McGuinness v Commissioner of an Garda Siochana and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr Justice Nolan
• Judgment Date: 29 May 2024
• Neutral Citation: [2024] IEHC 283
• Docket Number: [Record No. 2014/7727P]

Between

Francis McGuinness

Plaintiff

and

The Commissionner of An Garda Siochana, Ireland and The Attorney General

Defendant

[2024] IEHC 283

[Record No. 2014/7727P]

THE HIGH COURT

JUDGMENT of Mr Justice Nolan delivered on the 29 ^th day of May, 2024

1 . The Plaintiff in this action is a businessman who was born in Dublin, but now lives in Newry, County Down. He is the owner of a business premises including a yard at Hillcrest, Cochran, County Dublin.

2 . On the 23 ^rd of August 2014, he alleges that the Defendants unlawfully entered the premises and seized business documents, two envelopes of cash containing both euro and sterling, a cheque book, together with keys for two X5 BMW jeeps and failed to return them. He was never given a copy of the warrant or the information sworn to obtain it. He alleges that there was a conscious and deliberate violation of his constitutional rights to property and good name and accordingly, seeks damages in negligence, breach of duty including statutory duty, breach of constitutional rights, as well as aggravated and exemplary damages. He also seeks orders compelling the return of the items seized.

3 . The Defendants allege that they acted lawfully at all times, were not guilty of trespass and did not take the items allegedly taken, including the envelopes containing cash. They say the raid was not disproportionately excessive by either number or force.

Procedural History

4 . It would be fair to say that the parties to this case are no strangers to each other or the courts. In early October of 2016, an application came before Keane J. in these proceedings, where the Plaintiff sought an order compelling the Defendants to furnish a copy of the sworn information supporting the application made to the District Court for a warrant to search the Plaintiff's premises. He examined the sworn information and concluded that the information was material to an ongoing criminal investigation and that there was a risk that the range and detail of the information could result in the identification of a confidential informant or informants.

5 . The Plaintiff was not happy and appealed to the Court of Appeal which upheld the decision of the High Court.

6 . The final judgement in these proceedings is that of Dignam J. in the case McGuinness v The Commissioner of An Garda Síochána, Ireland and the Attorney General [2023] IEHC 436. The Defendants brought an application to dismiss the Plaintiff's claim for an inordinate and inexcusable delay. By what I might describe as a “ short whisker”, the judge refused to dismiss the case, but, gave directions in relation to the trial of the action. This is the trial of that action.

The Evidence

7 . Mr. Donal Terry, Engineer, gave evidence of attending the premises, located on the Old Dublin Road, within days of the raid at the request of the Plaintiff himself. He took appropriate photographs and measurements and produced a Google photograph of the layout of the yard, which can be described as triangular in shape with the thin part of the yard to the left of the photo and the broad part to the right, which included a house and unkept garden, which was Mr. McGuinness's family home for many years.

8 . He also had photographs of the damaged locks of two large gates, which gave access to the yard. It was clear from the photographs of the gates that the padlocks and pins had been cut through by use of an ultra-high temperature oxy- acetylene torch.

9 . The Plaintiff then gave evidence. On the day of the raid, there was a Polish national on the property employed by a customer who had parked his vehicle in the yard.

10 . The Plaintiff was not on the premises at the time but when he came back, at about 10:00 AM, the gates were open. One of the two sets of gates had been, what he described as “ butchered” by an oxy-acetylene torch. He went to a small portacabin where he discovered that the place had been ransacked and key documents relating to two of his companies, KTV Leasing and Pacific Traders Limited, were missing, as was a cheque book, together with two sets of fob keys and two envelopes of cash.

11 . These were two brown envelopes, being old Dublin Corporation prepaid motor tax envelopes. These contained cash in two denominations. The first was for a customer in Northern Ireland initialed “ JB” (which stood for “ Jelly Baby”, due to the gentleman's girth), contained £2,000. This gentleman was Kevin Donnelly.

12 . The second envelope contained €1,800 and was initialed “ MS”. This was for a customer in Castlebar named Mick Shaw. He had to make up the difference out of his own pocket. He said this was not the first time that money had gone missing after a Garda search.

13 . In relation to the two sets of fob keys that were missing, the Plaintiff confirmed that each set contained three fobs for the two jeeps, which were unregistered having just arrived from Belgium. Therefore, there were six fobs missing.

14 . In cross examination, he confirmed that he had to get replacement keys for them, cut in the UK.

15 . The documentation taken related to the two companies, were in two leather pouches containing books of receipts and sales, bank statements, shipping notes and other associated papers. These were for his accountant in Ilford, London and as a result of not having the documents, he was obliged to pay a fine for late VAT declarations in the UK.

16 . The Plaintiff said that the cheque book missing was in relation to another one of his companies, NMT Mount Trading.

17 . After much correspondence and following the issue of proceedings, he got to examine the warrant. It referred to a vehicle 98 D 55178, which was found at Quinn Packaging, Rathkeenlan, Co. Cavan. He said that there were absolutely no grounds to suspect him of anything connected with that vehicle.

18 . He said the man on the premise was a Polish national employed by Raymond Coghlan, called Pavel, who has since died. He said that no warrant was ever shown to that person as far as he was aware.

19 . It was only near the end of his evidence in chief that reference was made to his brother, Cyril McGuinness, from whom he was estranged. He believed that this was the driving force behind the raid and the other difficulties which he had with the Defendants. He acknowledged there was bad blood between himself and the Gardaí.

20 . He said Cyril McGuinness was a close confidant and friend of Sean Quinn, the former managing director, chairman and principal shareholder of the Quinn Direct empire which spectacularly imploded in 2008. The Plaintiff confirmed that Cyril McGuinness was the subject of a lot of Garda attention, prior to his death in November of 2019.

21 . The Plaintiff was then cross examined. It is fair to say that the cross examination did not go well and highlighted significant deficiencies in his recollection of what were important matters in the context of this litigation.

22 . In relation to the fine imposed, he confirmed that that his company, Pacific Traders, had paid the fine, but since he was the beneficial owner, he felt it had come out of his pocket.

23 . It was put to him that in evidence he had said that the man on the premises was called Pavel, but in his Replies he said the man was named Simon. He said they were one and the same person. He also said in evidence that the gentleman was employed by Raymond Coughlan. Yet, in his Replies, he said that he himself had employed him. He refuted that and said that he never employed drivers.

24 . In relation to the two initialed envelopes, it was put to him that in evidence he said that the envelopes had been brown with postage paid, yet his Replies said that the envelopes were white and that the names of the recipients, namely Mick Shaw and Kevin Donnelly, were on them. The Plaintiff, having been empathic about the matter initially, conceded that he had made a mistake both in regard to the initials and the colour.

25 . He reiterated that he was buying and selling the vehicles in his own name and therefore, the money that was missing was his monies and not that of any of his companies.

26 . When he was asked what his complaint was, he said that he wanted the court to deliver him some satisfaction in relation to the unlawful activities of the Gardaí; cutting down his gates, taking his property and continuously harassing him. He said that the warrant was wrong and that the Gardaí had lied to get it.

27 . He did not believe that there was ever any confidential informant. He said that the Gardaí had made accusations which connected him with the arson attacks at the Quinn properties and that he had no hand, act or part in those attacks.

28 . He was adamant that nothing had ever been returned to his solicitor. Yet, when he was shown a receipt, dated the 12 ^th of September 2014, from his solicitor, showing that nearly everything taken had been returned, he had no explanation.

29 . The Plaintiff described his brother, Cyril McGuinness, as being a person of notoriety and of being somebody who was suspected of being involved in the arson of the Quinn properties. It was put to him that Cyril McGuinness was the mastermind behind the campaign against the former Quinn companies. He said that his brother was friendly with Sean Quinn all of his life and acted as a subcontractor for him and lived on a property once owned by Sean Quinn. However, he was emphatic that he was not or never had been his brother's keeper.

30 . He was adamant that he was subjected to harassment because of this relationship and that in the absence of ever getting Cyril McGuinness, he was always on the side of the Swords Road as the Gardaí's second choice.

31 . He said the cheque book which had been taken was for NMT Mount Trading Limited. He said that this was the cheque book of a customer, Kevin Donnelly, who had left pre-signed cheques for him if he had anything to pay, such...