F. McK. v T.H. and J.H.

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 28 November 2006
• Neutral Citation: [2006] IESC 63
• Date: 28 November 2006
• Court: Supreme Court
• Docket Number: [S.C. No. 343 of 2002 and Nos. 97, 245, & 405 of 2003]

[2006] IESC 63

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

343/02

97/03

245/03

405/03

MCK v H & ANOR

Between:

McK.

Plaintiff/Respondent

and

H. and Anor.

Defendants/Appellants

and

H.

NOTICE PARTY

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

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

MCK (F J) v C (F) & G (M J) 2001 4 IR 521

HENDERSON v HENDERSON 1843 3 HARE 100

CARROLL v LAW SOCIETY OF IRELAND & AG 2003 1 IR 284 2000 1 ILRM 161

A (A) v MEDICAL COUNCIL 2003 4 IR 302 2004 1 ILRM 372

PROCEEDS OF CRIME ACT 1996 S8

CRIMINAL ASSETS BUREAU ACT 1996 S8

CRIMINAL ASSETS BUREAU ACT 1996 S8(5)

CRIMINAL ASSETS BUREAU ACT 1996 S8(7)

HAY v O'GRADY 1992 1 IR 210

MCK v D 2004 2 IR 470 2004 2 ILRM 419

1 JUDGMENT of Mr. Justice Hardiman delivered the 28th day of November, 2006 .

2 These are the appeals of the first and second-named defendants against the Order of the High Court (O'Sullivan J.) made the 7th September, 2001, pursuant to s.3 of the Proceeds of Crime Act, 1996, principally in respect of premises at 67 Seannacloc Tower, Blarney, Co. Cork. The other items to which the s.3 Order related were a motor car and a motor cycle. The appellants also appeal against the order of the High Court (Finnegan P.) on the 26th October, 2001, whereby a receiver with power of sale was appointed over the dwellinghouse pursuant to s.7 of the same Act.

3 It is possible to deal immediately with a number of points. First, Ms. Tracy Homan, wife of Thomas Homan, was made a Notice Party to the proceedings in the High Court but no appeal has been lodged on her behalf. Accordingly no special consideration of her position is necessary here.

4 Secondly, the first and second-named defendants are father and son, Thomas being the son and James the father. The evidence on behalf of the plaintiff in the High Court included evidence of significant criminal activities on the part of Mr. Homan Junior. This gentleman did not himself give evidence or contradict in any way the evidence on behalf of the plaintiff. Nor did he call any other person to give evidence on his behalf. In the receivership proceedings, however, Thomas Homan swore an affidavit in which he denied that he had at any time any beneficial interest in the premises 67 Seannacloc Tower, Blarney, Co. Cork. It would thus appear that he lacks standing personally to appeal the order insofar as it relates to those premises.

5 It is undisputed that the real property at issue here is in the name of the second-named defendant, James Homan, father of Thomas. The premises are subject to a mortgage in his name.

6 At the hearing in the High Court, a garda gave evidence about investigations he had carried out with a director of the Company which had built the house in question. This gentleman said that the contract was signed by James Homan and stage payments were received by cheque from James Homan. However, in the course of the construction project, between December 1998 and July 1999, the builder saw James Homan only four or five times, but saw Thomas on the site about twice a week. At the time of the hearing, Thomas was living in the house with his wife and two children but James was living in his own premises at 21,

7 Kerryhall Road, Fairhill, Co. Cork. The receipts for the stage payments in relation to the construction were found in the premises at Seannacloc together with personal documents of Thomas Homan. It appears that James selected, and paid for in cash, a fireplace now fitted in the house in question. There is a mortgage in the name of James Homan in the sum of £50,000 from the Allied Irish Banks which was used to pay for the building of the house. The repayments were made through an account in the name of James Homan which is funded in cash. It was the evidence of the plaintiff that these payments were in fact funded by Thomas Homan.

8 This case was at hearing in the High Court for a total of nine days. During this time the plaintiff, Chief Superintendent McKenna, Detective Inspector Quilter, Detective Garda Flanagan and Detective Garda McGreevy gave evidence on behalf of the plaintiff and all but Inspector Quilter were cross-examined. Mr. Homan Senior gave evidence on his own behalf. A number of rulings were given by the learned trial judge during and after the hearing. Of particular relevance is the ruling of the 25th April, 2001, in relation to the admissibility of evidence of the plaintiff's belief that the property in issue in the proceedings represented the proceeds of crime. On the 17th May, 2001, the learned trial judge accepted the evidence given for the plaintiff and rejected that of Mr. James Homan, for the reasons given in that ruling.

9 Other rulings were given in the course of the hearing which are less relevant for the purpose of this appeal.

The nature of the s.3 hearing.

10 It is urged on behalf of the appellants that the s.3 hearing in the present case was wrongly treated as an interlocutory hearing. No point was taken on this in the first submissions filed on behalf of the second-named defendant but subsequently further submissions, said to "take precedence" of the first set of submissions were filed in which this point was taken. Reliance was naturally placed on the decision of this Court in Murphy v. G.M. [2001] 1 IR 113. But no point to the effect that the Court was proceeding on a misunderstanding of the nature of the s.3 proceedings was taken during the hearing; in the High Court the topic was never mentioned.

11 The complaints presently made about the consequences of the High Court's understanding of the nature of the proceedings are that the plaintiff was not ordered to deliver a statement of claim; that, accordingly, the defendants had no opportunity to seek particulars and that Mr. Thomas Homan was refused an application for discovery. Accordingly, say the appellants, their right to natural and constitutional justice was breached as was their audi alteram partem rights.

12 The plaintiff's case in McK v. S.M., cited above, proceeded on precisely the same basis as this case did i.e. that the s.3 order was interlocutory in the conventional sense of that term so that, for example, it was unnecessary to deliver a statement of claim. But the respondent in that case challenged that belief and issued a motion to dismiss the plaintiff's action for failure to deliver a statement of claim. The present appellants took no such step. Mr. Thomas Homan equally did not appeal the refusal of his application for an order for discovery, as an applicant similarly unsuccessful did in McK v. F.C. [2001] 4 IR 113.

13 In Murphy v. G.M. [2001] 4 IR 113, the High Court dealt with a very similar complaint as follows:

"The appellants complain that the maxim audi alteram partem was violated because, in the first case, the plaintiff was not ordered to deliver a statement of claim, the appellant was not furnished with particulars of the crimes alleged to be involved and no order for discovery was made. These orders were either made in a proper exercise of the jurisdiction of the High Court or they were not. If they were not, the appropriate course for the appellant to have taken was to appeal to this Court. It accordingly has to be assumed that the orders were made in accordance with the principles of constitutional justice by the High Court judges concerned. In any event, the Court is satisfied that in any case brought under the procedures laid down by the Act the affidavits grounding the interim and interlocutory applications of necessity will indicate to the respondents the nature of the case being made on behalf of the appellant."

14 It appears to me that both of the points made in the passage just quoted apply in the present case as well. The appellants were represented throughout by solicitor and counsel. The transcript of the nine day hearing shows very clearly how minutely assiduous these advisers were in the protection of their clients" interests. The specific point which availed the appellant in McK. v. F., however, was not taken on behalf of the present appellants nor, in fairness, was it taken on behalf of a considerable number of other defendants in CAB proceedings either. But it is not open to a litigant who finds, after he has been unsuccessful in litigation, that he might have done better had a point been urged on his behalf which was not in fact advanced by him or his advisers, to demand a replay, so to speak. If this were permitted then the result of all proceedings would be in a sense contingent and lacking in finality. They would be contingent in the sense that if another litigant urged successfully a point which might have been, but was not, taken in the first hearing, the judgment of that hearing would be open to revision. Since, by definition, the point would not have been argued in the High Court, and could not be argued for the first time on appeal, the case would have to be remitted to the Trial Court, with a further right of appeal. No legal system whose decrees were contingent to that degree would meet the requirements of justice: interest rei publicae ut sit finis litium.

15 The public interest and the interest of individual litigants alike requires that litigation should be conducted as expeditiously as possible and that a person who has been successful in a claim or defence should not (save by the ordinary process of appeal) be harassed by the other party reopening the subject of litigation. In what has become a classic passage, it was said in Henderson v. Henderson [1843] 3 Hare 100, the Court will not normally:

"... permit the same parties to open the same subject of litigation in respect of matter which might have been brought...