High Court of Ireland Decisions

1. By Order made on the 22nd day of June, 2001, I gave liberty to the Plaintiff to issue an originating plenary summons against the Defendant and to serve notice of the same out of the jurisdiction on the Defendant he not being an Irish citizen. On the application I was satisfied that the action falls within the class of action set out in the Rules of the Superior Courts Order 11 Rule 1(g) which provides that service out of the jurisdiction may be allowed by the Court whenever:-

2. The Defendant entered a qualified appearance for the purposes of challenging jurisdiction and issued a motion claiming several reliefs only one of which now concerns me, namely, an order to set aside my order of the 22nd June, 2001, on the grounds that the action does not fall within the class set out in Order 11 Rule 1(g). It is common case that the action does not fall within any other class of action listed in Order 11 Rule 1.

3. The Plaintiff’s claim against the Defendant is brought pursuant to the Proceeds of Crime Act 1996. The plenary summons sets out in the schedule thereto assets in the jurisdiction consisting of sums standing to the credit of bank accounts and 2 policies of assurance. The endorsement of claim reads as follows:-

4. In dealing with Order 11 Rule 1(g) O’Floinn’s Practice and Procedure in the Superior Courts sets out the law in the following terms:-

5. The White Book deals with the corresponding provision in England and Wales in the following terms:-

6. Order 11 Rule 1 of the present rules is for present purposes identical to Order 11 Rule 1 in the Rules of the Supreme Court (Ireland) 1905 and the Rules of the Superior Courts 1962: the present rules and the 1962 rules added some classes of action to those listed in the 1905 rules. In relation to the 1905 rules it was held in O’Connor .v. The Star Newspaper Company (Ltd) 30 LR IR. 1 that Order 11 Rule 1 forms a complete and exhaustive specification of the circumstances under which and under which alone service out of the jurisdiction will be allowed. See also AG .v. Drapers Co [1894] 1 IR 185. The granting of an order where those circumstances apply is discretionary.

7. The relief sought was refused.

8. There are a number of decisions of the Irish Courts on the provisions of Order 11 Rule 1(g) in the 1905 rules. In Joynt .v. M’Crum [1899] 1 IR 217 the plaintiff sought an injunction against the vendor of cycles within the jurisdiction and the manufacturer of those cycles in England alleging that they infringed his patent and also claimed damages. It was held that service out of the jurisdiction was properly allowed as the claim for an injunction could not be regarded as merely ancillary to that for damages.

9. There are a number of cases in which an order for service out of the jurisdiction was challenged on the basis that the injunction related to property out of the jurisdiction and could not be enforced (see In Re: Burlands Trademark Burland .v. Broxburn Oil Company [1889] IR 542). In the present case the subject matter of the claim is property within the jurisdiction and any order which the Court may make can readily be enforced.

10. That the jurisdiction conferred by Order 11 Rule 1 of the 1905 rules is exhaustive was confirmed by the Supreme Court in Shipsey .v. British & South American Steam Navigation Company [1936] IR 65 and in relation to the 1962 rules by the Supreme Court in Caudron & Ors .v. Air Zaire & Ors [1985] IR 716. I see no reason why the current rules should be regarded differently.

11. Order 11 Rule 1(g) was considered in detail by the Supreme Court in Caudron .v. Air Zaire . The endorsement of claim to the plenary summons in that case sought damages for breach of a contract which was made and breached outside the jurisdiction. An aeroplane the property of the defendant was within the jurisdiction. In the endorsement of claim the plaintiffs also sought an injunction restraining the defendant from moving out of the jurisdiction or in any way dealing with the aeroplane so as to reduce its value below a stated sum. The defendant brought a motion seeking to have the order giving liberty to serve out of the jurisdiction set aside and failed on that motion before Barr J. On appeal to the Supreme Court it was held:-

12. The only judgment delivered in the Supreme Court is that of Finlay CJ and at pages 719 et seq he said:-

13. The defendant was thus relying on two distinct arguments:-

14. Finlay CJ went on to deal with this submission as follows:-

15. The learned Chief Justice went on to rely upon the decision of the House of Lords in Siskina (Cargo Owners) .v. Distos Companior Naviera S.A. [1979] AC 210.

16. At this point it is important to remember the nature of the rules of procedure in these Courts. Insofar as the United Kingdom is concerned Halsbury’s Laws of England Volume 37 paragraphs 1-16 are informative. There the distinction is drawn between substantive law and procedural law. Substantive law creates rights and obligations and determines the ends of justice embodied in the law, whereas procedural law is an adjunct or an accessory to substantive law. It is by procedure that the law is put into motion, and it is procedural law which puts life into the substantive law, gives it its remedy and effectiveness and brings it into being. In Halsbury the sources of procedural laws are identified as statute law, rules of court, judicial precedent, practice directions, prescribed and practice forms, the inherent jurisdiction of the court, the practice of the court and books on practice and procedure. In this jurisdiction regard must also be had to the Constitution and the relative positions of the Legislature and the Courts under the provisions thereof.

17. Having regard to the foregoing I propose to have regard to the following propositions which appear to me to represent the law:

18. The Proceeds of Crime Act 1996 has the objective set out in the judgment of Moriarty J in Gilligan .v. CAB [1998] 3 IR 175 (at page 178):-

19. Again, the long title to the Act clearly sets out the legislative intention:-

20. The Act sets out a discrete scheme to achieve the legislative intention of firstly preserving and secondly where appropriate disposing of the proceeds of crime. I attach particular significance to the inclusion in the long title of the reference to orders for the preservation of the proceeds of crime. Section 2 of the Act provides for the granting of what are described as interim injunctions and section 3 for interlocutory injunctions and these sections give effect to the legislative intention to preserve the proceeds of crime. In argument before me it was submitted on behalf of the Defendant that injunction in Order 11 Rule 1(g) should be given a narrow meaning - those orders which would be granted by the courts of equity directing a person to do or to refrain from doing an act. This clearly cannot be right as the 1905 rules were expressly introduced pursuant to the Judicature (Ireland) Act 1877, the Supreme Court of Judicature (Ireland) Act 1897 and the No 2 Act of the same title and year and must at the very least extend to common law injunctions under the Common Law (Amendment) Act Ireland 1856 s.81 and which injunctions were then generally described as statutory injunctions: (see Wylie Judicature Acts at page 73 et seq). In these circumstances I am satisfied that for the purposes of Order 11 Rule 1(g) which appears in identical terms in the rules of 1905, 1962 and the present rules injunction encompasses statutory injunctions whatever may be the statute in which they have their origin. Even if that were not the case it is the function of procedural law to give effect to the intent of the Oireachtas. Further the Courts must construe the rules widely. If it is the intention of the Oireachtas, and I am satisfied that it is, that persons resident outside the jurisdiction with assets inside the jurisdiction which represent the proceeds of crime should be subject to the procedures of the Act then I am satisfied that it is the duty of the Court to give effect to that intention and if necessary have resort to the inherent jurisdiction of the Court pending the introduction of appropriate rules of procedure to give effect to the intention.

21. This being the case it is not necessary for me to determine whether the injunctive reliefs provided for in the Proceeds of Crime Act 1996 sections 2 and 3 are in the nature of ancillary relief similar to the Mareva injunction sought in Caudron .v. Air Zaire or substantive reliefs such as the injunctive relief sought in Joynt .v. M’Crum . There are now a very wide range of statutory injunctions granted as a matter of regularity by the Courts: see discussion in Equity Doctrines and Remedies, Meagher, Gummow and Lehane at paragraph 2.133. For present purposes it is sufficient if I adapt to the circumstances of the present case the test for the grant of an injunction in aid of a statute posed by Ungoed-Thomas J in Duchess of Argyle .v. Duke of Argyle [1967] Ch 302 - does the statute manifest an intention to confer a civil right on the plaintiff: if so the possibility of an injunction arises. Again, in King .v. Goussetis [1986] 5 NSWL 89 it was held that the appropriate test for determining whether or not an injunction should be granted is to have regard to the nature, scope and terms of the statute - it is a question of statutory interpretation whether an injunction should be granted or not. The statute in issue here creates a statutory right to an injunction to preserve the assets said to be the proceeds of crime. It was not necessary that the statute should do so as in the ordinary course the Court would have jurisdiction to grant interim and interlocutory injunctions in aid of the statutory right created by the Act in s.4, the right to have a disposal order made. The statute does not regard the orders pursuant to sections 2 and 3 as identical in nature to an ordinary interim or interlocutory injunction in so expressly providing for them and in providing for the evidence which must be adduced in order to obtain the same and in removing them from the ordinary regime laid down in Campus Oil . Again, the statute in s.5 provides for orders ancillary to an interim or interlocutory order under the Act and this suggests to me that these orders are not to be regarded as identical to interim or interlocutory orders made under the ordinary jurisdiction of the Court. Equally however it must be said that the orders are not identical to what would ordinarily be regarded as the substantive relief sought such as a permanent injunction or an award of damages or in the present case a disposal order under s.4 should an application for the same be made. That statutory interim and interlocutory injunction is a creature sui generis. Whilst I accept that it is not necessary or appropriate (as Finlay CJ remarked) that where an interim or interlocutory injunction is sought ancillary to substantive relief that the same should be claimed in the indorsement of claim to the plenary summons it is in my opinion appropriate to claim the statutory interim or interlocutory injunction under the Proceeds of Crime Act in the indorsement of claim and to do so by reference to the statutory origin of the jurisdiction to grant the same. Applications for interim and interlocutory injunctions pursuant to the Proceeds of Crime Act 1996 sections 2 and 3 thereof while not part of the substantive relief are sought pursuant to a specific statutory entitlement and I am satisfied differ in substance from interim and interlocutory relief as normally understood albeit that they are not the ultimate substantive relief sought in the action. To hold otherwise would be to fail to give effect to the clear intention of the Oireachtas. As to my discretion to make the order under Order 11 Rule 1 it is clear that any order which the Court may make in this matter will be enforceable as the assets listed in the schedule to the plenary summons are within this jurisdiction. Further, the Act extends to the proceeds of crime where the crime was committed abroad: DPP & Ors .v. Hollmann & Ors O’Higgins J (unreported 29th July, 1999).

22. In summary I am satisfied that an interim injunction under s.2 and an interlocutory injunction under s.3 of the Proceeds of Crime Act, 1996 do not have the characteristics of mere ancillary relief in the sense of the relief sought in Caudron .v. Air Zaire but rather are sui generis having been created expressly by statute. Statutory injunctions come within the ambit of Order 11 Rule 1(g). Having regard to the clear intention of the Oireachtas in creating these statutory injunctions namely to preserve assets in respect of which an order pursuant to s.4 of the Act may be sought it is the duty of the Court to give effect to that intention. Orders under the Proceeds of Crime Act s.2 and s.3 having regard to the true construction of the Act do not amount to mere interim or interlocutory relief and so are not affected by the judgment of the Supreme Court in Caudron & Ors .v. Air Zaire . If I am wrong in this then there is a conflict between the Rules of Court and the Proceeds of Crime Act 1996 on its true construction which confers upon the Court that jurisdiction necessary to give effect to the Act or in the alternative the Court under its inherent jurisdiction may make such an order for the purpose of giving such effect.

23. Accordingly I refuse to set aside my order giving liberty to the Plaintiff to serve notice of the plenary summons herein out of the jurisdiction.