Neutral Citation No: [2005] IEHC 125
Among the reliefs sought in the Plenary Summons herein are orders pursuant to the Proceeds of Crime Act 1996 section 2 (an interim order) and section 3 ( an interlocutory order). By order made on the 30 th April 2003 an interim order pursuant to section 2 of the Act was made. The Plaintiff delivered a Statement of Claim on the 11 th July 2003. A Defence and Counter Claim was delivered on the 22 nd November 2004. A Reply and Defence to Counter Claim was delivered on the 6 th December 2004. The matter comes before me on foot of two Notices of Motion the first seeking an Order for Discovery pursuant to Order 31 Rule 12 of the Rules of the Superior Courts and the second seeking an Order pursuant to Order 40 Rule 12 of the Rules of the Superior Courts and/or the inherent jurisdiction of the Court striking out such of the content of an Affidavit of T.F. sworn on the 30 th April 2003 and set out at paragraphs 9 and 10 thereof. I propose dealing with the second Motion first as
if the same is determined in favour of the Defendant it will not be necessary to deal with the first.
The Proceeds of Crime Act 1996 section 8 provides in relation to proceedings under section 2 of the Act that where a member or an authorised officer states on Affidavit that he believes either or both of the following –
The Court if it is satisfied that there are reasonable grounds for the belief the statement shall be evidence of the said matters.
On the application for an Order under section 2 the Plaintiff relied upon an Affidavit of Thomas Feighery in which it was deposed as follows –
In the Affidavit grounding the application Claire O'Regan, Solicitor, deposes in relation to paragraph (9) aforesaid that at the date of the theft on the 26 th February 2004 the motor vehicle in question was not owned by the Defendant. She further deposes that the threats and intimidation of R.L. by J.M. and the failure of witnesses to attend the trial of J.M. and D.L. in the belief of the Deponent that they were intimidated bear no relevance to the Plaintiff's claim against the Defendant, that they are prejudicial and scandalous and represent an abuse of process.
The scheme of section 8 of the Proceeds of Crime Act 1996 is that evidence on Affidavit may be given of the matters set out at (i) and (ii) above on an application under section 2: however on an application under section (iii) oral evidence is required. Accordingly the Affidavit of T.F. while admissible on the application under section 2 of the Act is not admissible or relevant on the application under section 3 of the Act. At the time the Affidavit was sworn and at the time it was relied upon in Court the averments complained of were relevant to the application for an Order under section 2 of the Act. They were not then prejudicial or scandalous. In these circumstances that proceedings having now advanced to the stage where the Plaintiff is seeking an Order under section 3 of the Act this does not make them irrelevant, prejudicial or scandalous: they have no relevance to the section 3 application but form part of the proceedings to date.
However the Defendant raised a Notice for Particulars on the 25 th July 2003. The Plaintiff replied to the same on the 6 th October 2003 and in its reply, without prejudice to a contention that six of the seven matters raised were not appropriate matters for particulars, incorporated the Affidavit of T.F. into the Pleadings. It is quite legitimate whether in a Pleading or in a Reply to Particulars to incorporate another document by reference. It is necessary therefore to consider whether in so incorporating the averments objected to into his Reply to Particulars it is appropriate to grant to the Defendant the relief sought on the Notice of Motion. Section 8 of the Act provides that on an application under section 3 a member or an authorised officer of the Bureau may give oral evidence of belief in relation to the matters which I mention at (i) and (ii) above and if the Court is satisfied that there are reasonable grounds for the belief the statement of belief shall be evidence of the said matters. Thus relevant to the Court on an application under section 3 are both the belief and the grounds of the belief. The averments in paragraphs (9) and (10) of T.F's Affidavit if proved in oral evidence are relevant as grounds for the belief of T.F. in relation to the matters at (i) and (ii) above. Paragraphs (9) and (10) of his Affidavit having been incorporated into the reply to particulars are appropriate to be opened to the Court as part of the Pleadings: however relevant to the Court for its determination will be the oral evidence of T.F. and such other witnesses as may be called to establish by evidence the matters contained in paragraphs (9) and (10). Insofar as the averments are incorporated into the particulars furnished by the Plaintiff they obtain no special status by reason of the circumstance that they have been deposed to by him on the application under section 2 of the Act. I am accordingly satisfied that the Defendant is not entitled to the relief which he seeks on this Notice of Motion.
On the Motion which I first mention the Defendant seeks an Order for Discovery pursuant to Order 31 Rule 12 of the Rules of the Superior Courts in respect of the following categories of documents –
I have considered the Pleadings herein. In the light of the same and the issues therein disclosed I order discovery in the following terms –
I have modified slightly the terms in which discovery was sought by the Applicant having regard to the pleadings. I do not see the documents sought at (h) as relevant to the issues as defined in the Pleadings.
I will hear Counsel as to the appropriate Order for costs to be made in respect of each of the Motions.