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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Burns v. Bank of Ireland & Ors [2005] IEHC 459 (13 December 2005)
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Cite as: [2005] IEHC 459
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Neutral Citation No: [2005] IEHC 459
THE HIGH COURT
JUDICIAL REVIEW
Record No. 2005/2898P
Between/
Robert Burns
Plaintiff
-and-
The Governor and Company of the Bank of Ireland,
Commissioner of an Garda Síochana, Ireland
and the Attorney General
Defendants
-and-
In the matter of the Criminal Justice Act, 1994, (Section
46 (6))
In the matter of the Criminal Justice Act, 1994 (Section
46(6) Regulations, 1996
In the matter of Criminal Proceedings pending before the
Courts of the United States of America against Robert B.
Burns, Jr.
In the matter of a request made on behalf of the Criminal
Division of the United States Department of Justice
Between/
The Minister for Justice, Equality and Law Reform
Applicant
-and-
Robert B. Burns Jr
Respondent
APPROVED JUDGMENT DELIVERED BY MR. JUSTICE T.C. SMYTH ON TUESDAY, 13TH DECEMBER 2005
The two distinct cases but linked cases are the subject of one ruling. Mr. Burns in the titles is a person whose involvement with litigation is not confined to these cases or those set out in the appendix, but to other matter or matters, which time did not permit of a full record. He is a citizen of the United States of America. He was in practice as a Chiropractor. He was involved with the justice system as a litigant in that country and in particular in the State of Virginia. Extradition proceedings in this jurisdiction taken by the Attorney General against Mr. Burns were unsuccessful (unreported judgment of the Supreme Court (6th December 2004 Record No. 06/2004). On the point of law of speciality based on the facts as stated in the case stated from the District Court.
The proceedings before me were in affidavit, they disclose that Mr. Burns has been resident in Ireland since 2001. Between January 2002 and December 2004 he was detained in Cloverhill Prison pending the processing of the extradition application. I apprehend that many of the proceedings set out in theAppendix to this ruling relate to that period and were the subject of several judgments or rulings by Judges O Caoimh, O'Neill, McKechnie and Peart. In the events the Plaintiff avers that he decided, at some unspecified date, to encash a pension policy he had with Monty Life Insurance Company of America. He received €95,890.07 and explained in his affidavit sworn on a date in August 2005 how he came to lodge these monies with the Bank of Ireland and in a later affidavit sworn in August 2005 what his living expenses would likely to be. On foot of that information he proceeded to make an application on 7th September 2005 to Laffoy J. The application to court was necessitated because the Bank of Ireland had received a communication dated 22nd August 2005 from the Garda Bureau of Fraud Investigation directing the bank to refrain from dealing with the account without consent. The tone of the letter was rather ham-fisted, but it discloses a basis for the restraint sought. The bank not unnaturally were concerned with the turn of events but within days of receipt of the letter dated Monday 22nd August they were served with a Notice of Motion dated Thursday 25th August 2005 with the original and supplemental affidavit of Mr. Burns. Theses parties attended before Laffoy, J who made an order granting the Applicant Mr. Burns €4,000 per month out of the funds in the bank. I have spoken to Laffoy, J as I indicated to the parties I would do and I amsatisfied that she was left with a serious deficit of information, through no fault of the bank. The affidavits did not disclose how the Applicant came to be in Ireland and that since his arrival he had at some stage sought asylum or that in the period November 2001 to January 2002 he had under the aegis of a limited liability company (Carysfort Chiropractic Ltd) whose account was with Ulster Bank Ltd, Swords Road, Cloghran, Co. Dublin conducted his affairs with one Owen Davis in such a way that as between the bank account aforesaid and the alleged cashed payments that he eventually issued proceedings for €593,430.16 – I accept that these proceedings (Record No. 2005/1474S) did not issue until 25th October 2005. The existence of these proceedings and in particular the amounts and large sums maybe in cash, was not disclosed to Finnegan, P who dealt with an ex-parte application in proceedings (2005/96MCA) on 25th November 2005. There is no explanation as to how a person in prison who was allegedly due over half a million Euro was seeking legal aid in the form of the Attorney General's Scheme and in his asylum application availing of the Refugee Legal Services. In fact while the Applicant Mr. Burns was in Cloverhill Prison he began his application for asylum on 10th January 2003 (Record No. 2005/27JR Robert Burns –v- MJELR) on an affidavit sworn on 14th July 2005, neither Finnegan, P nor Laffoy, J appear to have been appraised of these proceedings. As at14/1/2005 and 25/8/2005 Mr. Burns was staying in State funded accomodation for asylum seekers. When the application was made to Laffoy, J it was averred by Mr. Burns and his "financée" intended to marry in October 2005. The first reference to Mr. Burn's wife in the proceedings appears at Record No. 2005/2898P arises in the exhibit "LHL1" to the affidavit of Liam Hugh Lavelle sworn on 8th November 2005. Dr. Forde made no reference to the material state of Mr. Burns and referred to the person named Martha variously referred to in the documentation as girlfriend/fiancée/partner or "being in a relationship" – there is no evidence that Laffoy, J was given any evidence of the legal obligations (if any) to support a wife. Further Mr. Burns avers in paragraph (3) of his affidavit of 25th August 2005 that he had not been able to open a bank account in his own name, yet exhibit "LHL1" item (12) in the Amended Attachment A indicates the existence of a Bank Account No 37476395 with Bank of Ireland. In short Laffoy, J was not given the full or accurate facts when she made her order on 7th September 2005.
When the Bank of Ireland indicated by letter of Tuesday 8th November, 2005 to Mr. Burn's solicitors that they had received an Order of the United States District Court for the Northern District of West Virginia and that the payments set out on foot of the Order of 7/9/2005 of Laffoy, J "now appear to been joined". They indicated that they intended to apply to the Court to vary the terms of Judge Laffoy's order. The response of Mr. Burns was to serve the Bank with a copy of the Order of Laffoy, J with penal endorsement thereon on 14/11/05 and to have issued a contempt motion on 15/11/05. I am satisfied that in the light of the correspondence and taking the evidence and submissions made in this regard that the contempt proceedings were precipitous and unnecessary and I decline and refuse to grant either party the costs of such motion.
In the proceedings 2005/96MCA Finnegan, P made an order on an ex-parte application on behalf of the Minister pursuant to Section 24 of the Criminal Justice Act 1994 as inserted by the Criminal Justice Act 1994 (Section 46(6) Regulations 1996 that the Respondent and any person having Notice of the making of the Order from disposing or dealing with or diminishing the value of the named property of Mr. Burns and this included the fund to which the earlier order of Laffoy, J attached. The obligation of counsel in seeking x-parte orders has most recently been considered by Kelly, J in Adams –v- DPP & others (Unreported, The High Court 12th April 2000), which was affirmed by the Supreme Court and is reported at [2001] 2 ILRM, 401. It was submitted that there was not full and frank disclosure by the representatives of the Minister before Finnegan, P.Mr. Martin Gallagher the solicitor instructing counsel in the case before Finnegan, P said that all he knew about the proceedings between Mr. Burns and the Bank of Ireland was that the United States had asked that the modified restraint order be served on Mr. Burns and that the Garda had issued a direction. He was not aware at the time of the making of the ex-parte application to the President of the order of Laffoy, J and had he been so aware he swore he would have applied to vacate it because it created a problem with two orders affecting the same bank account. I accept his evidence as truthful and find the facts accordingly.
Ms. A. Donnelly SC for the Minister indicated that notwithstanding that there had been some contact between counsel for the Minister and counsel for the bank, the focus of their contact was on the matter of extradition and I am satisfied as a fact that in concentrating on questions of jurisdiction and proofs a less than fully satisfactory enquiry was made into the events before Laffoy, J and other than a general awareness of an order there was no knowledge of its content or effect.
There is a vast difference between the absence of good faith (and the obvious to the Advocate – pace Adams) and a less than totally focussed enquiry which would have yielded information I believe could have influenced the terms of a restraining order under Section 24 of the Act of 1994 referred to in the title of the proceedings. I am satisfied that responsible counsel, if aware that the terms of the order of Laffoy, J of 7th September 2005 would have brought this to the notice of the President. I am also satisfied that in exercising jurisdiction the provisions of Section 24(2) of the Act of 1994 which provides:
"(2) Without prejudice to the
generality of subsection (1) of this
Section, a restraint order may make
such provision as the court thinks fit
for living expenses and legal expenses"
would have been considered by him. However I am equally satisfied, ignoring any information referable to the cases in the Appendix to this Ruling, that the difficulties in reconciling conflicting facts and the establishing of clearly absent facts by oral evidence would not have led the President declining to make a restraint order. It would have been modified by the application of subsection (2) of Section 24. Having regard to the submissions of counsel the application to the court to discharge and vacate the interim order made on 22nd November 2005 that this hearing is not the trial of the action, it would be in my judgment, given the facts as disclosed by Dr. Forde SC, differ from those in the affidavits to discharge the order. However I do believe that in all the circumstances, to the extend that as set out in the affidavit the full and true facts may be established at trial that the order of 22nd November 2005 should be varied to permit for living expenses given the facts disclosing to me. Such facts are at variance with those put before Laffoy, J and accordingly in my judgment Mr. Burns should have €2,000 per month on the 13th day of each month until the final determination of these proceedings in the High Court.
I have not determined the several legal issues raised by the parties, for to do so without the true and the full facts being established by tested evidence would be unjust to both parties. I am however satisfied, as was no doubt Finnegan, P when he considered the matter, that the proceedings do not and should not fail for want of form.
That is my judgment.
Approved: Smyth J.
APPENDIX
2000/500 SS Burns –v- Governor of
Cloverhill Prison (Order of
O'Neill, J: 21st March 2002)
2003/1713 SS Burns –v- Governor of Cloverhill
Prison (Ruling of O Caoimh, J:
22nd October 2003)
["I just invested €630,000 with
Owen Dennis the informant"
"Lavelle/Coleman using a
solicitor, Brian Bailey that
tries to get me to believe my
wife is the informant not Owen
Davis"
"My lease ran from October 6,
2001 to October 6, 2002"
Extracts from Mr. Burns document
dated October 16, 2003]
2003/1746 SS Burns –v- Governor of Cloverhill
Prison (Ruling of
O Caoimh, J dated 23rd October
2003)
2003/1835 SS Burns –v- Governor of Cloverhill
Prison (Ruling of O Caoimh, J
dated 17th May 2004 [Mr. Burns
in his documentation (p6 of a
manuscript refers to his
suffering from Dyslexia and
Attention Deficit Disorder]
2004/471 JR Robert Burns –v- Attorney
General (Ruling of O Caoimh J
dated 14th June 2004)
2004/467 SS Robert Burns –v- Governor of
Cloverhill Prison (Ruling of
Peart, J dated 22nd March 2004)
2004/900 SS Robert Burns –v- Governor of
Cloverhill Prison (Ruling of
O Caoimh, J dated 14th June
2004)
2004/1007 JR Robert Burns –v- Attorney
General (Ruling of McKechnie, J
dated 12th November 2004)
[Contains requests dated January
11, 2001 from Embassy of United
States of America
2004/1643 SS Burns –v- Governor of Cloverhill
Prison
Orders of Peart, J dated 13th
October 2004 and 18th November
2004
2004/1809 SS Robert Burns –v- Governor of
Cloverhill Prison (Ruling of
McKechnie, J dated 12th November
2004)
[Mr. Burns' document refers to
his car and an apartment:
Document dated November
2004]
2004/1946 SS Robert Burns –v- Governor of
Cloverhill Prison
(Ruling of O'Neill, J dated 17th
December 2004)
____________
2003/6846 P Robert Burns –v- Duggan Brothers
(Contractors) Limited
(This is a civil action in which
the plaintiff is stated to
reside at 16, Llewellyn Park,
Rathfarnham – this may refer to
a person with the same name as
the plaintiff, and his
description is given as
Carpenter)
2005/1474 S Robert Burns –v- Owen Dennis
(This case is referred to in the
ruling of 13/12/2005)
2005/27JR Robert Burns –v- Minister for
Justice, Equality and Law Reform
(Application to extend time to
apply for judicial review to
quash the decision of
the Refugee Appeals Tribunal
dated 5th September 2004
affirming the recommendation of
the Refugee Applications
Commissioners dated 19th July
2003 and 6th August 2003)
Now, Ms. Donnelly asked, yourself and Dr. Forde,
Mr. O'Shea is here to assist in this regard as well,
to have whatever points of claim or points of defence
are in issue paper either signed or agreed, has that
been done?
MS. DONNELLY: The position is that
Dr. Forde's solicitors
served what they titled was a Statement of Claim
under a heading Mr. Burns verses the Minister and the Attorney General. Now, we responded in terms of
points at issue to that under the heading of the
Order 24 proceedings, my Lord, so to that extent, and
with that caveat, because I am not sure why a change
in the heading was put on the proceedings, but with
that caveat, we have done that, we have effectively exchanged points at issue, my Lord.
MR. JUSTICE SMYTH: Well, that is progress. I
MS. DONNELLY: Yes, and I think that those
proceedings are probably in
a position now to obtain a date.
On the last day I had said to the Court that I
believed that the motion has effectively been made returnable to Finnegan, P, what is termed the
interlocutory motion on 19th December, but I was told
in the course of the hearing, and Dr. Forde didn't
demur from this, that in fact that date may have been
vacated and put into your Lordship's list. It appears
now in the list, my Lord, for the 19th, but I think
it is more properly a matter that should go into the
list on 15th and if I could have leave to mention any
matter before the President just to vacate that day
and put it into the list.
MR. JUSTICE SMYTH: What do you want to say?
MR. O'SHEA: I am not sure that the 19th
should be vacated at this
stage.
MR. JUSTICE SMYTH: Well with the position is
that it is in the interests
of both parties to get an early date. I spoke to the
Chief Registrar, because I was unable to speak to the President this morning for the a range of reasons,
the position is that it will not appear in the list
on the 19th, it will appear in the list here this
week on 15th. I will de dealing with the list to fix
dates for the next term. Subject to what I will be able
to do between this and then I will be able to see
that you get on in the first week or ten days of
term.
MR. O'SHEA: Thank you, my Lord.
MR. JUSTICE SMYTH: Now, while the title of the
proceedings may be as
indicated, it seems to me that both proceedings that
have been before me should go forward together. The
title from the point of view of dealing with the real
issue probably is reasonably correct, but it seems to
me that the bank may wish to be on notice as to those proceedings, less per chance anything was stated in
their affidavits and the matters in their affidavits
should require to be dealt with at the hearing, which
I do believe it will, because while I have not read
out the appendix to the judgment for you, because it
is a series of detailed record numbers and who the
orders were made by, and so forth, you will see when
you get the document with the appendix that there are
a number of matters referred to, and I have only just
simply taken literally a read through without
analysis, of a number of matters that never came to
light in the proceedings before me. That's why I
didn't make an adjudication on that basis, but there
are a lot of facts that were never put before either
of the judges who dealt with this case, it is quite
clear. Somebody at some stage better assemble
themselves fully, but I will accept the fact that
there are now pleadings sufficient for the matter to
go forward and the matter will appear in the list on
15th to get a list at the beginning of next term.
MS. DONNELLY: If I can just clarify, when
I said that Dr. Forde, the
proceedings were entitled, they were entitled Burns
verses the Minister for Justice, Equality and Law
Reform and the Attorney General, my Lord. They
weren't the bank's proceedings. He only made those
issues in relation to the Section 24 order rather
that the Section 31(7) direction. It seems to me, my
Lord, that those other proceedings, which the bank is involved in –
MR. JUSTICE SMYTH: Mr. McGarry is involved
With, yes.
SPEAKER: I am standing in, my Lord.
MS. DONNELLY -- are quite separate
proceedings, my Lord, and
would require plenary hearing, which the Section 24
order will not really require, my Lord, it seems to
me in terms of the issue.
MR. JUSTICE SMYTH: For all that the bank were
found in a position where
they effectively had to interplead. They acted in
good faith throughout and eventually found themselves
in this crossfire. They may wish to be heard and
they will be permitted to appear as a notice party
less per chance any of the information that is
averred to is at issue. I don't think there is any difficulty about that, Mr. Shea?
MR. O'SHEA: No.
MS. DONNELLY: If your Lordship is
directing that the case be
heard together, so be it.
MR. JUSTICE SMYTH: I think there is a question
of convenience, I mean,
otherwise people are going back to back. It's all
legal costs. Essentially an account has to be given,
the true facts have to be established, that's the one
thing that has not been established. Laffoy, J was
told something, McKechnie J was told something,
Finnegan J was told something, I have been told
something. There are a whole heap of matters in the appendix that reveal other matters. The one thing is
that no one judge has been given a full truthful
factual position to make an adjudication on the facts
and then to apply the law. That's why there is no
legal determination, because the facts do not at
present permit – anyway it was not intended to be a
final determination.
MS. DONNELLY: Yes, my Lord, in relation
to the other only other
matter is the costs of this application, my Lord.
MR. JUSTICE SMYTH: I will reserve the costs,
because clearly this matter
has to be of dealt with.
SPEAKER: Of all matters. Can I just
say by way of clarify in
relation to the mechanism of the payment out, that
will be from the Dun Laoghaire branch of the Bank of
Ireland on the 13th of each month. It will be on the application of Mr. Burns and it is up to him to
decide whether or not he wants his money so that he
can apply on that day of each month to the Dun
Laoghaire branch and it is in relation to account
number 15146563 which is the only account with money
in it.
MR. JUSTICE SMYTH: That's the account to which reference was made.
MR. O'SHEA: I take it that includes the
13th of this month?
MR. JUSTICE SMYTH: It does include the 13th of
this month. If there is any
difficulty, given the fact it is litigious, the
request might be better coming through solicitors, so
that there can be no questions, because the last time
it lead to this, what I referred to as the
precipitous activity and we will say no more about
it.
SPEAKER: Very well a request then
can be directed to
Mr. Lavelle.
MR. JUSTICE SMYTH: I think it is best to keep
it on a firm footing. There
are lawyers involved now,
keep it on a structured arrangement.
SPEAKER: The funds may be collected
at that branch?
MR. JUSTICE SMYTH: Yes.
SPEAKER: May it please your
Lordship.
THE MATTER WAS ADJOURNED UNTIL THURSDAY, 15TH
DECEMBER 2005