McGuinness v McGuinness

• Jurisdiction: Ireland
• Judge: Ms Justice Bolger
• Judgment Date: 08 December 2023
• Neutral Citation: [2023] IEHC 703
• Court: High Court
• Docket Number: [Record No. 2013/3049S]

Between

Mark McGuinness

Plaintiff

and

Aidan McGuinness

Defendant

and

Adrian Greaney

Notice Party

[2023] IEHC 703

[Record No. 2013/3049S]

THE HIGH COURT

Counsel for the plaintiff: Hugh O'Flaherty BL

Counsel for the named garnishee: Richard Downey BL

Counsel for the notice party: Ross Gorman BL

The defendant represented himself.

JUDGMENT ofMs Justice Bolgerdelivered on the 8 ^th day of December 2023.

1 . The plaintiff has applied to make absolute a conditional garnishee order made by this court on 25 January 2021 in proceedings against the defendant who is the plaintiff's father. By order of 27 July 2023 the notice party was permitted to appear to set out the nature and particulars of his claim against the defendant.

Background

2 . There is a difficult and protracted background to these proceedings including separate litigation in which the defendant has made a number of allegations against the notice party and against the solicitor whose firm is named by the plaintiff as the garnishee. Claims have been brought by the defendant against the notice party, one of which was struck out by this court with a costs order against the defendant. The defendant has also brought separate proceedings relating to the commercial transaction which gave rise to the debt which is the subject matter of these garnishee proceedings, in which two cost orders were made against the defendant. The plaintiff in these garnishee proceedings accepts that those costs orders have to be deducted from the monies due to the defendant that he wishes to garnishee. That leaves a balance of approximately €178,000 potentially available for distribution to the defendant.

3 . The monies arise from the implementation of terms of settlement of 20 February 2019 pursuant to which a substantial property was to be sold and 25% of the net proceeds paid to the defendant. It was an express term of that settlement that the net proceeds of sale were to be held on trust by a named co-owner of the property who was to distribute them as soon as practicable following the completion of the sale. The solicitor's firm, named as the garnishee in the within proceedings, had carriage of sale of the property but were not a party to the terms of settlement. The monies are currently in their client account.

4 . Entirely separate to the sale of the property and litigation in relation to it, the notice party is a former solicitor of the defendant who says he is owed monies arising from work done for the defendant in relation to 2013 proceedings. The defendant disputes any monies are owed because those costs have not yet been adjudicated upon. The notice party says the delay in adjudication is because the defendant issued professional negligence proceedings against him, on the same day as the plaintiff issued his proceedings for the debt of which he now seeks payment by way of the garnishee order. The notice party says the professional negligence proceedings against him are devoid of merit and were issued solely to delay adjudication of his costs. Those adjudication proceedings currently stand adjourned since 6 January 2021.

Ex parte application

5 . The plaintiff made an ex parte application to this court on 11 January 2021 seeking a conditional garnishee order. The notice of motion seeks an order over the proceeds of sale “ due to the Defendant as held by the solicitors with carriage of sale”. The affidavit grounding the application refers to a letter of 10 December 2020 sent by the principal of that solicitor's firm to the defendant confirming that the sale had concluded. The defendant wrote back to that solicitor by letter dated 15 December 2020 asking her to lodge his net proceeds of sale with a solicitor to be nominated by his son (the plaintiff in these proceedings) and said if she did not provide that undertaking within seven days, that the “ appropriate injunction proceedings will be issued”. The letter also referred to what the defendant claimed were unaccounted monies and to his intention, if necessary, to bring the matter to the attention of the President of the High Court. The defendant wrote again on 20 December 2020 in which he said he was giving an undertaking to lodge his net proceeds of sale with his son. The plaintiff swore in his grounding affidavit that the solicitor's firm “ is indebted to the Defendant in respect of a debt that was incurred with the jurisdiction of this Honourable Court.”

6 . Following on the making of the garnishee order, the principal of the solicitor's firm named as garnishee therein (hereinafter referred to as ‘the named garnishee’) swore an affidavit in which she said that the firm was not “ a person indebted” to the defendant for any amount and confirmed that the monies remained in the firm's client account to the benefit of the estate of one of the co-owners of the property. Her averment that the firm was not a person indebted to the defendant was not denied by the plaintiff when he responded to the replying affidavit, although he did criticise the named garnishee for not making that objection in open correspondence on receipt of the conditional order of garnishee. He condemned the solicitor's objection as “ an attempt to muddy the waters.” The solicitor swore a further affidavit in which she stated the estate of the co-owner to the property had “ not consented to releasing any monies from any solicitor firm to Mr Mark McGuinness or any other ‘partner’” in circumstances where satisfactory books and accounts had not been provided to show where monies already received were dissipated.

7 . The notice party stated on affidavit that those proceedings are an abuse of process to enable the defendant shield his assets from the notice party's reach. The defendant's response in his affidavit of 26 April 2023 was to make allegations of wrongdoing against the notice party and against the solicitor acting in the sale of the property (which allegations were denied on affidavit by both solicitors) but he did not address the notice party's allegations of an abuse of process. The plaintiff also responded by affidavit denying the allegations of abuse of process made against him and said the dispute between the notice party and the defendant were nothing to do with him. There were many other matters raised and discussed in the affidavits which are not necessary to recount here. Suffice to say that there is a history of serious difficulties between the defendant and...