McK v RM

JurisdictionIreland
CourtHigh Court
Judgment Date12 February 2003
Docket Number[2002 No. 139SP]
Date12 February 2003
F. McK. v. R.M. (Service out of jurisdiction)
In the matter of the Proceeds of Crime Act 1996: F.J. McK.
Plaintiff
and
R.M., K.M., R.M., V.M. and V.M.
Defendants
[2002 No. 139SP]

High Court

Criminal law - Proceeds of crime - Criminal Assets Bureau - Summons - Service out of jurisdiction - Service by member of An Garda Síochána - Time limit - Whether service good - Whether court has jurisdiction to make order for service out of jurisdiction - Whether Act applies to crimes committed outside jurisdiction - Whether Act applies to assets situated within jurisdiction where person entitled to funds is resident outside jurisdiction - Whether proceedings brought within time - Rules of the Superior Courts 1986 (S.I. No. 15) O.11, r. 1(g) - Statute of Limitations 1957 (No. 6) s. 11(7)(b) - Proceeds of Crime Act 1996 (No. 30) ss. 3 and 4.

Order 11, r. 1(g) of the Rules of the Superior Courts 1986 provides that service out of the jurisdiction may be allowed whenever "Any injunction is sought as to anything to be done within the jurisdiction, or any nuisance within the jurisdiction is sought to be prevented or removed, whether damages are or are not sought in respect thereof."

Section 3 of the Proceeds of Crime Act 1996 provides for the granting by a court of interlocutory orders. Section 4 of the Act of 1996 provides for the granting by a court of a disposal order.

Section 11(7)(b) of the Statute of Limitations 1957 provides that "An action to recover any penalty or forfeiture, or sum by way or penalty or forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued."

The second and fifth defendants sought a trial, as a preliminary issue of law, on three points; whether there was power to serve proceedings outside the jurisdiction in general and in particular, service outside the jurisdiction could be effected by a member of An Garda Síochána; whether the Act applied where the defendant resided outside the jurisdiction and the offences relied upon were committed outside the jurisdiction; and whether there was a time limit for bringing proceedings pursuant to the Act.

Held by the High Court (Finnegan P.), in determining the issues, 1, that, in serving the special summons, the garda was performing an act unrelated to his powers and status as a garda and that his capacity to perform the service was not dependent on his possessing such powers or enjoying such status and that the service effected was not invalidated by the fact that the person effecting the service was a member of An Garda Síochána.

2. That, notwithstanding that the relief sought under s. 4 of the Act of 1996 might be a forfeiture and so not within any of the provisions of O. 11, r. 1, the relief sought under s. 3 of the Act of 1996 was a substantive relief to which O. 11, r. 1(g) applied and therefore the court had jurisdiction to make an order for service out of the jurisdiction.

3. That the Act of 1996 applied where the crime was committed abroad.

  • D.P.P. v. Hollmann (Unreported, High Court, O'Higgins J., 29th July, 1999) approved. Murphy v. G.M.[2001] 4 I.R. 113applied.

4. That the Act of 1996 applied to assets which were the proceeds of crime situated within the jurisdiction where the person entitled to the funds was resident out of the jurisdiction.

Re Paramount Airways Ltd. [1993] Ch. 223 approved. Alcock v. Smith [1892] 1 Ch. 238; Cammell v. Sewell (1858) 3 H & N 617; Clare & Co. v. Dresdner Bank [1915] 2 K.B. 576 considered.

5. That s. 11(7)(b) of the Statute of Limitations 1957 applied to actions by common informers or actions for penalties or forfeitures formerly lying at the suit of the Crown and accordingly, did not apply to the Act of 1996.

  • McK. v. H. (Unreported, High Court, Finnegan P., 12th April, 2002) approved.

Cases mentioned in this report:-

Adams v. Batley [1887] 18 Q.B. 625.

Alcock v. Smith [1892] Ch. 238.

Antonelli v. Secetary of State for Trade and Industry [1998] Q.B. 948; [1998] 2 W.L.R. 826; [1998] 1 All E.R. 997.

Ex p. Blain, Re Sawers [(1879) 12 Ch. D. 522

Bonalumi v. Secretary of State [1985] Q.B. 675; [1985] 2 W.L.R. 722; [1985] 1 All E.R. 797.

Cammell v. Sewell 1858 3 H & N 617.

Caudron v. Air Zaire [1985] I.R. 716; [1986] I.L.R.M. 10.

Clare & Co. v. Dresdner Bank [1915] 2 K.B. 576

Connolly v. Leahy [1899] 2 I.R. 344.

Director of Public Prosecutions v. Hollmann (Unreported, High Court, O'Higgins J., 29th July, 1999).

Gilligan v. Criminal Assets Bureau [1998] 3 I.R. 185.

Joynt v. M'Crum [1899] 1 I.R. 217.

F. McK. v. A.F. (Statement of Claim) [2002] 1 I.R. 242; [2002] 2 I.L.R.M. 303.

F. McK. v. H. (Unreported, High Court, Finnegan P., 12th April, 2002).

McKenna v. E.H. [2002] 1 I.R. 72; [2002] I.L.R.M. 117.

Murphy v. G.M. (Unreported, High Court, O'Higgins J., 4th June, 1999).

Murphy v. G.M. [2001] 4 I.R. 113.

In re Ó Laighléis ó laighléis [1960] I.R. 93; (1957) 95 I.L.T.R. 92.

Re Paramount Airways Ltd. [1993] Ch. 223; [1992] 3 W.L.R. 690; [1992] 3 All E.R. 1.

Saunders v. Weil [1982] 2 Q.B. 321.

Thomson v. Clanmorris (Lord) [1900] 1 Ch. 718.

Trial of preliminary issue.

The facts have been summarised in the headnote and are more fully set out in the judgment of Finnegan P., infra.

By special summons dated the 28th March, 2002, the plaintiff sought orders pursuant to ss. 2, 3, 4 and 9 of the Proceeds of Crime Act 1996. The second and fifth defendants sought a trial on certain preliminary issues of law.

The preliminary issues came on for hearing before the High Court (Finnegan P.) on the 15th, 16th and 17th October, 2002.

Cur. adv. vult.

Finnegan P.

12th February, 2003

Pursuant to O. 25 of the Rules of the Superior Courts 1986 this matter comes before me for the determination of the following issues:-

At the hearing counsel for the defendants sought to expand these issues by introducing further issues which he characterised as subsidiary issues. I was satisfied that the said issues were outside those issues which I had permitted to be dealt with by way of preliminary issue and that the plaintiff was not fairly on notice of the same and I accordingly declined to entertain them.

The first issue arises in the following circumstances. By order made on the 27th March, 2002, the plaintiff was given liberty to issue and serve notice of the special summons herein out of the jurisdiction, the defendants being resident in Northern Ireland. By further order of Abbott J. made on the 5th April, 2002, it was ordered that service be effected on the second and fifth defendants at the offices of Ruairi McShane...

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