High Court of Ireland Decisions

1. This Motion seeks relief under four headings. A week ago last Monday I said I would hear the matter in so far as it related to paragraph 2 which seeks an order vacating orders made on (1) 4 June 1992; (2) 16 July 1992; (3) 22 July 1992; (4) 11 June 1993; (5) 24 April 1995. I understood they were to vacate Mareva or Anton Pilar-type orders.

The order of 4 June 1992 and made ex parte restrained the Defendant until the 22 June 1992, or until further order in the meantime, from removing any assets out of the jurisdiction or from reducing or disposing of assets in the jurisdiction save in so far as the value exceeded £350,000. This order was varied by the order of 11 June 1993 by permitting the Defendant to deal with moneys in four named bank accounts and to open and operate a bank account with the National Irish Bank in Limerick. On the face of it, the injunctive part of the order of 4 June 1992, as varied by the order of 11 June 1993, is spent. It appears to have been replaced by an interlocutory order of 12 October 1993.

The order of 16 July 1992 was made ex parte. It permitted the Plaintiff's solicitor and the Plaintiff to enter the National Irish Bank, Patrick Street, Limerick, to carry out an inspection in respect of chattels and securities and for the Plaintiffs solicitor to take custody and remove them for safekeeping. This inspection and removal has been carried out and the order is therefore spent.

The order of 22 July 1992 was made ex parte. It permitted the Plaintiffs solicitor and a named chartered accountant to enter the Defendant's premises between 9 am and 7 pm to carry out a search for chattels, choses in action, securities, documents, records and files and to permit the solicitor to take custody and remove them for safekeeping.

The order of 24 April 1995 ordered Julian Deale, Solicitor, to transfer into the custody of this court a cash box received by him from Brian Hickey, and the whole contents, including 120 gold coins held at the National Irish Bank, William Street, in the name of the Defendant. This is a mandatory order which was complied with and is therefore spent.

The Defendant also sought to be relieved of undertakings recorded in an order dated 28 July 1992. In addition, the Defendant sought to discharge three further orders mentioned in an affidavit sworn on 22 July 1999, the first of which is dated 12 October 1993, an interlocutory order restraining the Defendant from removing assets out of the jurisdiction or reducing these assets save in so far as they exceed £350,000. The next one is an order dated 16 July 1992, and this order is mentioned in the Notice of Motion. The third order is made ex parte on 27 July 1992 restraining the Defendant from interfering with Brian Hickey and others in the execution of the order of 22 July 1992 and from destroying documents and chattels pending the trial of the action.

In relation to the order of 22 July 1992 and the related orders of 22 July 1992 the Defendant says that no attempt was made to conduct a further search although arrangements to conduct one were made.

Since clause 2 of the Notice of Motion deals with five orders only, I do not propose to widen the scope of the orders sought at this stage. However, the Notice of Motion may be amended, if the Defendant so wishes, to include the undertaking and additional orders mentioned in the affidavit of 22 July 1999, and be dealt with at the adjourned Motion on 11 October 1999.

Of the five orders mentioned, the only order which is potentially still alive is the order of 22 July 1992. However, even this is doubtful as the Plaintiff now represents herself and the solicitor named in the order would therefore not be entitled to act. In her affidavit at E the Plaintiff says that the order of 22 July 1992 expired when an attempt was made to execute it on 24 July 1992 and that it has been replaced by a new and separate order, not a subject of the Motion. This is not so. The subsequent order of 27 July 1992 restrained the Defendant from interfering with the execution of the order of 22 July 1992, showing that at that time the order was extant. In my view the ex parte order of 22 July 1992, in so far as it could be said to be alive, is so old (seven years old) that it would be unjust to allow the persons named in it to enter and search the first Defendant's premises. No action has been taken for over three years to further the progress of these proceedings.

I will vacate the order of 22 July 1992 in so far as it permits Brian Hickey or Terry Citron, together with Brendan Murtagh, to enter the first Defendant's premises at 7 Oaklawns, Castletroy, Limerick, to carry out a search and inspection and take custody of or remove anything. The remainder of the order which dealt with the Plaintiffs undertaking as to costs remains. I propose to reserve the costs of this Motion. The balance of the Motion is adjourned until the 11 October 1999.