McKENNA v H (E)

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 18 July 2001
• Neutral Citation: [2001] IEHC 139
• Court: High Court
• Docket Number: [2001 No. 10513 P],10513p/2001
• Date: 18 July 2001

[2001] IEHC 139

THE HIGH COURT

10513p/2001

McKENNA v. H (E)

IN THE MATTER OF THE COURTS OF JUSTICE ACTS 1924– 1961 AND

THE COURTS (SUPPLEMENTAL PROVISIONS) ACTS 1961–1981 AND

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996 AND

IN THE MATTER OF AN INTENDED ACTION

BETWEEN:

FELIX J McKENNA

PLAINTIFF

AND

EH

DEFENDANT

Citations:

RSC O.11 r1(G)

RSC O.11 r1

PROCEEDS OF CRIME ACT 1996 S2

PROCEEDS OF CRIME ACT 1996 S3

PROCEEDS OF CRIME ACT 1996 S7

PROCEEDS OF CRIME ACT 1996 S7(1)(B)

PROCEEDS OF CRIME ACT 1996 S9

PROCEEDS OF CRIME ACT 1996 S5

CAUDRON V AIR ZAIRE 1986 ILRM 10

TAHER MEATS V STATE COMPANY FOR FOODSTUFF 1991 1 IR 443

MITCHELSTOWN CO-OP V NESTLE 1989 ILRM 582

RSC O.50 r6

ROSLER V HILBERY 1925 1 CH 250

WATSON V DAILY RECORD 1907 1 KB 853

RSC (IRL) 1905 O.11 r1

O'CONNOR V STAR NEWSPAPER CO 30 LRIR 1

AG V DRAPERS 1894 1 IR 185

STUBBS, RE RUSSELL V LE BERT 1896 1 IR 334

JOYNT V M'CRUM 1899 1 IR 217

BURLANDS, RE TRADEMARK BURLAND V BROXBURN OIL CO 1889 IR 542

SHIPSEY V BRITISH & SOUTH AMERICAN STEAM NAVIGATION CO 1936 IR 65

SISKINA V DISTOS COMPANIOR NAVIERA 1979 AC 210

HALSBURYS LAWS OF ENGLAND VOL 37 PARA 1–16

BROWN, STATE V FERAN 1967 IR 147

GILLIGAN V CAB 1998 3 IR 175

JUDICATURE (IRL) ACT 1877

SUPREME COURT OF JUSTICE (IRL) ACT 1897

SUPREME COURT OF JUSTICE (IRL) (NO 2) ACT 1897

COMMON LAW (AMDT) ACT IRELAND 1856

WYLIES JUDICATURE ACTS 73

MEAGHER, GUMMOW & LEHANE EQUITY DOCTRINES AND REMEDIES PARA 2.133

DUCHESS OF ARGYLE V DUKE OF ARGYLE 1967 CH 302

KING V GOUSSETIS 1986 5 NSWL 89

PROCEEDS OF CRIME ACT 1996 S4

CAMPUS OIL LTD V MIN FOR INDUSTRY & ENERGY 1983 IR 82

DPP V HOLLMANN UNREP O'HIGGINS 29.7.1999 1999/8/1821

Synopsis:

PRACTICE AND PROCEDURE

Summons

Service of proceedings outside jurisdiction - Injunction - Proceeds of crime - Oireachtas - Whether statutory injunctions came within ambit of Order 11 rule 1(g) - Whether service of proceedings should be set aside - Rules of the Superior Courts, 1986 SI 15/1986, Order 11 rule 1(g) - Proceeds of Crime Act, 1996 (2001/10513P - Finnegan J - 18/7/01) - [2002] 2 ILRM 117

McKenna v H(E) - [2002] 1 IR 72

Facts: The plaintiff had been granted liberty to serve a plenary summons on the defendant outside the jurisdiction under Order 11 of the Rules of the Superior Courts. The plaintiff was bringing the action under the proceeds of crime legislation. As part of the action an injunction was sought preventing the defendant from dealing or disposing of property. The defendant entered a qualified appearance for the purpose of setting aside the order permitting the service of the summons. The defendant claimed that the service of the proceedings did not come within the permitted categories set out in the Superior Court Rules.

Held by Mr. Justice Finnegan in refusing the application. In the present case the subject matter of the claim was within the jurisdiction and any order which the Court might make was readily enforceable. If a statute conferred jurisdiction upon the Courts it was the duty of the Courts to give effect to the intention of the Oireachtas and any conflict between the provisions of a statute and the rules of procedural law including the Rules of the Superior Courts must be resolved in favour of the former. Order 11 rule 1(g) encompassed statutory injunctions. Even if that were not the case persons resident outside the jurisdiction with assets inside the jurisdiction which represented the proceeds of crime should be subject to the procedures of the Proceeds of Crime Act, 1996. An interim injunction under s.2 and an interlocutory injunction under s.3 of the Proceeds of Crime Act, 1996 did not have the characteristics of mere ancillary relief but rather were sui generis having been created expressly by statute. The Court would if necessary resort to the inherent jurisdiction of the Court in order to give effect to the intent of the Oireachtas. Accordingly the Court refused to set aside the order giving liberty to the plaintiff to serve notice of the plenary summons outside the jurisdiction.

1 JUDGMENT of Mr Justice Finnegan delivered the 18th day of July, 2001

2 By Order made on the 22nd day of June, 2001, I gave liberty to the Plaintiff to issue an originating plenary summons against the Defendant and to serve notice of the same out of the jurisdiction on the Defendant he not being an Irish citizen. On the application I was satisfied that the action falls within the class of action set out in the Rule of the Superior Courts Order 11 Rule 1(g) which provides that service out of the jurisdiction may be allowed by the Court 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."

3 The Defendant entered a qualified appearance for the purposes of challenging jurisdiction and issued a motion claiming several reliefs only one of which now concerns me, namely, an order to set aside my order of the 22nd June, 2001, on the grounds that the action does not fall within the class set out in Order 11 Rule 1(g). It is common case that the action does not fall within any other class of action listed in Order 11 Rule 1.

4 The Plaintiff's claim against the Defendant is brought pursuant to the Proceeds of Crime Act 1996. The plenary summons sets out in the schedule thereto assets in the jurisdiction consisting of sums standing to the credit of bank accounts and 2 policies of assurance. The endorsement of claim reads as follows:-

"The plaintiff's claim is for:-"

1 An order pursuant to section 2 of the Proceeds of Crime Act 1996prohibiting the Defendant/Respondent and any other person having notice of the order from disposing of or otherwise dealing with or diminishing the value of the property described in the schedule hereto or such part thereof as may be specified by this honourable Court.

2 An order pursuant to section 3 of the Proceeds of Crime Act 1996prohibiting the Defendant/Respondent and any other person having notice of the order from disposing of or otherwise dealing with or diminishing the value of the property described in the schedule hereto or such part thereof as may be specified by this honourable Court.

3 An order pursuant to section 7 of the Proceeds of Crime Act 1996appointing a receiver to take possession of the property described in the schedule hereto or such part thereof as may be specified by this honourable Court, together with such directions pursuant to section 7 (1)(b) of that Act as this honourable Court shall deem fit to give.

4 An order pursuant to section 9 of the Proceeds of Crime Act 1996directing the Defendant/Respondent to file an affidavit in the Central Office of the High Court specifying:-

(a) the property of which the Defendant/Respondent is in possession or control; and

(b) the income and sources of the income of the Defendant/Respondent during the past ten years or such period as this honourable Court may specify,

5 5 An order pursuant to section 5 of the Proceeds of Crime Act 1996directing that the whole or if appropriate a specified part of the said property be transferred subject to such terms and conditions as the Court may specify to the Minister for Finance or to such other person as the Court may determine.

6 6 Such further or other relief as to this honourable Court it may appear fit to grant.

7 7 An order providing that the cost of an incidental at these proceedings."

8 In dealing with Order 11 Rule 1(g) O'Floinn's Practice and Procedure in the Superior Courts sets out the law in the following terms:-

9 "" any injunction": The injunction sought must be an injunction necessarily and properly sought in the originating summons as the primary relief and not secondary or ancillary to it: see Caudron .v. Air Zaire [1986] ILRM 10. See also Taher Meats Ltd .v. State Company for Foodstuff Trading and Rafidan Bank [1991] 1 IR 443. Furthermore, the criteria ordinarily applicable to the granting of an injunction (that is, balance of convenience, undertaking as to damages, etc) apply here: see, inter alia, Mitchelstown Co-operative .v. Nestlé [1989] ILRM 582 and the observations at Order 50 Rule 6."

10 The White Book deals with the corresponding provision in England and Wales in the following terms:-

"Even though proceedings may technically fall within this sub rule, discretion to grant leave will not be exercised unless: (1) An injunction is a genuine part of the substantive relief sought and has not been claimed merely to bring the case within the Rule ( Rosler .v. Hilbery [1925] 1 Ch 250 at 261 et seq., CA), and (2) There is a reasonable prospect of an injunction (itself a discretionary remedy) being granted ( Watson .v. Daily Record [1907] 1 KB 853 CA)."

11 Order 11 Rule 1 of the present rules is for present purposes identical to Order 11 Rule 1 in the Rules of the Supreme Court (Ireland) 1905 and the Rules of the Superior Courts 1962: the present rules and the 1962 rules added some classes of action to those listed in the 1905 rules. In relation to the 1905 rules it was held in O'Connor .v. The Star Newspaper Company (Ltd) 30 LR IR. 1 that Order 11 Rule 1 forms a complete and exhaustive specification of the circumstances under which and under which alone service out of the jurisdiction will be allowed. See also AG .v. Drapers Co [1894] 1 IR 185. The granting of an order where those circumstances apply is discretionary.

12 In Re: Stubbs Russell .v. Le Bert [1896] 1 IR 334 the action concerned a trust all the defendants being resident out of the jurisdiction. The trust comprised land within the jurisdiction and personal property outside. The issues in the action were exclusively concerned with an appointment of the personal property. The Lord Chief Justice gave liberty to serve out the...