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Cite as: [2014] IESC 43
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Judgment Title: Murphy -v- Gilligan & ors Neutral Citation: [2014] IESC 43 Supreme Court Record Number: 275, 276, 277, 278, 279 and 280/2012 High Court Record Number: 1996 10143 P / 2006 1118 P / 2005 2628 P Date of Delivery: 09/07/2014 Court: Supreme Court Composition of Court: Denham C.J., Murray J., Clarke J., MacMenamin J., Dunne J. Judgment by: Clarke J. Judgment by: Ruling - Clarke J Status of Judgment: Approved |
THE SUPREME COURT [Appeal Nos: 275, 276, 277,
278, 279 and 280/2012 ] Denham C.J. Murray J. Clarke J. MacMenamin J. Dunne J.
Michael F. Murphy Plaintiff/Respondent and
John Gilligan, Geraldine Gilligan, Darren Gilligan and Tracy Gilligan Defendants/Appellants Judgment of Mr. Justice Clarke delivered the 9th July, 2014. 1. Introduction 1.2 In the context of those appeals a number of applications by motion were brought before this Court by the defendants/appellants (collectively "the Gilligans"). Some of those motions have now been heard and are the subject of this judgment. In order to understand the precise issues which arise it is necessary to say something about the background to these appeals and, indeed, these proceedings generally. 2. The Background 2.2 S.3(1) of the 1996 Act provided that an application can be made to the High Court for an order preventing the respondent to the application from disposing of or otherwise dealing with property or diminishing its value. 2.3 S.3(3) of the 1996 Act then provided that, where an order under s.3 is in place, the court can discharge or vary such order where, on an application by the respondent to the proceedings, or any other person claiming ownership of the property in question, it is shown to the satisfaction of the court that “that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,” or that the order causes any other injustice. 2.4 Where an order made under s.3 of the 1996 Act has been in force for not less than seven years, the court, on application to it under s.4 of the 1996 Act, can grant a disposal order in relation to the property “directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine.” S.4 is once again subject to the clause, provided here in the form of subsection 2, that the order shall be granted, “unless it is shown to its satisfaction that that particular property does not constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime.” 2.5 Persons the subject of an order under s.3 have, through a separate application under s.3(3), or, at the stage of the s.4 hearing, the opportunity to present the court with evidence challenging the basis of the making of the order or providing the court with evidence of injustice caused by the making of the order. 2.6 An Order was made on the 5th December, 1996 under s.3 of the 1996 Act, restraining the Gilligans from disposing of, or dealing with, the relevant property until the 19th December, 1996. On the 19th December, Costello P. ordered, on foot of the earlier motion, that the Gilligans be restrained from disposing of, or dealing with, that property until further order under s.3 and the motion was adjourned generally with liberty to re-enter. On the 16th July, 1997, Moriarty J. made an order under s.3 of the 1996 Act to similar effect. 2.7 In the interim, the first named defendant/appellant ("John Gilligan") brought proceedings against the Bureau and others seeking declarations that some or all of the provisions of the 1996 Act were invalid having regard to the provisions of the Constitution. On appeal to this Court (in a decision reported as Murphy v. G.M. [2001] 4 IR 113), the constitutionality of the 1996 Act was upheld. 2.8 A Special Summons was then issued on the 22nd December, 2004 by the Bureau seeking a disposal order under s.4 of the 1996 Act on the basis that seven years had elapsed since the making of the s.3 order in the case. The Gilligans issued a motion seeking an order to dismiss that Special Summons on 8th February, 2005. The Gilligans also sought to discharge the orders previously made under s.3 of the 1996 Act and an extension of time within which to seek so to do. In an order made on the 30th January 2006 by Finnegan P., the Gilligans' motion was dismissed. That decision was appealed to this court and a motion was brought seeking an extension of time within which to appeal the earlier s.3(1) order of Moriarty J. of the 16th July, 1997, should the appeal against the decision of Finnegan P. fail. Judgment was delivered on the 19th December, 2008, upholding the High Court decision (Murphy v. Gilligan [2009] 2 IR 271). This court noted that an appropriate avenue for relief where an order under s.3(1) is in place, is an application to vary or discharge that order under s.3(3). 2.9 Proceedings were then brought by John Gilligan, bearing the record number 2006/1118P, again seeking declarations that all or parts of s.3 of the 1996 Act were repugnant to the Constitution. There was also a claim seeking a declaration that the 1996 Act was incompatible with the European Convention on Human Rights (“ECHR”) (brought under s. 5 of the European Convention on Human Rights Act 2003 (“the ECHR Act”)). In these proceedings, John Gilligan applied for legal aid in the High Court. That application was refused in part because of the fact that the constitutional issues raised had already been determined by this Court in Murphy v. G.M. [2001] 4 IR 113. The refusal of legal aid was appealed to this Court and, in an ex tempore decision of Fennelly J. dated 7th April 2010, it was held that the ad hoc legal aid scheme (CAB) dated November 1999 did not apply to a claim such as the claim sought to be pursued. On remittal to the High Court, it was agreed between the parties, due to the fact that the second named appellant (“Geraldine Gilligan”) had very similar proceedings in being, that both John Gilligan and Geraldine Gilligan would have the benefit of the ad hoc legal aid scheme extended to the “Convention issues” in addition to the s.3(3) application then underway, in order to facilitate a full and complete hearing of all issues. In substance each of the Gilligans had the benefit of legal aid for all of the High Court proceedings which are currently the subject of the appeals before this Court. 2.10 The application under s.3(3) of the 1996 Act, was refused in a decision of Feeney J. dated 27th January 2011(Murphy v. Gilligan [2011] IEHC 62). Feeney J. was satisfied that, on the balance of probabilities, the relevant properties were purchased with the proceeds of crime and that no injustice was caused by the s.3 order remaining in place. 2.11 Thereafter a s.4 hearing occurred. In preparation for that hearing, the Gilligans, in the context of presenting evidence to the court in defence of the s.4 application, sought that they be given legal aid to procure and then admit a report of a forensic accountant on the question of whether the relevant properties had been purchased with the proceeds of crime or, as they asserted, gambling winnings. The trial judge ruled against the Gilligans on that issue on the 31st May, 2011, finding that it would be an abuse of process for the Gilligans to seek to revisit the proceeds of crime/proceeds of successful gambling issue which had been resolved against them at the s.3(3) hearing. 2.12 The challenge based on the ECHR was determined in a judgment dated 20th December, 2011 (Gilligan v. Ireland, the Attorney General and the Criminal Assets Bureau [2011] IEHC 465), in which Feeney J. ruled that the Gilligans had not established that the s. 3(1) proceedings, the order made, or the section itself are in breach of the Gilligans’ rights as guaranteed by the ECHR. 2.13 A full hearing also took place on the s.4 application and that judgment was also delivered on the 20th December, 2011 by Feeney J. (Murphy v Gilligan [2011] IEHC 464), in which disposal orders were made. 2.14 The appeals which the Gilligans now pursue involve the decisions of Feeney J. to dismiss the s.3(3) application, the making of the disposal orders under s.4 and the dismissal of the claims for relief under the ECHR Act. The Gilligans have also issued a Notice of Motion requesting this Court to re-visit its judgment in Murphy v. Gilligan [2009] 2 IR 271, in accordance with the principles set out in the decision of this court in Re Greendale Developments Ltd (No. 3) [2000] 2 I.R. 514. The two motions brought by the Gilligans before this Court which are the subject of this judgment are a motion requesting the appointment a forensic accountant and a motion seeking disclosure of documentation. 2.15 On the morning of the hearing an adjournment was sought in respect of the motion seeking disclosure of documents. The reason for that adjournment was said to derive from the fact that documents had been sent on behalf of the Bureau to the solicitors now representing the Gilligans in the immediate run-up to the hearing date. The Bureau drew attention to the fact that all of the documents in question had been made available, in the past, to solicitors who had previously acted, at the time in question, for those same persons. To the extent that it was said that the new team of lawyers acting for the Gilligans had not themselves had sight of the documents in question it can, in my view properly, be commented that the Court and parties to litigation are entitled to assume that documents, which have been supplied to a solicitor acting on behalf of a party or parties to such litigation, are and remain within the power and possession of the party concerned and do not require to be sent again, to either the party or new lawyers who may be appointed at some later stage to represent the party concerned in the same litigation. If documents were supplied, at any material time, to lawyers then on record for the Gilligans, then it cannot be said to be the fault of the Bureau that those documents are not within the possession of the legal team now acting for those parties. 2.16 While the matter of disclosure has been adjourned, it is my view that those comments should be taken on board in respect of any further requests for documentation. In addition, I am satisfied that, in the light of the fact that a hearing on the merits of any entitlement to documentation which the Gilligans may have could have been conducted on the occasion in question (and was not so conducted only because of a failing within the Gilligan side), any further request for documentation should not in any way delay these appeals from being finally disposed of. Be that as it may, the only matter which remains for consideration is the application to have funding provided under the relevant ad hoc legal aid scheme for the production of a forensic accountant’s report. I, therefore, turn to a consideration of the basis on which it is said that such funding should be provided. 3. The Proposed Forensic Accountant’s Report 3.2. It is said, in that context, that it is now considered desirable to seek to place before this Court an alternative view (if one can be secured) of the materials relating to those gambling transactions and it is to that end that it is sought to have funding for the production of the relevant forensic accountant report. In that context, it does need to be noted that, as has been earlier pointed out, each of the members of the Gilligan family have been given legal aid pursuant to the Criminal Assets Bureau ad-hoc legal aid scheme. It follows that, if there was a proper basis on which evidence of the type sought to be procured from a forensic accountant was required for the purposes of this appeal, it would be likely that it would be appropriate to permit funding to be made available to that end. The issue before the Court is not, therefore, truly as to whether funding should be made available but rather as to whether there is any legitimate purpose in securing a forensic accountant’s report in the first place. Counsel for the Gilligans quite properly accepted that the only purpose of securing such a report would be to seek to have same admitted as new evidence for the purposes of the hearing of these appeals. A forensic report, in the context of these proceedings, could perform no other useful function. 3.3 Thus, in reality, the true question which arose on this motion was as to whether such a report should be admitted in evidence if it could be procured. If it should be admitted in evidence then it would be reasonable that it be procured and that funding be made available to allow for that eventuality. If it should not be permitted to be admitted in evidence then there clearly would be no justification for providing funding to produce it. The real issue, therefore, comes down to one as to whether such a report should be permitted to be admitted in evidence. In that context two different bases were put forward for suggesting that such a report would be material to the issues which arise on these appeals and should, notwithstanding that the relevant evidence was not placed before the High Court, nonetheless be permitted to be placed before this Court and considered in the context of the appeals. I, therefore, turn to the bases put forward. 4. The Bases Put Forward 4.2 The test for leave to admit further evidence on appeal is set out in Lynagh v Mackin [1970] I.R. 180. According to the test an appellant is normally required to satisfy three conditions: first, to show that the further evidence could not have been obtained with reasonable diligence for use at the trial; second, to show that the further evidence was such as would probably have an important influence on the result of the case; and third, to show that such evidence was apparently credible. 4.3 The test was affirmed and re-stated by Finlay C.J. in Murphy v Minister for Defence [1991] 2 I.R. 161 at 164 in the following terms:-
2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive; 3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.”
4.6 At paragraph 42 of Feeney J.’s judgment concerning the s.3(3) application (Murphy v. Gilligan [2011] IEHC 62), the finding is made that “John Gilligan’s evidence in relation to profits from gambling and other economic activities in the period up to and including 1990 is so vague and his actions so contradictory that the Court cannot accept John Gilligan’s evidence on this matter.” The court found on the balance of probabilities that the funding for the relevant properties was sourced from the proceeds of crime. That decision is, as has been pointed out, one of those challenged as part of these appeals. In his decision on the s.4 application (Murphy v Gilligan [2011] IEHC 464), regarding the disposal of assets, Feeney J. held that the findings made in the s.3(3) decision could not be re-opened. In that context Feeney J. said:-
4.7 It is argued that a forensic accountant’s report is both necessary and appropriate to enable the grounds of appeal in respect of those two findings to be properly pursued. It is in the context of that argument that it is necessary to analyse the merits of the case put forward. 5. Analysis 5.2 So far as the s.3(3) hearing is concerned different considerations apply. Clearly a forensic accountant’s report might well have been relevant to the decision on the merits taken by Feeney J. in respect of the question of fact as to whether the relevant assets derived from proceeds of crime or proceeds of successful gambling. There can be no doubt but that, if a conflicting forensic accountant’s report had been put before the High Court on behalf of the Gilligans, that court would have to have considered that evidence in conjunction with all of the other evidence and come to whatever conclusion was appropriate on the facts. However, no such report was, it would appear, ultimately sought and it is clear that no such evidence was sought to be placed before the High Court. 5.3 In substance, therefore, what is now sought on behalf of the Gilligans is that evidence which clearly could have been procured and placed before the High Court should now be placed before this Court on appeal. It is said that some discussion took place between John Gilligan and his Solicitors in relation to acquiring the services of a forensic accountant but that, due to a lack of time, it was not possible to arrange for such an accountant to give evidence (Affidavit of John Gilligan sworn on the 24th October 2013, para.9 and 10; Supplemental Affidavit of John Gilligan sworn on 4th December 2013, para.14 and 15.). Be that as it may it is abundantly clear that there was more than ample opportunity to mount whatever defence was considered appropriate to the case which the Bureau was proposing to make to the High Court, on the facts, on the issue in question. The forensic accountant’s report on the Criminal Assets Bureau side was put in evidence through an affidavit sworn on the 30th September, 2009. That was some nine months before the hearing on the s.3(3) application commenced. Notwithstanding that no replying affidavit was filed although the relevant accounting witness was subjected to significant cross-examination. 5.4 It should be noted that counsel for the Bureau did make reference, in the course of argument, to the fact that a number of the criteria identified in jurisprudence already cited had not been met. It was said, correctly so far as it goes, that the precise evidence now sought to be admitted had not been identified. That is obviously so because the forensic accountant’s report has not yet been procured. It follows, it is said, that it has not been established that the relevant report would be sufficiently material to the case or, indeed, credible so as to meet the requirements in that regard as specified in that jurisprudence. That again is obviously so because without knowing what would be in the report it would not be possible to tell how credible, or material, it might be. 5.5 However, in the unusual circumstances of this case, I am not convinced that those points are particularly relevant no matter how important they may be in the vast majority of cases. This is a case where someone is seeking public funding to assist them in defending a claim brought by the Bureau. If it were otherwise appropriate to admit new evidence then the fact that funding was needed to procure that evidence would, it seems to me, provide an explanation as to why it was not possible to place the evidence before the court on an application to admit new evidence and to provide for funding to procure same and would, thus, provide an explanation as to why it was not possible to assess the materiality and credibility of the evidence. If such evidence was, prima facie, to be properly admitted on an appeal and if there was a credible basis for suggesting that it could be procured and might be material, then the fact that it was not yet available would not, it seems to me, provide a proper basis for refusing funding to allow it to be procured. But all of that begs the question as to whether it would, even if the evidence was procured, be appropriate to admit it. 5.6 In that context, it is important to note that counsel for the Gilligans suggested at the hearing of this application that it would be argued on the appeal that Feeney J. was incorrect to make the finding which he did on the basis of the evidence before him. That argument can, of course, be pursued without the benefit of any additional evidence. If it is a good argument then it will succeed. If it is a bad argument, and there was sufficient evidence to justify the findings of the High Court, then it will fail. 5.7 But the only relevance of a new forensic accountant’s report could be to suggest that, even if the High Court was correct to conclude as it did on the evidence before it, this Court should now reach a different conclusion because of new evidence. That must be so because, in the event that there was not enough evidence to justify the relevant finding in the first place, the appeal will necessarily succeed. It will do so without any new evidence. It is only if there was sufficient evidence before the High Court to justify its finding that any new evidence could be material at all. 5.8 In substance, therefore, what is sought is to re-open an issue which was fully fought before the High Court, on full notice to the Gilligans, on the basis of seeking to procure new evidence which could and should have been available, if desired, at that High Court hearing. It would be a manifest injustice to allow that course of action to be adopted. Apart from making complaints about his lawyers, no proper explanation is given as to how, if such a report was as important as is now asserted, it was not properly sought, not obtained and, if necessary, an adjournment of the hearing sought to allow it to be obtained (if there were any delay) but that, rather, the hearing went ahead with the forensic accountant for the Bureau being subjected to lengthy cross-examination. To allow new evidence to now be put before this Court would be to do the very thing which the jurisprudence is designed to prevent. It would be to allow a party to have a dry run in the High Court and then try and mend its hand on the evidence in the event that its case failed on the facts. I can see no justification whatsoever for permitting that course of action to be adopted. 5.9 It seems to me, therefore, that it would be wholly inappropriate to permit a forensic accountant’s report to be admitted in evidence so far as the appeal in respect of the s.3(3) order is concerned. 6. Conclusions 6.2 I would also comment that, in the light of the adjournment of the second motion seeking disclosure of documents, it is of the utmost importance that, if any documentary issues remain in dispute, same are either resolved between the parties or placed before the Court in a timely fashion such as will not delay the substantive appeals coming on for hearing. _____________________ Ruling of Mr. Justice Clarke delivered the 9th July, 2014. 1. In the light of the judgment now delivered the Court proposes to set out how these appeals should now be brought to finality. The principal procedural question remaining is as to how to deal with what have come to be called "the Greendale motions". As noted in the judgment just delivered, these motions seek leave to permit certain issues previously decided by this Court to be reopened. Having regard to the terms of the Constitution itself and the jurisprudence of this Court, it is clear that such leave can only be granted in very limited and exceptional circumstances. 2. The Court is aware of the views expressed by counsel on both sides in the course of case management to the effect that it would be difficult to disentangle the issues which are the subject of the Greendale motions from at least many of the other issues which potentially arise on these appeals. On that basis the Court is aware that counsel for both sides suggested that the Greendale motions should be heard at the same time as the appeals not least because it was envisaged that there would be a saving of time and grater clarity achieved by adopting such a procedure. 3. On the other hand, the Court is concerned that the high constitutional value which is placed on the finality of orders of this Court should be adequately recognised. In those circumstances, and notwithstanding the logistical issues quite properly identified by counsel, the Court will direct that the Greendale motions be heard in advance of the substantive appeals. 4. However, recognising that there are real logistical difficulties such as those identified by counsel, the Court will endeavour to ensure that the same panel which hears the Greendale motions will also be assigned to hear the substantive appeals. It may be necessary, for a proper disposition of the Greendale motions, for the Court to hear at least an outline of the arguments which would be made on the appeals in respect of those issues if same are permitted to be raised on appeal. Should the Greendale motions be successful, the panel hearing the substantive appeals will, therefore, have had the benefit of having heard such outline argument. 5. In order, therefore, that the Greendale motions come on for hearing, the Court will require that revised submissions, directed to the Greendale motions only, should be filed, in the first instance by the moving parties with responding submissions on behalf of the bureau. It is accepted, for the reasons noted earlier, that those submissions may, at least in outline, have to stray into the substance of the issues which would be raised on the substantive appeals in the event that the Greendale motions are successful. The matter will, therefore, be put in for further case management to ensure that those motions can be heard in a timely fashion. |