Marley v DPP and Others
| Jurisdiction | Ireland |
| Judge | Mr Justice Rory Mulcahy |
| Judgment Date | 16 May 2023 |
| Neutral Citation | [2023] IEHC 245 |
| Docket Number | Record No.: 2022/2141P |
| Court | High Court |
[2023] IEHC 245
Record No.: 2022/2141P
THE HIGH COURT
Practice & procedure – Crime & sentencing – Application for declaratory reliefs in respect of pending criminal proceedings
Facts: The plaintiff was awaiting trial in the Dublin Circuit Criminal Court on a number of charges relating to an alleged fraudulent procurement registration at the Property Registry Authority. He now applied to the Court for declaratory reliefs in respect of issues he alleged were relevant to the pending criminal trial. The defendants also applied to strike out the claim as having no reasonable prospect of success
Held by the Court, that the plaintiff’s application would be refused, and the proceedings struck out. Having considered Order 19, Rule 28 of the Rules of the Superior Courts and the arguments of the parties, the Court was satisfied that the plaintiff’s pleadings did not disclose any reasonable cause of action.
JUDGMENT of Mr Justice Rory Mulcahy delivered on the 16 th day of May 2023
This judgment concerns three applications. The first two applications are to strike out the Plaintiff's claim in its entirety, one made by the first Defendant and the other by the second and third Defendants. The third application is the Plaintiff's application for judgment in default of defence.
Each of the Defendants' applications are made pursuant to Order 19, Rule 28 of the Rules of the Superior Courts as well as pursuant to the inherent jurisdiction of this Court to strike out claims which have no reasonable prospect of success, are bound to fail or are an abuse of process.
In addition, the first Defendant's motion seeks to have the claim against her struck out pursuant to Order 15, Rule 14 of the Rules of the Superior Courts on the basis that no right of relief exists against her in the proceedings.
In brief terms, the Plaintiff by these proceedings seeks a series of declaratory reliefs in relation to a number of legal issues which he says will be relevant to the defence of criminal proceedings in respect of which he is currently facing trial. The first Defendant says nothing about the merits of the legal arguments but says that they are matters for the trial judge in the criminal proceedings and that the Plaintiff is not entitled to seek to have those legal issues addressed in advance in plenary proceedings seeking declaratory relief. The second and third Defendants raise a similar objection, but also contend that the legal issues raised are without merit and therefore the Plaintiff is, in any event, bound to fail in these proceedings. As fairly acknowledged by counsel for the second and third Defendants, there is a tension created in advancing these two positions, as addressed below.
The Plaintiff argues that he has standing to seek the declarations sought because he faces criminal trial in which the legal questions he raised will be in issue, and that he needs to know in advance what the legal position is as it is a necessary step in preparing a proper defence for the upcoming trial. He says that the issues he raises are at least arguable and therefore the threshold for the exercise of the Court's jurisdiction to strike out proceedings has not been met.
The Plaintiff's motion for judgment in default of defence clearly only arises for consideration if the Defendants' applications are unsuccessful.
As appears from the Plaintiff's Statement of Claim, he is currently awaiting trial before the Dublin Circuit Criminal Court in respect of a number of offences, set out on an indictment, Bill Number DU1527/2021. The indictment contains twenty counts, eight of which relate to the Plaintiff. The Statement of Claim sets out the facts that are alleged. Insofar as the facts alleged are set out in this judgment, this Court reaches no conclusion in relation to them, which will be a matter for the Circuit Criminal Court.
Briefly, it will be alleged that in December 2016, a company called Kent International Holdings (“ Kent International”) entered into a deed of conveyance with SLGI (Holdings) plc (“ SLGI”) for a property in Phibsborough, an office block subject to a lease of 35 years in favour of ADT Limited (“ ADT”). The Deed was lodged with the Registry of Deeds in January 2017.
In April 2017, a solicitor, Mr Herbert Kilcline, applied for first registration of the property on behalf of SLGI. To explain, since 1 June 2011, following the coming into force of the Land and Conveyancing Law Reform Act 2009, all unregistered land in the State is required to be registered in the Land Registry upon the first conveyance or assignment of that land after that date. Where the value of the property is less than €1 million, an applicant for such first registration may avail of the procedure set out in Rule 19(3) of the Land Registration Rules 2012. Where certain conditions are met, this permits registration without investigation of title, based on certification by a solicitor that the title is in order. It is alleged that Mr Kilcline so certified in relation to the Phibsborough property and in November 2017, the Property Registration Authority issued Folio 220572F for the Phibsborough property, confirming SLGI as the full owner of the property.
In early December 2017, a solicitor was engaged by SLGI to negotiate with ADT regarding the surrender of the lease by ADT to SLGI, as legal owner. In March 2018, ADT made two payments to SLGI, one of €21,875 in respect of rent, the other of €246,250 in consideration of the surrender of the lease.
It is alleged that thereafter, agents for Mr Brian O'Riordan and Mr Michael O'Shea contacted agents for ADT querying why rent had not been paid to them as owners of the property. ADT explained that it had surrendered the lease to the registered owner SLGI.
In July 2018, Mr O'Riordan and Mr O'Shea made an application to the High Court pursuant to section 31 of the Registration of Title Act 1964, as amended (“ the 1964 Act”), seeking to set aside the registration of SLGI as owners. In April 2019, the High Court (Owens J) made an Order setting aside the registration (see O'Riordan and O'Shea v SLGI (Holdings) plc and Ors [2019] IEHC 247. SLGI was thus registered as the owner of the property between November 2017 and April 2019. Of note is that when deciding to set aside the registration, the Court expressly refrained from ruling on whether there was any retrospective effect to that Order:
“25. I am not making any finding in relation to whether ADT was entitled to rely on the then registration of the second defendant as the full owner of the superior at the time that the 1987 lease was surrendered by it to the first defendant. That is an issue for another day.”
The criminal proceedings against the Plaintiff concern allegations relating to transactions in respect of two Dublin properties, the one in Phibsborough and another in Ballsbridge. Counts 1 to 6 on the indictment relate to the Phibsborough property, Counts 7 and 8 relate to the property in Ballsbridge. The counts preferred on the indictment are as follows:
Count No. 1
STATEMENT OF OFFENCE
Procuring registration of false deed contrary to section 41 of the Registration of Deeds and Title Act 2006.
PARTICULARS OF OFFENCE
Philip Marley did, on the 20 th of February, 2017 at the Registry of Deeds, the Property Registration Authority, Chancery Street in the county of the city of Dublin, procure the registration of a deed of conveyance and assignment between Kent International Holdings LLC and SLGI (Holdings) PLC dated the 20 th December, 2016, knowing it to be false in a material particular.
Count No. 2
STATEMENT OF OFFENCE
Fraudulent procurement of entry to the register held at the Property Registration Authority contrary to section 119 of the Registration of Title Act 1964 as amended by section 68 of the Registration of Deeds and Title Act 2006.
PARTICULARS OF OFFENCE
Philip Marley did, on a date between the 6 th September, 2016 and the 15 th November, 2017, within the state, fraudulently procure the entry of SLGI (Holdings) PLC as the full owner with absolute title to the property at 113 Phibsborough Road, Dublin 7, contained in Folio DN220572F in the register held at the Property Registration Authority.
Count No. 3
STATEMENT OF OFFENCE
Theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
PARTICULARS OF OFFENCE
Philip Marley did, on or about the 7 th March, 2018, within the state, dishonestly appropriate the sum of €21,875, the property of ADT Limited, without the consent of ADT Ltd. and with the intention of permanently depriving ADT Limited thereof.
Count No. 4
STATEMENT OF OFFENCE
Money laundering contrary to section 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.
PARTICULARS OF OFFENCE
Philip Marley did, on dates between the 7 th March, 2018, and the 14 th March, 2018, both dates inclusive, convert, transfer, handle, acquire, possess or use property within the state that was the proceeds of criminal conduct, to wit the sum of €21,875, knowing, believing or being reckless as to whether or not the property was the proceeds of criminal conduct.
Count No. 5
STATEMENT OF OFFENCE
Theft contrary to section 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
PARTICULARS OF OFFENCE
Philip Marley did, on or about the 15 th March, 2018, within the state, dishonestly appropriate the sum of €246,250 the property of ADT Limited, without the consent of ADT Ltd. and with the intention of permanently depriving ADT Limited thereof.
Count No. 6
STATEMENT OF OFFENCE
Money laundering contrary to section 7 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010.
PARTICULARS OF...
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