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Cite as: [2000] IESC 63

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Criminal Assets Bureau v. Kelly [2000] IESC 63 (7th July, 2000)

THE SUPREME COURT

KEANE C.J.

MURPHY J.

McGUINNESS J.

163/2000

CRIMINAL ASSETS BUREAU

.v.

MATTHEW KELLY

EXTEMPORE JUDGMENT delivered the 7th day of July 2000 by Keane C.J.

1. I am satisfied that this application by the defendant for an extension of time within which to appeal from the judgment and order of the High Court (Mr. Justice O’Sullivan) giving judgment in the sum of £662,094 in respect of a tax claim must be refused. It was grounded on an affidavit of Mr. Colin MacGeehin, a solicitor, who gives an account in paragraph 2 of the circumstances in which judgment was obtained but which fails to indicate the source of Mr. MacGeehin’s knowledge as to what transpired in the High Court when judgment was entered on behalf of the plaintiff. He then gives a summary of what transpired which the court now knows in the light of the transcript furnished to us this morning is wholly inaccurate and indeed

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(2)

seriously misleading. It is suggested in Mr. MacGeehin’s affidavit, on what basis I do not know, that counsel for the Criminal Assets Bureau took an unfair advantage of a solicitor who was seeking to come off record and that there was a significant denial of a fair hearing to the defendant. The transcript with which we have been furnished and which has riot been suggested is in anyway inaccurate lends no support whatever to that suggestion. On the contrary, it indicates that this matter was heard in the most painstaking and meticulous fashion as one might expect by Mr. Justice O’Sullivan who gave every facility which he could to the defendant and that furthermore the hearing of the case, again as we could expect it would, was conducted by counsel for the plaintiff in a meticulous and exemplary fashion. I am disturbed by the fact that an officer of the court should have chosen to swear in so casual a manner an affidavit of this nature grounding an application as serious as this.

2. On those grounds alone I would refuse the application. If this court were to apply the criteria set out in the decision of this court in Éire Continental Trading Company Limited and Clonmel Foods Limited I would also be satisfied that the defendant has failed to establish any arguable ground of appeal whatever that being the third of the grounds set out in that decision on which this court will extend the time provided the other two grounds are met. In this case, no arguable ground of appeal whatever has been shown to exist. It

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(3)

is clear that the judgment was for a sum admitted to be due and that the defendant on that occasion either through himself or through a solicitor made no attempt to argue that it was not due and merely wished to argue as to the balance of the claim. It is of course clear that the defendant did not like the idea of a judgment being entered against him. Of course, he did not but he made no suggestion either by himself or through his solicitor or through any one else that the sum was not due and owing.

3. On the grounds as I have already indicated namely that this application was grounded on a seriously inadequate and I regret to have to say positively misleading affidavit, I would refuse the application.