Donoghue v His Honour Judge James O'Donoghue

• Jurisdiction: Ireland
• Judge: the President
• Judgment Date: 14 February 2018
• Neutral Citation: [2018] IECA 26
• Court: Court of Appeal (Ireland)
• Date: 14 February 2018
• Docket Number: [C.A. No. 240 of 2016],Neutral Citation Number: [2018] IECA 26 [2016 No. 240]

BETWEEN

GLEN DONOGHUE

RESPONDENT

AND

HIS HONOUR JUDGE JAMES O'DONOGHUE

AND

IRELAND

AND

THE ATTORNEY GENERAL

APPELLANT

[2018] IECA 26

Neutral Citation Number: [2018] IECA 26

[2016 No. 240]

THE COURT OF APPEAL

Judicial review - Possession - Ownership - Appellants seeking to appeal against High Court orders - Whether High Court was wrong to think that mere possession was sufficient to establish ownership

Facts: The respondent, Mr Donoghue, sought the return of a Range Rover vehicle that was seized by Garda Waters on 16th December 2013. He was refused in the District Court and on appeal to the Circuit Court. Mr Donoghue applied to the High Court for judicial review of the order of the Circuit Court. The High Court quashed the order of the Circuit Court and ordered that the State return the vehicle to Mr Donoghue. The appellants, Ireland and the Attorney General, appealed to the Court of Appeal against the orders of the High Court, submitting that the decision made by the Circuit Court Judge was lawful,intra vires, valid and based on findings and inferences that he made based on the evidence that he heard. Mr Donoghue submitted that the High Court correctly decided the case on the basis that there had been a fundamental error of law going to jurisdiction by the Circuit Court judge in distinguishing between possessory title and ownership, in a context in which no superior title had been established. Furthermore, he submitted that the facts of the case supported his contention that the High Court did not err in its approach.

Held by Ryan P that the High Court was wrong to think that mere possession was sufficient to establish ownership within the meaning of s. 1 of the Police Property Act 1897. Ryan P held that it was inappropriate for the High Court to make an order of mandamus.

Ryan P held that he would allow the appeal, set aside the orders made by the High Court and refuse judicial review.

Appeal allowed.

JUDGMENT of the President delivered on 14th February 2018

Introduction

1 This is an appeal brought by Ireland and the Attorney General against the orders of the High Court that were perfected on 4th May 2016 for reasons that are contained in a judgment delivered by Barrett J. on 13th January 2016. The matter before the High Court was an application by Mr. Glen Donoghue for judicial review of an order of the Circuit Court made on 13th February 2015 in an appeal of a District Court order made pursuant to s. 1(1) of the Police Property Act 1897 ('the 1897 Act'). Mr. Donoghue had sought the return of a Range Rover vehicle that was seized by Garda Enda Waters on 16th December 2013 but he had been refused in the District Court and on appeal to the Circuit Court in circumstances and for reasons that I describe below. The case turns on the interpretation of the 1897 provision and the jurisdiction of the High Court to entertain the application in the circumstances as they obtained and to make the orders that are the subject of appeal.

2 Before proceeding further, I should mention in the interest of accuracy, but which is not something that affects the appeal, a difference between the judgment and the order that followed. In his judgment of January 2016, Barrett J. concluded firstly that he would grant an order of certiorari in respect of the order of the Circuit Court forfeiting the Range Rover to the State and, secondly, an order of mandamus directing the State to return the vehicle to Mr. Donoghue. However, in the order as perfected dated 4th May 2016 the following appears:

'[A]nd in lieu of directing that an Order of Certiorari do issue IT IS ORDERED that the aforesaid Order dated the 13th of February 2015 and all records and entries relating thereto be quashed without further Order

And it is Ordered that the second named Respondent delivered the said vehicle into the possession of the Applicant'

3 I mention also that for obvious reasons I avoid use of the litigation capacities of the parties in the hope of avoiding confusion. Mr. Glen Donoghue was the successful applicant in the High Court who therefore becomes the respondent in this court on appeal. The learned judge and the State parties were the respondents in the High Court but now the State Parties become the appellants. In that situation, the similarity of names is more easily overcome.

4 Mr. Glen Donoghue was in possession of the vehicle when it was seized by Garda Waters pursuant to s. 41 of the Road Traffic Act 1994 because he suspected that Mr Donoghue was driving at a time when he was disqualified. There is no issue as to the lawfulness of the seizure. Garda Waters brought an application under the 1897 Act and Mr. Donoghue applied for the return of the vehicle. However, the District Court and the Circuit Court on appeal were not satisfied that Mr. Donoghue had proved ownership, as they considered was required under the statute. We are concerned with the latter court, which as will be seen, drew a distinction between possession and ownership for the purpose of the Act.

5 The first issue in the appeal is the meaning of 'owner' in s. 1 of the 1897 Act which is as follows:

'1.'(1) Where any property has come into the possession of the police in connexion with any criminal charge or under section sixty-six of the Metropolitan Police Act, 1839, section forty-eight of the Act of the session of the second and third years of Her present Majesty, chapter ninety-four (local), for regulating the police in the city of London, section one hundred and three of the Larceny Act, 1861, or section thirty-four of the Pawnbrokers Act, 1872, a court of summary jurisdiction may, on application, either by an officer of police or by a claimant of the property, make an order for the delivery of the property to the person appearing to the magistrate or court to be the owner thereof, or, if the owner cannot be ascertained, make such order with respect to the property as to the magistrate or court may seem meet.

(2) An order under this section shall not affect the right of any person to take within six months from the date of the order legal proceedings against any person in possession of property delivered by virtue of the order for the recovery of the property, but on the expiration of those six months the right shall cease.'

6 The second issue is whether judicial review is available in circumstances where the assertion is that the court made an error in the course of exercising its own undoubted jurisdiction. Obviously, this does not arise if this court is satisfied that the interpretation placed on the section by the Circuit Court Judge was correct.

7 Thirdly, the question is whether mandamus is either an appropriate remedy available to Mr. Donoghue if his argument is correct and, in addition, whether it was open to the High Court to make a definitive ruling as to the vehicle's ownership, whatever the meaning of the term, in a judicial review application.

Background Facts

8 These are the facts that are set out in the statement grounding the application for judicial review and verified by a brief affidavit by Mr. Donoghue. It will be necessary to refer to the affidavit of Garda Waters, the notice party, and also to Mr. Glen Donoghue's response in the form of a replying affidavit thereto. First, I will refer to the facts as set out in the grounding statement.

9 Mr. Donoghue's statement sets out that the police property application came on for hearing before the Circuit Court on 19th November 2014. Garda Waters gave evidence that he seized the vehicle from Mr. Donoghue on 16th December 2013, having stopped Mr. Donoghue on the M4 Lucan bypass. He seized the vehicle pursuant to s. 41 of the Road Traffic Act 1994. There is no issue in the case as to the validity of the seizure. Garda Waters testified that he made enquiries with police in the United Kingdom and was informed that the vehicle had been reported stolen and it was believed to be the subject of a hire purchase agreement involving Santander Bank. The statement says that no evidence was adduced to suggest that Mr. Donoghue had any prior knowledge of these matters and it was not put to him during his evidence that he had any involvement in or knowledge of the theft. There is no dispute about that point. A witness from a debt recovery agency named EuroDebt was tendered in lieu of a witness from Santander, but the judge found that he was not in a position to prove or give evidence regarding the hire purchase agreement. The judge was not satisfied at that stage that there was any evidence of Santander's ownership before the court. That was the evidence adduced on behalf of Garda Waters.

10 Mr. Glen Donoghue gave evidence that he had possession of the vehicle when it was seized from him, a matter about which there is or could be no dispute. He said that he had brought it over from the United Kingdom two weeks prior to the seizure. He produced the UK Driver and Vehicle Licensing Agency Certificate issued in February 2014, showing him to be the keeper of the vehicle. He exhibits a book of relevant documentation with his verifying affidavit. The Certificate does not purport to establish ownership, but merely records the person who is the keeper of the vehicle as registered with the DVLA. Mr. Donoghue testified that he purchased the vehicle on 17th May 2013 in Lancashire from a Mr. Colin Benson, whose address he gave, for part cash and part exchange. He paid Stg. £3,500 and traded in three vehicles; a Mercedes, a Smart car and a BMW. He tendered a receipt and an affidavit from Mr. Benson, but the judge rejected the affidavit. The judge asked certain questions of Mr. Donoghue which he answered. On the closure of the evidence, counsel for Mr. Donoghue submitted that there was uncontroverted evidence of his possessory title to the vehicle which had not been bested by any satisfactory evidence from any third party asserting a...