Donoghue v Judge O'Donoghue
Jurisdiction | Ireland |
Judge | Mr Justice Max Barrett |
Judgment Date | 13 January 2016 |
Neutral Citation | [2016] IEHC 7 |
Docket Number | Record No. 2015/105 JR |
Court | High Court |
Date | 13 January 2016 |
[2016] IEHC 7
THE HIGH COURT
Barrett J.
Record No. 2015/105 JR
Possession & Ownership – Police Property Act 1897 – Forfeiture of property by State – Judicial review – Certiorari – Better title – Breach of fair procedures
Facts: Following the order of the Circuit Court directing the forfeiture of the vehicle alleged to be stolen and in possession of the applicant, to the State, the applicant now sought an order of certiorari for quashing the decision of the Circuit Court and an order of mandamus directing the State to deliver the said vehicle to the applicant, which was seized by the Garda pursuant to s.41 of the Road Traffic Act. The respondents contended that the concerned certificate produced by the applicant from the authorities in the United Kingdom was consistent with but not dispositive of ownership. The applicant contended that in the absence of any superior title of any person claiming the ownership of that vehicle, the applicant was entitled for the possession of the vehicle.
Mr. Justice Max Barrett granted an order of certiorari and thus quashed the decision of the Circuit Court. The Court granted an order of mandamus and directed the State to deliver the possession of the said vehicle to the applicant. The Court held that the decision of the Circuit Court was based on an error of law. The Court observed that the Circuit Court was wrong in making a differentiation between possession and ownership in the present case, when in reality none existed. The Court found that the applicant satisfied the criteria for claiming ownership of the said stolen vehicle as he purchased the vehicle for consideration, maintained registration papers and his title had not been bested by any other person and thus, he had a valid ownership against the world except the true owner.
One thing is certain: the State did not buy the Range Rover. So who has title to it? Bluestone has laid claim to it but cannot prove its title. Mr Donoghue did a trade-in for it but cannot prove his title. So what is to be done? Is the Range Rover to sit in the possession of the State, the one party that certainly did not buy it, until such time as it sees fit to sell it off? The State points to long-ago English precedent which suggests that ownership had to be proven if the Range Rover was to be returned to Mr Donoghue. But what is “ownership”? Is it something unchangeable as stone? Or is it something more fluid? When there are but two parties who claim ownership, does it suffice that one can prove better title than the other? And would this not be especially the case when statute provides a limited period within which an offended party maystill step forward at some future stage and prove that the Range Rover in truth belongs to it?
These proceedings arise out of a District Court appeal brought by Mr Donoghue in the context of an application by Garda Waters pursuant to s.1(1) of the Police Property Act of 1897, an Act of the Westminster Parliament. Section 1(1), so far as relevant, provides as follows:
‘Where any property has come into the possession of the police in connexion with any criminal charge…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.’
On 19th November, 2014, the Circuit Court ordered that aRange Rover Sport motor-car which was the subject of that application should be forfeited to the State. The evidence in salient part was as follows.
Garda Waters gave evidence that he seized the Range Rover from the possession of Mr Donoghue on 16th December, 2013, pursuant to s.41 of the Road Traffic Act. No objection has been made to the power of Garda Waters so to do.
Having seized the Range Rover, Garda Waters raised certain inquiries with his United Kingdom counterparts and was informed that the vehicle had been reported stolen and was believed to be the subject of a hire-purchase agreement involving Santander. In fact, it later transpired that the loans had been sold to Bluestone Portfolio Management (UK) Limited.
There is no suggestion now, nor has there ever been, that Mr Donoghue was in any way involved in the alleged theft of the Range Rover. So how had he come to be in possession of the Range Rover when he was stopped by Garda Waters on 16th December, 2013? In the Circuit Court, Mr Donoghue – a semi-retired car-dealer who still dabbles in the trade – gave evidence that he purchased the Range Rover in Lancashire, England from a Mr Benson on 17th May, 2013, trading in a trio of cars that and handing over a few thousand pounds sterlingby way of consideration. He also produced a UK DVLA certificate issued in February 2014, in which he was registered by the relevant United Kingdom authority as the “keeper” of the Range Rover. (The court understands from the evidence before it that the United Kingdom does not register ownership of a vehicle as such; instead it registers who the “keeper” of the vehicle is, with that person then being responsible for taxing and insuring the vehicle).
After Mr Donoghue's evidence-in-chief, the learned Circuit Court judge asked some questions of him. Counsel for Mr Donoghue then submitted that there was uncontroverted evidence of Mr Donoghue's possessory title to the Range Rover which had not been “bested” by anyone else asserting a superior title, and that the DVLA certificate was consistent with, albeit not dispositive of, ownership. At this point, the Circuit Court judge indicated, over the objections of counsel from Mr Donoghue, that he was adjourning the matter until a future date when (a) he wanted to hear someone from Santander, and (b) he wanted some clarity as to the nature and effect of the DVLA certificate.
On 11th February, 2014, again over the objections of counsel for Mr Donoghue, the Circuit Court heard from a representative of Bluestone, the fact of the loan-sale between Santander and Bluestone having been discovered in the meantime. After hearing from Bluestone, having heard that the DVLA certificate was not dispositive of ownership, and having heard still further submissions from Mr Donoghue's counsel, the learned Circuit Court judge concluded that Mr Donoghue had made out a possessory title to the Range Rover but had not proved his ownership of same. However, he also considered that Bluestone (and indeed Santander) had failed to establish title to the Range Rover. So he orderedthat the Range Rover be forfeited to the State.
Mr Donoghue has instituted the within judicial review proceedings in which he seeks the following reliefs:
(1) an order of certiorari in respect of the order of the learned Circuit Court judge forfeiting the Range Rover to the State;
(2) an order of mandamus directing the State to deliver the Range Rover into the possession of Mr Donoghue;
(3) a declaration that the learned Circuit judge, having found that Mr Donoghue had established possessory title, was obliged to make an order for the delivery up of the Range Rover to Mr Donoghue, in the absence of any other party establishing a superior title;
(4) a declaration that the learned Circuit Court judge, having determined that Mr Donoghue had established possessory title to the Range Rover, erred in law and acted in excess of jurisdiction in directing that the Range Rover be forfeited to the State;
(5) a declaration that the learned Circuit Court judge erred in law and acted in excess of jurisdiction and in breach of fair procedures, in directing of its own motion on 19th November, 2014, that a further witness be called, and thereafter permitting a witness from Bluestone to be heard on 13th February, 2015; and
(6) certain ancillary reliefs.
Mr Donoghue contends that the learned Circuit Court judge erred in law and acted in excess of jurisdiction and in breach of fair procedures, in directing of his own motion on 19th November, 2014, that a further witness be called, and thereafter permitting a witness from Bluestone to be heard on 13th February, 2015. This ground of relief can be dealt with shortly, and, for the reasons stated hereafter, is rejected.
Rule 10, Order 33 of the Circuit Court Rules provides that ‘ The Judge may, if he thinks it expedient in the interests of justice, postpone or adjourn a trial for such time, and upon such terms, if any, as he shall think fit.’ Moreover, it was held by the Irish King's Bench Division in Quinn v. Pratt [1909] 2 I.R. 69 that a court has no jurisdiction to make an order under s.1(1) of the Act of 1897 without the parties interested being present or summoned to court. According toPalles C.B., perhaps the most eminent of Ireland's pre-Independence judges, at 77:
‘As…the second ground on which it was contended that this was a matter in which the Justices had no jurisdiction has been very emphatically argued before us, I do not think that we ought to pass over it...
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