Foley v Bowden

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 23 June 2003
• Neutral Citation: [2003] IESC 38
• Date: 23 June 2003
• Court: Supreme Court
• Docket Number: [S.C. No. 8 of 2003]

[2003] IESC 38

THE SUPREME COURT

Keane C.J.

Denham J.

Geoghegan J.

8/03

FOLEY v. BOWDEN & COMMISSIONER OF AN GARDA SIOCHANA

BETWEEN

MARTIN FOLEY

PLAINTIFF/APPELLANT

AND

CHARLES BOWDEN

DEFENDANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

NOTICE PARTY/RESPONDENT

Abstract:

Practice and procedure - Execution of judgment - Oral examination of debtor - Means of satisfying judgment - Rules of the Superior Courts, 1986 SI 15/1986 Order 42, rule 36

The plaintiff was awarded damages arising out of a gun attack organised by the defendant. The plaintiff's legal advisors were of the view that the defendant was owed sums of money by the State under the witness protection scheme. By notice of motion, the plaintiff sought an order pursuant to o. 42, r. 36 of the Rules of the Superior Courts directing the commissioner to be orally examined in order to ascertain what debts were owed by the State to the defendant.

Held by the Supreme Court (Keane CJ, Denham and Geoghegan JJ) in allowing the appeal and substituting for the order of the High Court an order directing the commissioner to be orally examined in order to ascertain what debts (if any) were owed by the State to the defendant that the plaintiff had a right of access to the courts and a right to be in a position to execute any judgment obtained.

1 23rd day of June 2003, by Keane C.J. [Nem Diss]

2 The facts in this case, the arguments in which have raised some novel and interesting issues, are not to any serious extent in dispute. The plaintiff was shot in the finger and the lung outside his house in Dublin by an unidentified assailant. It is said on his behalf that, in the course of criminal proceedings entitled The People at the Suit of the Director of Public Prosecutions -v- Brian Meehan which were heard by the Special Criminal Court in July 1999, the defendant in the present proceedings admitted under oath that he provided the weapon and instructed an unidentified person to carry out this attack. These proceedings were then instituted by the plaintiff against the defendant claiming damages for personal injuries sustained by him as a result of what he asserted to be the negligence, breach of duty, breach of statutory duty and breach of his constitutional rights by the defendant. On the 22 ^nd July 1999 the plenary summons was served personally on the defendant who was at that time serving a term of imprisonment in Arbour Hill Prison. A statement of claim was subsequently delivered on 1 ^st December 1999. The plaintiff having obtained judgment in the High Court in default of appearance against the defendant on 13 ^th December 1999, the damages were subsequently assessed by Kinlen J who awarded the plaintiff the sum of £120,000 (€152,368.57) on 15 ^th November 2000. The costs of the action were taxed on 23 ^rd February 2001 in the sum of £31,978.85 (€40,604.77). There is, accordingly, a sum of £151,978.85 (€192,973.33) now owing to the plaintiff on foot of the judgment.

3 It is also not in dispute that the defendant is a participant in what is known as a "witness protection scheme". Under the scheme, he has been relocated abroad, in return for giving evidence for the prosecution in criminal proceedings arising out of the murder of the journalist, Veronica Guerin. The plaintiff's legal advisors were of the view that since there was at least a possibility that he was owed sums of money by the State under the scheme, an application for a garnishee order should be made so as to secure the attachment of debts owed by the State to the defendant.

4 With a view to bringing such an application, the notice of motion which is the subject of the present appeal was served on the Notice Party (hereafter "the Commissioner"). In the notice of motion, the plaintiff sought an order pursuant to Order 42, Rule 36 of the Rules of the Superior Courts directing that the Commissioner - or such other person as the court might consider appropriate - be orally examined in order to ascertain what debts are owed by the State to the defendant.

5 The notice of motion was grounded on an affidavit by the solicitor for the plaintiff in which he deposed that the plaintiff was now unable to execute the judgment against the defendant. He further deposed that there was at least a probability that the State had entered into a contractual arrangement with the defendant which provided for the continuing payment of sums of money by way of maintenance payments to the defendant and that the agreement included a term providing for the granting of an indemnity by the State to the defendant in respect of his existing liabilities. He further deposed that, although he had written on a number of occasions to the Chief State Solicitor seeking information of this nature, he had received no reply to his letters. No replying affidavit was filed on behalf of the Commissioner. The notice of motion having come on for hearing in the High Court before O'Neill J, he refused the application in a written judgment dated the 4 ^thDecember 2002.

6 In his judgment, the learned High Court judge said that he was satisfied that the examination sought could be carried out without tending to reveal details as to the new identity of, or location of, the defendant. He was, however, also satisfied that even disclosure of so confined a nature as that sought by the plaintiff would be sufficient to give rise to what he described as "a real apprehension" on the part of future participants in the programme...