant to pay to the Minister or such other persons as the court may specify an amount equivalent to the amount by which it determines that the defendant has been so enriched."

8 Section 16B(9) provides that:

"The rules of court applicable in civil providing shall apply in relation to proceedings under this section."

9 2 1.6 Paragraph 7(1) of statutory instrument no. 242 of 2006 provides that an application for an order under s. 16B(2) shall be made by originating notice of motion, grounded on an affidavit or affidavits sworn on behalf of the applicant. Order 11 r. 1(r) of the Rules of the Superior Courts provide that, provided that an originating summons is not a summons to which O. 11(a) applies, service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the court wherever "any relief is sought in proceeding commenced in accordance with O. 136 of these rules". Order 136 relates to proceedings under the Proceeds of Crime Acts 1996 and 2005.

10 3 1.7 The Brussels Regulation is a Regulation concerned with the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. The scope of the Brussels Convention is defined in Article 1 thereof, which provides:

"This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue customs or administrative matters."

11 And it is further provided at Article 2:

"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State."

12 The Brussels Regulation provides in section 8 at Article 25 in relation to examination as to jurisdiction and admissibility and imposes a duty on a court to examine jurisdiction of its own motion declining same if it is not ceased of the case under the terms of the Regulation. It is contended by the defendant that under the Brussels Regulation the Irish High Court has no jurisdiction to hear the matter as the proceedings herein are a civil and commercial matter within the scope of provisions of the Regulation.

13 2 1.8 The essential question which this court must address is whether or not the claim herein pursuant to s. 16B(2) of the Proceeds of Crime Act 1996 (as amended) is a civil and commercial matter within the scope and meaning of Article 1 of the Brussels Regulation. This court must consider and determine whether the concept of civil and commercial matters in Article 1 encompasses a claim pursuant to s. 16B(2) of the Proceeds of Crime Act 1996 (as amended).

14 2 2.1 If the Brussels Regulation applies to the proceeding herein it would follow that Article 2 would oblige the defendant to be sued in the national court of the defendant's domicile. The purpose and intent of Article 2 is to ensure that persons domiciled in a Member State shall in civil and commercial matters be sued in the courts of that Members State. Recital 11 of the Brussels Regulation identifies the rational in the following terms, namely:

"The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction."

15 3 2.2 In considering Article 1 the approach to be taken by the court is guided by the judgment of the European Court of Justice in Netherlands v. Ruffer [1980] ECR 3807 (para. 7 and...