Rogers and Others v Maloney and Others

• Jurisdiction: Ireland
• Judge: Mr Justice O'Leary
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IEHC 440,[2005] IEHC 433
• Docket Number: Record No 639 JR/2004,Record No. 638JR/2004
• Court: High Court
• Date: 21 December 2005

[2005] IEHC 433

THE HIGH COURT

Record No. 638JR/2004

Rogers v Maloney

BETWEEN

PAUL ROGERS, PATRICK ROGERS AND BARNROE LIMITED

Applicants

AND

GEORGE MALONEY, THE DIRECTOR OF CORPORATE ENFORCEMENT, THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE DIRECTOR OF PUBLIC PROSECUTIONS AND DISTRICT JUDGE GEOFFREY BROWNE

Respondents

COMPANY LAW (AMDT) ACT 2001 S3

RSC O.84 r20(7)

COMPANY LAW ENFORCEMENT ACT 2001 S29

COMPANIES ACT 1990 S19(3)

COMPANIES ACT 1990 S19(4)

COMPANIES ACT 1990 S19(5)

COMPANIES ACT 1990 S19(2)(b)(i)

COMPANIES ACT 1963 S297

COMPANIES ACT 1963 S297(A)

COMPANIES ACT 1990 S242

COMPANIES ACT 1990 S160

COMPANIES ACT 1990 S19(6)

COMPANIES ACT 1990 S20

COMPANY LAW ENFORCEMENT ACT 2001 S30

PRACTICE AND PROCEDURE:

Pleanary hearing

Related proceedings challenging validity of search warrant - Judicial review reliefs not being pursued - Applicant claiming damages for trespass - Whether plenary proceedings more appropriate - Whether oral evidence needed - Whether losses properly particularised - Proceedings remitted to plenary hearing (2004/639JR - O'Leary J - 21/12/2005) [2005] IEHC 440

Rogers v Maloney

Facts: the applicants, in judicial review proceedings brought by them, made a complaint in relation to the validity of a search warrant and the alleged illegal seizure of records and other material and sought damages therefor. It was agreed by all parties that no order of certiorari, mandamus or declarations were required and therefore the only live issue remained in relation to the claim for damages.

Held by O’Leary J in remitting the matter to plenary hearing that, the issue in relation to damages could not be decided in the course of a judicial review as the issues relating to the alleged illegal seizure of documents and equipment were matters which required oral evidence at plenary hearing.

Reporter: P.C.

Mr Justice O'Leary

1 An Order of Certiorari quashing the decision of the first and/or second named respondent to seek from the fifth named respondent through an Officer appointed by the second named respondent a search warrant dated the 10th of June 2004 to enter onto the premises at 4 Kiltalawn Cottages, Blessington, Dublin 24.

2 An Order of Certiorari quashing the decision of the second named respondent to appoint the first named respondent as an officer of the Director of Corporate Enforcement within the meaning of s. 3 of the Company Law (Amendment) Act 2001 pursuant to a decision of the second named respondent dated the 26th of May, 2004.

3 An Order of Certiorari quashing the decision of the fifth named respondent to sign and issue a search warrant authorising Garda Kevin Peake and/or such other persons as the said Garda Peake thought necessary tointer alia enter onto the premises named in the said warrant dated the 10th day of June, 2004, to execute the said warrant in the manner therein provided.

4 An Order of Mandamus compelling the respondents to return forthwith to the applicants all items which have been unlawfully seized and retained by the servants or agents of the second and/or third named respondents

5 An Order of Mandamus compelling the respondents to return forthwith to the applicants all items seized and retained by the servants or agents of the second and/or third named respondents, as set out in the inventory exhibited in the affidavit grounding the within application.

6 An Order of Prohibition prohibiting the first, second, third and fourth named respondents from taking any further steps in the proceedings initiated by the second named respondent herein pursuant to the Company Law Enforcement Act2001.

7 An Order of Prohibition prohibiting the third and/or fourth named respondents from taking any further steps in proceedings against the first applicant entitled the Director of Public Prosecutions at the suit of Garda Kevin Daly and Paul Rogers Charge Sheet No 28413.

8 An Order of Prohibition prohibiting the first, second, third and fourth named respondents from taking any steps to institute any proceedings against the applicants or any of them on foot of any evidence obtained on foot of the said warrant dated the 10th of June, 2004.

9 An Order of Prohibition prohibiting the respondents or any of them from taking copies of any of the documentation or data seized by the servant or agents of the second or third named respondents on the 10th of June, 2004, whether held electronically or otherwise.

10 A Declaration that the powers delegated to the first respondent pursuant to a decision of the second respondent dated the 26th of May, 2004, were limited to the powers specified in the schedule to the said decision.

11 A Declaration that the fifth named respondent did not have any or any proper regard to proper consideration in signing and permitting the issue of the said Warrant based on the information dated the 10th of June, 2004.

12 A Declaration that the search warrant dated the 10th day of June, 2004, was unlawfully obtained.

13 A Declaration that the material information referred to in the warrant related solely to the items specified in the letter of demand dated the 27th of May, 2004 from the respondent.

14 A Declaration that the said warrant on the face of it did not entitle the respondents or any of then to seize and remove from the custody of the applicants any documents or other items which were not material information and/or had not been specified in the letter of demand of the first named respondent dated the 27th of May, 2004.

15 A Declaration that the servants or agents of the third named respondent were not authorised by the search warrant dated the 10th day of June, 2004, or by the Company Law Enforcement Act2001, to remove any computer hardware, lap tops, computer software, CCTV, tapes, or electronic equipment from the premises named on the said warrant.

16 A Declaration that the search warrant dated the 10th of June, 2004, did not entitle the servants or agents acting on behalf of the third named respondent to bring onto and use a camcorder to record the search carried out by the servants or agents of the second and/or third named respondents.

17 A Declaration that the first named respondent acted unreasonably and contrary to the rules of natural and ordinary justice in failing to provide a reasonable time frame for the production of the documents sought by the letter of demand dated the 27th of May, 2004.

18 A Declaration that the first named respondent acted unreasonably and contrary to the rules of natural and ordinary justice in failing to extend the time for the production of the said documentation required, despite a request made in writing by the first named applicant by letter dated the 31st of May, 2004.

19 An Order for discovery of the video of events recorded by a camcorder used by a servant or agent of the third named respondent during the course of the search on the premises named in the warrant dated the 10th June, 2004.

20 A direction pursuant to Order 84 r. 20(7) to the effect that the grant of leave to apply for judicial review shall operate as a stay on the following proceedings:

(a) The proceedings entitled the Director of Public Prosecutions at the suit of Garda Kevin Daly and Paul Rogers Charge Sheet No. 28413 pending the outcome of the within application;

(b) All charges which may be preferred at any time in the future arising out of evidence obtained on foot of the said warrant dated the 10th of June, 2004, pending the outcome of the within proceedings.

21 Damages for trespass, negligence, breach of duty and misfeasance of public office.

22 Any necessary or ancillary orders and/or such further and other order as this Honourable Court deems proper.

23 Costs.

By notice of motion dated 19th August, 2004, the applicants applied for judicial review in the above terms.

The matter came on for hearing before this court on 29th June, 2005. The Court has had the benefit of the following evidence in its consideration of the matter;

1 Affidavit of Paul Rogers dated 23rd July, 2004

2 Affidavit of the first named respondent dated 1st November, 2004.

3 Affidavit of Garda Kevin Peake sworn 19th October, 2004.

4 Affidavit of Garda Jim Clavin sworn 15th October, 2004.

5 Affidavit of Garda Jerry McGroarty sworn 14th December, 2004.

6 Affidavit of Garda Paul Flood sworn 15th December, 2004.

7 Affidavit of Aonghus Dwane sworn 21st December, 2004.

8 Replying affidavits (four in number) of the first named applicant to first named respondent, Jim Clavin, Kevin Peake, and a joint reply to Jerry McGroarty and Paul Flood all dated 3rd May, 2005.

9 Affidavit of second named respondent dated 3rd May, 2005.

10 Affidavit of discovery of Dermot B Morahan dated 6th May, 2005.

11 Affidavit of Sergeant Denis O'Sullivan dated 27th May, 2005.

12 Affidavits of Patrick Rogers two in number dated 24th June, 2005.

13 Affidavit of Ian O'Reilly dated 20th June, 2005.

14 Oral evidence of Garda Kevin Peake on cross-examination on his affidavits.

Judgment was reserved pending a hearing of a related application under the Companies Acts1963– 2003 by the Director of Corporate Enforcement against the first and second named applicants.

Background facts

The first and second named applicants are directors of the third named applicant, a limited liability company. For reasons which are extraneous to this application the third named applicant Company (hereinafter referred to as “the Company”) came to the attention of the second named respondent (hereinafter referred to as “the Director”). The Director concluded that he should delegate his powers requiringinter alia the production of books and records as provided in section 19 of the Companies Act 1990, as substituted by s. 29 of the Company Law Enforcement Act 2001, to the first named respondent.

By instrument dated the 26th May, 2004,...