Shields v The Central Bank of Ireland

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 15 October 2020
• Neutral Citation: [2020] IEHC 518
• Docket Number: [Record No. 2019/565 JR]
• Court: High Court
• Date: 15 October 2020

BETWEEN

LAWRENCE SHIELDS

APPLICANT

AND

THE CENTRAL BANK OF IRELAND

RESPONDENT

[2020] IEHC 518

Barr

[Record No. 2019/565 JR]

THE HIGH COURT

JUDICIAL REVIEW

JUDGMENT of Mr. Justice Barr delivered electronically on the 15th day of October, 2020

Introduction

1 This is an application brought by the respondent for a declaration that the applicant's proceedings herein are moot; together with an order striking out the applicant's proceedings on the same grounds. In the alterative, it seeks an order dismissing the applicant's proceedings on the grounds that they are bound to fail.

2 While it will be necessary to go into the background to these proceedings in some detail later in the judgment, for the purposes of this introductory section, the background to the proceedings can be summarised in the following way: on 19th February, 2019, the applicant submitted an application form seeking the exchange of bank notes to the value of €4,950 (€50 x 51 and €200 x 12), which were in a damaged condition. That application was sent via Bank of Ireland and was received by the respondent on 21st March, 2019. In the application form, the applicant had stated that all the notes were in an envelope that had been put into a fire and the notes were retrieved from the fire. That was the explanation given for the damage to the 63 notes.

3 By letter dated 5th April, 2019, the respondent informed the applicant that they had determined that the notes were intentionally damaged and therefore, the notes were being withheld by the respondent to avoid the return of the bank notes into circulation. The letter further stated that the respondent had reached its decision following assessment, testing and analysis of the bank notes in accordance with the Decision of the European Central Bank of 19th April, 2013 on the denominations, specifications, reproduction, exchange and withdrawal of euro bank notes. Accordingly, the respondent had decided that it was not going to exchange the bank notes which had been submitted by the applicant.

4 Thereafter, there was a series of correspondence passing between the applicant's solicitor and the respondent and latterly with the respondent's solicitor.

5 On 17th May, 2019, the respondent sent a letter indicating that they were going to send the notes for further forensic analysis. By letter dated 16th July, 2019, the applicant furnished further information in relation to the cause of the damage to the bank notes.

6 On 29th July, 2019, the applicant moved his ex parte application seeking relief by way of judicial review against the respondent's decision communicated to him on 5th April, 2019.

7 On 6th November, 2019, the respondent wrote to the applicant, informing him that in light of the further analysis that had been carried out at an independent laboratory, they were in fact going to exchange the bank notes which had been submitted by the applicant.

8 In light of that decision, the respondent has brought the present application seeking to have the proceedings against it struck out on the grounds that as a result of the second decision issued by the respondent on 6th November, 2019, which reversed the decision impugned by the applicant in these proceedings and which gave the applicant all that he was looking for in his original application, the within proceedings had therefore become moot.

9 The applicant resists that application primarily on the basis that in his statement of grounds, he was seeking not only certiorari of the first decision communicated to him on 5th April, 2019, but also orders of mandamus to compel the respondent to provide him with a copy of the report on which it had based its original decision and to provide details of the independent laboratory to which the bank notes had been sent by the respondent for further testing and an order of mandamus directing the respondent to provide the applicant with a sample of the bank notes to allow him to conduct his own independent tests.

10 The applicant also sought a declaration that where the respondent proposed to withhold and decline to exchange monies for value pursuant to the decision of the European Central bank of 19th April, 2013, it had to have regard to the claimant's rights to due process and to the claimant's property rights as protected under the Constitution of Ireland and under European law. In addition, the applicant sought damages for breach of the applicant's rights under the Constitution and under various headings of European law. It was submitted that in light of these reliefs which were sought in the applicant's statement of grounds, it could not be said that all the issues between the parties in these proceedings had become moot as a result of the second decision of the respondent on 6th November, 2019.

11 That is a very short summary of the factual background and the broad issues that arise for determination on this application.

Background

12 As noted above, on 19th February, 2019, the applicant completed an application form seeking the exchange of damaged bank notes to the value of €4,950. In that application form, there was a small box provided for the provision of details of how the notes were damaged. In that box, the applicant wrote as follows:-

“All notes were in an envelope that was put in a fire, notes were retrieved from fire.”

At the foot of the form, the following declaration was made by the applicant: that he was entitled to submit the damaged euro notes for exchange; the damaged currency was not deliberately mutilated, soiled or damaged; the damaged currency did not originate from any illegal activity; all information provided was accurate; the applicant was aware that the Central Bank of Ireland might forward details of the application, including copies of ID received, to other authorities e.g. An Garda Síochána and/or the Revenue Commissioners and that he understood the requirements in relation to exchange of damaged euro notes as set out in that document. That application was signed by the applicant.

13 That application was received by the respondent on 21st March, 2019. By letter dated 5th April, 2019, the respondent refused to exchange the bank notes on the following basis:-

“The Central Bank has determined that the bank notes were intentionally damaged and therefore the bank notes are being withheld by the Bank to avoid the return of the bank notes into circulation.

The Central Bank has reached its decision following assessment, testing and analysis of the bank notes in accordance with Decision of the European Central Bank of 19th April 2013 on the denominations, specifications, reproduction, exchange and withdrawal of euro bank notes.”

14 By letter dated 24th April, 2019, Messrs J.T. Flynn & Co., solicitors, informed the respondent that they were acting for the applicant. They stated that the notes submitted were lawfully within the possession of their client and proper protocol had been followed with a valid provable reason provided for the minor damage to the bank notes. They went on in the letter to state that they were of the opinion that there had been a breach in relation to nondisclosure and that theft had clearly occurred and had been committed by the respondent pursuant to the Criminal Justice (Theft and Fraud Offences) Act, 2001 and, in particular, ss. 6 and 11 thereof. The letter went on to state that the respondent's decision of 5th April, 2019 had caused their client considerable stress and upset, as a result of which he had had to consult with his doctor. The respondent was called upon to immediately refund the sum of €5,000 [sic] to their client and, for that purpose, a particular account was identified. The respondent was further informed that the writer had received instructions to seek a mandatory injunction compelling the respondent to refund the money.

15 By letter dated 3rd May, 2019, Messrs J.T. Flynn & Co. were informed by the respondent that their letter was being given due consideration. They were requested not to take any further steps on foot of same at that time. By further letter dated 14th May, 2019, the respondent informed the applicant's solicitor that the bank had carried out an assessment of the bank notes, including testing via ultraviolet light and microscope analysis and had found no evidence of fire damage. However, the bank's analysis had shown that the damage was consistent with the bank notes having been immersed in a chemical (acid or similar), resulting in: alteration of the condition of the surface of the bank note, attack of a chemical nature (“ strong acid” type) on the edges of the bank note. That letter went on to state that given the contradiction between the applicant's submission regarding how the notes had been damaged and the bank's findings, the bank had sufficient reason to doubt the bona fides of the application. The applicant's solicitor was informed that should his client wish to furnish the bank with further information/submissions in relation to the damage to the bank notes, the respondent would give any such submission due consideration and would reconsider its decision not to exchange the notes in accordance with Article 3(3)(a) of the ECB Decision.

16 By letter dated 16th May, 2019, the applicant's solicitor complained about the content of the respondent's letter of 14th May, 2019 as being somewhat “incredible and not something our client comprehends”. They stated that their client had acted in good faith, had furnished the bank notes and provided an honest explanation of what had occurred to cause the damage. They went on to state that in order for their firm to have a forensic analysis conducted, they required the immediate return of the bank notes.

17 By letter dated 17th May, 2019, the respondent wrote to the applicant's solicitor, stating that the respondent's findings had identified that there was sufficient reason to believe that the notes had...