M (Mf) (Plaintiff) v G (J)

Court:Supreme Court
Judge:GEOGHEGAN J
Judgment Date:13 Apr 2005
Jurisdiction:Ireland
Neutral Citation:[2005] JILL-SC 041301

[2005] JILL-SC 041301

THE SUPREME COURT

Geoghegan J.

Fennelly J.

McCracken J.

No. 253/1999
M.F.M v J.G., G.G., D.G. and T.G.
BETWEEN/
M.F.M
Plaintiff

and

J.G., G.G., D.G. AND T.G.
Defendants
Abstract:

Criminal law - Proceeds of crime - Whether preliminary issue arose - Statement of claim order

This decision concerns sections 3 & 4 of the Proceeds of Crime Act, 1996 involving an appeal against an order of the High Court refusing to direct delivery of statement of claim. Submissions concerned whether the order made under section 3 was a temporary order or final order.

Held by the Supreme Court (Geoghegan J; Fennelly and McCracken FF) allowing the appeal and setting aside the High Court order.

Reporter: BD

1

13th April 2005 by GEOGHEGAN J.

2

The court considered that a preliminary issue did arise and had to be considered in relation to the appeal against the order refusing to direct delivery of a statement of claim. Mr. Burns fairly acknowledges that really the basis now of his appeal for that is that we should not regard Mr. Justice Moriarty's order purporting to be a section 3 order to be in any sense a final one. He is not suggesting now that it was a nullity but that we should not regard it as being a final section 3 order in the sense as now understood following on various judgments of this court. Effectively, the correct analysis of Mr. Burns's argument is that although Mr. Justice Moriarty was intending to make and did make an order under section 3, he was doing so under a misapprehension as to what the legal consequences in the future were of that order. It had been believed within the High Court by practitioners and by judges indeed at that time that the scheme under the Act was that section 3 orders were interlocutory in the traditional sense, pending the trial as it were, of the case which was to be the section 4 hearing, notwithstanding the extraordinary feature under the Act if that were so that the section 4 hearing could not take place for another seven years.

3

The court has given careful consideration to this argument. We understand the point that Mr. Burns is making but we are quite satisfied that it is not a ground for treating Mr. Justice Moriarty's order in fact as being the section 3 order. The earlier order, to which our attention has been drawn by the then President of the High Court, by its very terms was a temporary order and although it may have purported to be made pursuant to...

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