McK -v- F & ors, McK -v- H, [2005] IESC 6 (2005)

Docket Number:181 & 206/03
Party Name:McK, F & ors, McK -v- H
Judge:Geoghegan J.
 
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THE SUPREME COURT

181/2003Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

McCracken J.

BETWEEN/F. McK.

Plaintiff/Respondent

and

  1. F.

Defendant/Appellantand

J.P.M.F.

Defendant

THE SUPREME COURT

No. 206/03

BETWEEN/F.J. McK.

Plaintiff/Respondentand

E.H.

Defendant/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 23rd day of February 2005

These two appeals raise issues which overlap. They were originally listed for hearing and indeed opened before a court comprising of three judges. When it emerged that attempts were being made to challenge at least one previous judgment of this court, it was decided that the court should be reconstituted into a court of five judges and the appeals were re-entered for hearing before that court. The appeals were then heard before the reconstituted court and I am now delivering a judgment which covers both appeals.

Having carefully read and considered the several sets of submissions filed by both appellant and respondent in each case, I have come to the conclusion that I cannot meaningfully address the several grounds of appeal without first dealing with two underlying matters running through all the written submissions and, indeed, the oral submissions of the respective appellants.

The first is that the decision of this court in the case (rather oddly cited in the Irish Reports as F. McK v. A.F (Statement of Claim) [2002] 1 I.R. 242) was wrong. I delivered a reserved judgment in that case with which Denham J., Murray J. (as he then was) and Hardiman J. agreed. In it I pointed out that despite the contextually unusual use of the expression "interlocutory order" it was perfectly clear on any reading of the Proceeds of Crime Act, 1996 that a proceeding under section 3 of that Act was a quite separate proceeding from a proceeding under section 4. It was wholly wrong to regard a section 4 hearing as in some way the trial of an action originally commenced by a Section 3 Application. Fennelly J. delivered his own judgment but to the same effect.

Although, unfortunately for quite a period the Act was viewed differently in the High Court partly with the encouragement of the parties and probably because the stage was never reached and, indeed, has not still been reached for considering all the ramifications and the precise nature of a Section 4 Application, this need not have happened after the 18th October, 2001 when the former Chief Justice, Keane C.J. delivering the judgment of this court in relation to the constitutionality of the Act of 1996 in Murphy v. G.M. [2001] 4 I.R. 113 at p. 154 of the report said the following:

"As to the claim that the period of seven years which must elapse before a disposal order is made is unduly oppressive, that rests on the misconception that the application for a disposal order can in some sense be equated to the trial of an action in respect of which the legislation earlier provides for interlocutory orders being made. That is clearly not the nature of the scheme provided for in the Act."

That passage and another passage from a judgment of Keane C.J. in a different case are cited in my judgment referred to above. In making these references, I am merely pointing out that before ever F. McK v. A.F (Statement of Claim) was decided the scheme of the Act and in particular the concept that the Section 4 Application was not the trial of an action commenced by a Section 3 Application had been already signposted in earlier judgments.

Although as it has turned out and, indeed, could I think have been anticipated, the use of the expression "interlocutory order" in the 1996 Act given the scheme of the Act was most unfortunate, I do not consider that its use by the Oireachtas or the draftsman was in any way irrational or incorrect in terms of English. It is perfectly obvious that when a Section 3 Order is made it is contemplated by everybody that there will be a further order in the future. Either an aggrieved party will bring an application to have the Section 3 Order discharged and the property thereby unfrozen or, in the course of time, after the seven years have elapsed a Section 4 Application will be brought. In theory, of course, neither event might happen. But that would not be the probability or the anticipation. Only in that sense could the s. 3 Order be considered to have some elements which could be considered of an "interlocutory" nature. However, it is only described as an interlocutory order because, as I have already indicated, of the unfortunate use of that term in the drafting of the Act. Section 1 of the Act states "'Interlocutory Order' means an order under s. 3;" When the Act refers to an "interlocutory order" it means no more and no less than an order pursuant to s. 3, that being the appellation attached by the Act to it. In...

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