T.K. and J.B. v Ireland and Another
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hanna |
| Judgment Date | 15 January 2008 |
| Neutral Citation | [2008] IEHC 25 |
| Court | High Court |
| Date | 15 January 2008 |
[2008] IEHC 25
THE HIGH COURT
BETWEEN
AND
PROCEEDS OF CRIME ACT 1996 S3
PROCEEDS OF CRIME ACT 1996 S2
PROCEEDS OF CRIME ACT 1996 S7
RSC O.60
PROCEEDS OF CRIME ACT 1996 S3(3)
PROCEEDS OF CRIME ACT 1996 S4
M (MURPHY) v M(G) & ORS; GILLIGAN v CRIMINAL ASSETS BUREAU & ORS 2001 4 IR 113
MCK (F) v F(A) & F(J) 2002 1 IR 242 2002 2 ILRM 303
MIN FOR AGRICULTURE v LEIPZIGER 2000 4 IR 32 2001 1 ILRM 519
EIRE CONTINENTAL TRADING CO LTD v CLONMEL FOODS LTD 1955 IR 170
MCK (F) v F (A) & F (J) 2005 2 IR 163
AG v RYANS CAR HIRE LTD 1965 IR 642
MOGUL OF IRELAND LTD v TIPPERARY (NORTH RIDING) CO COUNCIL 1976 IR 260
O'BRIEN v MIRROR GROUP NEWSPAPERS LTD 2001 1 IR 1
HENDERSON v HENDERSON 1843 3 HARE 100
COX v DUBLIN CITY DISTILLERY (NO. 2) 1915 1 IR 345
CARROLL v RYAN & ORS 2003 1 IR 309
A (A) v THE MEDICAL COUNCIL & ORS 2003 4 IR 302
MALOCCO v LAW SOCIETY OF IRELAND 2005/36/7409 2005 IESC 5
A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88 2006/1/11 2006 IEHC 169
DUBLIN CITY COUNCIL v FENNELL 2005 1 IR 604
CONSTITUTIONAL LAW
Staute law
Challenge to constitutionality of legislation - Preliminary issues - Whether pleadings frivolous, vexatious or bound to fail - Whether abuse of process - Whether improper collateral attack upon validity of decision of Supreme Court upholding constitutionality of legislation - Whether improper collateral attack upon validity of decision of Supreme Court in connected proceedings - Whether estoppel by failure to raise claim in previous proceedings - Whether locus standi to challenge legislation - Murphy v GM [2001] 4 IR 113, FMcK v AF [2002] 1 IR 242, Minister for Agriculture v Alte Leipziger AG [2000] 4 IR 32, Eire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170, FMcK v AF [2005] IESC 6, [2005] 2 IR 163, Attorney General v Ryan's Car Hire [1965] IR 642, Mogul v Tipperary [1976] IR 260, Henderson v Henderson (1843) 3 Hare 100, Cox v Dublin Distillery (No 2) [1915] 1 IR 345, Carroll v Ryan [2003] 1 IR 309, AA v Medical Council [2003] 4 IR 302, Law Society v Malocco [2005] IESC 5, (Unrep, SC, 15/12/2005), A v Governor of Arbour Hill [2006] IESC 45, [2006] 4 IR 88 and Dublin City Council v Fennell [2005] IESC 33, [2005] 1 IR 604 considered - Proceeds of Crime Act 1996 (No 30), ss 1 to 4 - Proceedings dismissed (2004/19489P - Hanna J - 15/1/2008) [2008] IEHC 25
K(T) v Ireland
JUDGMENT of Mr. Justice Hanna delivered on the 15th day of January, 2008
This matter involves the determination of certain preliminary issues in a case whose central thrust concerns a challenge to s. 3 of the Proceeds of Crime Act, 1996 as being wanting both in terms of the Constitution and the European Convention on Human Rights. The plaintiffs have previously been engaged in proceedings instituted against them in the High Court pursuant to the said Act and which resulted in the seizure and disposal of certain of their assets.
The relevant parts of the statutory framework appear in the schedule to this judgment.
It is necessary that I set out material milestones in this somewhat protracted dispute.
· - 1 st July, 1997: the Criminal Assets Bureau (hereinafter "the C.A.B.") is granted an ex parte freezing order by the High Court in respect of a dwelling house and a motor vehicle apparently jointly owned by the plaintiffs.
· - 2 nd July, 1997: C.A.B. issue a notice of motion for a freezing order under s. 3 of the Proceeds of Crime Act, 1996 (hereinafter "the Act of 1996") returnable on the 14 th July, 1997.
· - 15 th July, 1997: the plaintiffs enter an appearance requesting delivery of the statement of claim. The plaintiffs claimed that they had difficulty securing legal representation at that time, stating that they were unable to pay the fee required from their preferred solicitor and were told that the Legal Aid Board had a "backlog of work". They did, in fact, retain the services of a solicitor some months later and they have been legally represented since then and have instructed counsel.
· - 16 th July, 1997: the motion is heard and a freezing order granted under s. 3 of the Act of 1996. The plaintiffs issued a notice of motion seeking a statement of claim and an order discharging the s. 2 order of the Act of 1996 that had been made on the 1 st July, 1997.
· - 30 th November, 2001: C.A.B. seek the appointment of a receiver over the property.
· - 7 th December, 2001: a receiver is appointed by the High Court with a stay. By order made the 25 th January, 2002, the stay is extended until 29 th January, 2002.
· - 22 nd February, 2002: C.A.B. delivers a statement of claim seeking the appointment of a receiver under s. 7 of the Act of 1996.
· - 4 th March, 2002: the plaintiffs issue a notice of motion seeking the discharge of the s. 3 order and the dismissal of the proceedings for failure to deliver a statement of claim. The main basis of the challenge is that the s. 3 order was incorrectly made on the basis that it was an interlocutory order.
· - 19 th March, 2002: the motion is refused in the High Court.
· - 22 nd March, 2002: the High Court appoints a receiver over the property and makes a number of consequential orders.
· - 4 th June, 2002: the plaintiffs issue a notice of appeal to the Supreme Court.
· - 5 th July, 2002: the plaintiffs seek an extension of time, from the Supreme Court, to appeal the decision of Moriarty J. granting the s. 3 order.
· - 10 th July, 2002: the plaintiffs issue a notice under Order 60 of the Rules of the Superior Courts, 1986, seeking to join the Attorney General on the basis that the appeal concerned the constitutionality of the legislation.
· - 15 th July, 2002: the Supreme Court, in an ex tempore judgment, refuses the relief sought by the plaintiffs in both applications.
· - 19 th July, 2002: the house, the subject of the freezing order, is auctioned on behalf of the C.A.B.
· - 21 st October, 2002: the High Court approves the sale of the property.
· - 22 nd November, 2002: the plaintiffs issue a notice of motion asking the High Court for an order under s. 3(3) of the Act of 1996 discharging the s. 3 order on the basis that "the section 3 application was truly interlocutory and not in substance the trial of the action".
· - 25 th November, 2002: the High Court refuses the relief sought in the notice of motion.
· - 26 th November, 2004: following the exchange of particulars between the parties, the plaintiffs issue a plenary summons commencing these proceedings.
· - 5 th July, 2005: an order is made under s. 4 of the Act of 1996 and the proceeds from the sale of the house are transferred to the Minister for Finance.
The plaintiffs in the statement of claim delivered on the 1 st December, 2004, seek a declaration that all or all relevant parts of the Proceeds of Crime Act, 1996 are repugnant to the Constitution. They also seek a declaration that all or several parts of the Proceeds of Crime Act, 1996 are incompatible with the European Convention on Human Rights.
A defence to the statement of claim was filed on the 21 st February, 2006. That defence was filed without prejudice to certain issues enumerated at paragraphs 1-5 inclusive and these preliminary issues now fall to be determined by this Court pursuant to an order of O'Sullivan J. made on the 13 th November, 2006.
The issues may be summarised as follows:
(i) That the pleadings are frivolous or vexatious and/or are bound to fail and represent an abuse of process.
(ii) That the pleadings represent an improper collateral attack upon the validity of the decision of the Supreme Court in Murphy v. G.M. [2001] 4 I.R. 113, which upheld the constitutionality of the Proceeds of Crime Act, 1996.
(iii) That the statement of claim is an improper collateral attack on the validity of a decision of the Supreme Court made on the 15 th July, 2002 (see chronology of events).
(iv) That the plaintiffs are estopped by omission, by reason of their failure to raise this claim in previous proceedings in which they have been engaged with the Criminal Assets Bureau.
(v) That, finally, the plaintiffs lack locus standi to challenge any part of the Proceeds of Crime Act, 1996 that is not currently being applied against them.
Although C.A.B. were, obviously, the primary mover in the previous proceedings, if I might so term them, the plaintiffs (then defendants) were far from inactive in taking issue with C.A.B.'s actions and engaged with gusto in the litigation, albeit without professional representation for some months.
The material and significant steps in the proceedings were:
· - An application by Mr. K. and Ms. B. to the High Court on the 4 th March, 2002, seeking: 1) an order discharging the s. 3 order made by the Court on the 16 th July, 1997, appointing a receiver over the property; 2) an order dismissing Mr. Murphy's claim for failure to deliver a statement of claim; 3) dismissal of the plaintiff's proceedings for being statute barred; 4) an order staying or vacating the appointment of the receiver in the proceedings.
· - An appeal by Mr. K. and Ms. B. against the refusal of that application (by notice of appeal dated the 4 th July, 2002) was subsequently dismissed by the Supreme Court.
· - An application, made on the 5 th July, 2002, for an extension of time to appeal against the decision of Moriarty J. to grant the s. 3 order.
· - Service of a notice under Order 60 of the Rules of the Superior Courts joining the Attorney General in the...
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