McK v H

• Jurisdiction: Ireland
• Judge: Mr. Justice Finnegan
• Judgment Date: 12 April 2002
• Neutral Citation: 2002 WJSC-HC 5092
• Court: High Court
• Date: 12 April 2002

2002 WJSC-HC 5092

THE HIGH COURT

No. 10513P/2001

McK v. H

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN

MCK

PLAINTIFF

AND

H

DEFENDANT

Citations:

PROCEEDS OF CRIME ACT 1996 S2(3)

STATUTE OF LIMITATIONS ACT 1957 S11(7)(B)

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S2(5)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S82

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3B)

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1992 S19(3B) (I)

KSK ENTERPRISES LTD V BORD PLEANALA & ORS 1994 2 ILRM 1

MOORE V GADD 1997 TLR 80

KAMAS PROPERTY CO LTD, RE 1989 DCLC 340

WARWICK & WORCESTER RAILWAY CO 1858 27 LJ CH 735

IRISH LAND COMMISSION V DAVIS 1891 27 LRIR 334

RSC O.52 r2

STATUTE OF LIMITATIONS ACT 1957 S11(7)

STATUTE OF LIMITATION ACT 1939 (UK)

HALSBURYS LAWS OF ENGLAND 3D V10 PARA 1023

28 HEN VIII CAP 21

2 GEO 1 CAP 20 S3

10 CHAS I SESS 2 CAP 11

10 CHAS I SESS 2 CAP 12

10 CHAS I SESS 3 CAP 11

11 CHAS I SESS 3 CAP 11

COMMON INFORMERS ACT 1634

17 CHAS I CAP 12 S25

18 CHAS I CAP 12 S25

36 GEO III CAP 25

COMMON LAW PROCEDURE AMDT ACT IRELAND 1853 S20

CIVIL PROCEDURE ACT 1833 S20 (UK)

STATUTE OF LIMITATIONS ACT 1957 PART II

COMMON LAW PROCEDURE AMDT ACT IRELAND 1853 S4

COMMON LAW PROCEDURE AMDT ACT IRELAND 1853 S3

BUCHANAN LTD & ANOR V MCVEY 1954 IR 89

Synopsis:

PRACTICE AND PROCEDURE

Statute of Limitations

Proceeds of Crime - Litigation - Service of proceedings - Statutory interpretation - Whether proceedings statute barred - Whether statutory time limits complied with - Proceeds of Crime Act, 1996 - Statute of Limitations, section 11(7) (2001/10513P Finnegan J - 12/4/2002)

McK v H

Facts: Proceedings had been brought against the defendant under the Proceeds of Crime Act, 1996. The defendant brought the present motion seeking a number of reliefs. The defendant claimed the plaintiff's application had not been brought with the applicable time limit of 21 days from the date of the order already made under the Proceeds of Crime Act, 1996. In addition it was argued that the proceedings were statute barred.

Held by Finnegan J in making the following order. A motion pursuant to section 3 of the Proceeds of Crime Act, 1996 was brought when the same was filed in the Central Office and therefore there had been compliance with the 1996 Act. The provisions of the Statute of Limitations had no application to actions taken under the 1996 Act. The issue relating to whether the alleged crimes were committed outside the jurisdiction and the consequent effect this might have on a possible court order would be deferred to a later date.

1 Judgment of Mr. Justice Finnegandelivered on the 12th day of April 2002

2 This matter comes before me by way of motion by the Defendant seeking the following reliefs-

3 (1) A Declaratory Order confirming that the Interim Order granted herein on 22nd June 2001 Lapsed on or about the 13th July 2001 because no application for an Interlocutory Order was brought on or by thatdate.

4 (2) An Order discharging the Interim Order of 22nd June 2001 for the reasons set out in section 2(3) of the Proceeds of Crime Act 1996viz on the Plaintiffs case the alleged offences (which are denied):

5 (a) were committed more than two years prior to the commencement of these proceedings and accordingly the proceedings are statute barred by section 11(7)(b) of the Statute of Limitations 1957 and

6 (b) not pursued,

7 (c) were committed outside the jurisdiction of the High Court and accordingly do not come within the terms of the said Act,

8 (d) not pursued.

9 (3) Adjourned on consent.

10 (4) Additionally (and without prejudice)

11 (i) not pursued,

12 (ii) an order directing the Plaintiff to supply full particulars of all the alleged offences which the monies frozen are alleged to have derived from inter alia the exact nature of the offence, when and where committed, if committed abroad exactly what legal provisions it is alleged were contravened,

13 (iii) not pursued,

14 (iv) not pursued,

15 (v) not pursued.

16 I propose dealing with each of the issues raised in turn.

17 The First Issue - Whether the application pursuant to the Proceeds of Crime Act 1996section 3 has been brought within the period of 21 days from the date of making of the Order pursuant to the Proceeds of Crime Act 1996section 2.

18 The Proceeds of Crime Act 1996section 2(5) provides as follows-

"2(5) Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 21 days from the date of its making and shall then lapse unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period..."

19 A similar but not identical time limiting provision is contained in the Local Government (Planning and Development) Act 1963section 82 as amended by the Local Government (Planning and Development) Act 1992section 19(3) at subsection (3B) which provides as follows -

"(3B)(a) An application for leave to apply for judicial review under the order in respect of a decision referred to in subsection (3A) of this section shall-"

(i) be made within the period of two months commencing on the date on which the decision is given."

20 This provision was considered by the Supreme Court in KSKEnterprises Limited v An Bord Pleanala & Others [1994] 2 I.L.R.M. 1 the Supreme Court held that because of the importance of notification to the recipient of a planning commission and the planning authorities an application could not be made within two months merely by filing a notice of motion in the court offices, However if within the period of two months from the date of the decision a notice of motion was filed in court and served on the mandatory parties this would constitute compliance with the time limit, The Supreme Court refused to construe the provision as requiring that the application be moved in court within the time limit.

21 There is a significant difference between the Local Government (Planning and Development) Act 1963section 82 where the word used as "made" and the Proceeds of Crime Act 1996section 2(5) where the word used is "brought", There are three possible meanings to be attributed to "brought" -

22 (i) that the motion be issued,

23 (ii) that the motion be issued and served,

24 (iii) that the motion be issued and severed and moved in court.

25 In deciding that the Local Government (Planning and Development) Act 1963section 82 required service the Supreme Court had regard to the importance of notification to the recipient of a planning permission and the planning authorities a consideration which does not apply in...