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  • agreed fully I gratefully adopt that exposé This court affirmed the findings of the learned High Court judge and rejected the appeal In the Supreme Court in analysing and considering this aspect of the matter Fennelly J considered the scope and ambit of the appeal recognising that this was not an easy thing to do in the case of a lay litigant as such a claimant does not enjoy the same advantage as a litigant represented by a solicitor or counsel He drew attention to the propensity of the plaintiff to make accusations of impropriety against a number of persons including judges He identified the plaintiff s reliance on the Kennedy letter as supporting his contention that it established a conspiracy existing between the defendant Kent Carty and the late Mr Clancy under which the late Mr Clancy gave false evidence accepting responsibility Counsel on behalf of the late Mr Clancy objected to the admission of what became known as the Kennedy letter based on well established principles of law but accepted that the court should rule on the matter after hearing the appeal under all other headings The letter was therefore examined for the purposes of determining its admissibility as new evidence on the hearing of the appeal having regard to the principles enunciated in Murphy v Minister for Defence 1991 IR 161 The court examined whether or not it offered support for the appellant s case against the solicitors pointing out however that although the court had expressed certain concerns about the content of the letter its author the defendant in the present proceedings was not a party to those proceedings and had not been heard Fennelly J stated inter alia What support does the Kennedy letter offer for the conspiracy theory that Mr Kennedy together with Mr Clancy and the two solicitors mentioned arranged that Mr Clancy would accept falsely or otherwise that he would take responsibility for the second The only sentence referable to the evidence given by Mr Clancy was Mr Clancy advised me that as far as he was concerned the claimant did quite well and he was in a position to give evidence that the claimant was advised of the situation I cannot find any evidence whatsoever in this sentence to support Mr McMullen s conspiracy theory Most importantly the Kennedy letter does not offer any support at all for the proposition that Kent Carty Co were party or privy to any arrangement regarding Mr Clancy s evidence The evidence of Ms Madigan and of Mr Carty given in the High Court remains undisturbed and there is nothing in the Kennedy letter to displace it Having examined the letter by reference to the appropriate test for admissibility Fennelly J held For these reasons I do not believe that this letter should be admitted in evidence on the appeal It clearly fails to satisfy the second heading of the test laid down in Murphy v Minister for Defence namely that t he evidence must be such that if given it would probably have an important influence on the result of the case In my view it could not have made any difference The court also rejected the admission of that evidence as failing another test set down in the case of Murphy v Minister for Defence supra that is to say that the evidence sought to be admitted was not such that it could not have been obtained with reasonable diligence for use at the trial In consequence the letter was not admitted as part of the appeal at all and the appellant was unsuccessful in the Supreme Court his appeal failing under all headings The Present Proceedings It is against that very lengthy and almost continuous series of litigation that the application for inspection of documents contained in the second part of the first schedule to the affidavit of the defendant in the current proceedings must be considered Mr McMullen is a lay litigant and has been a lay litigant for a considerable period of time While he was originally represented in the early proceedings his pleadings in the action against the estate of the late Mr Clancy are not easily understood and the same can be said of the statement of claim filed in the present proceedings In the proceedings against Kent Carty Co a negligence action the central allegation against those defendants was that they had failed to ensure that the terms of the settlement permitted the plaintiff to re enter his nuisance action against his lessor In the subsequent proceedings it was inter alia that there was some type of a conspiracy between the solicitors the late Mr Clancy and the present defendant who was not even a party of those proceedings In the present proceedings on my reading of the pleadings the allegation made against the defendant is that firstly he used and employed undue influence improper incentives and coercion to induce the late Mr Clancy to collaborate and undertake to give false evidence and secondly that he arranged a conspiracy which was successful in defeating the plaintiff s claim and which led to the procurement of a judgment by those unlawful means namely the judgment of Carroll J The defendant in his defence denies that he improperly or otherwise secured the collaboration of the late Mr Clancy or entered into any arrangement or understanding of any nature with him The defendant admits that on the 17th May 1989 he wrote the letter to his principals Admiral Underwriting Agency Ireland but does not admit its contents He alleges that the plaintiff without authority took possession from the court registrar of a confidential file belonging to the defendant the estate of the late Mr Clancy which included the letter numbered 174 above but does not plead what legal consequences flow from that allegation For the purposes of deciding this application I do not consider it relevant The defendant does not plead any form of estoppel in his defence Essentially apart

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  • Plaintiff e Damages for the distress and shame heaped upon this Plaintiff in losing his Action against his former Lawyers in whom he had placed such trust the extreme worry of being threatened daily with a Hearing in Bankruptcy by his Defendant with his Bills which this Defendant was at all times fully aware had been attained fraudulently and with the unfair advantage of the knowledge that as early as May 1989 the compliance of the Plaintiff s former Counsel Mr Clancy had been achieved with little chats incentives and improper coercion f General Damages for the complete disruption of the Plaintiff s life and well being 10 The entire of the plaintiff s claim therefore is based on the contention that the defendant improperly sought to influence the outcome of his negligence action against Kent Carty Co by influencing Mr Clancy to give evidence in their defence and that the evidence he would give would accept that he Mr Clancy rather than the solicitors were responsible for the error in the settlement document 11 By an order of 18th October 2001 the High Court O Caoimh J struck out the appellant s present claim By an order of 27th July 2005 this Court allowed the appellant s appeal against that order The appellant was allowed to proceed with his claim 12 On 6th July 2006 the Master made an order directing the defendant to make discovery of the following documents 1 The Defendant s litigation file in the proceedings in which he acted for Kent Carty 2 The Defendant s letter to Admiral Ireland in May 1989 togther with any subsequent correspondence between the Defendant and Admiral Ireland concerning the content of same or of any follow up contact between the Defendant and Mr Clancy 3 Any document recording the communication by the Defendant of all or any part of the said letter whether by letter or conversation to any person other than Mr Clancy prior to July 1999 4 Any correspondence or memoranda concerning evidence to be adduced on behalf of Kent Cart at the hearing in May 1992 13 The Defendant s affidavit of discovery was sworn on 11th October 2006 The second part of the first schedule to the affidavit lists documents 162 to 491 under the description Letters drafts and memorandum made prepared on a confidential Solicitor Client basis during the preparation and defence of the proceedings High Court Proceedings Michael Colin Geoffrey McMullen Hugh A Carty John P Carty Pamela Madigan and Rocca Caira practising as Kent Carty Company Solicitors cases for the opinion of counsel opinions of Counsel and instructions to Counsel prepared and given in anticipation of and during the progress of this action 14 The defendant in his affidavit claims privilege in respect of these documents on the grounds that same consist of privilege sic communications between myself and my client Counsel and witnesses Counsel s advice on drafts prepared in connection with and for the purposes of the plaintiff s action against Kent Carty Co 15 It should be noted however that the letter of 17th May 1989 is expressly admitted on the face of the defence though its contents are not admitted Murphy J ordered inspection of that document The defendant has withdrawn its appeal against that order Thus that document is available to the plaintiff insofar as discovery makes it so 16 By notice of motion dated 9th March 2007 the plaintiff sought full and unimpeded access to all the documents listed in the first part of the second schedule In his grounding affidavit referred to the letter of 17th May 1989 He said that it confirmed his worst fears that pressure and threats had been applied to his counsel ro give evidence at all and indeed the evidence which he had averred He continued When Mr Kennedy met Mr Clancy in April 1989 Mr Clancy was still in your deponent s employ and for Mr Clancy to agree to act against his Client s interests and in fact give a version of the events in 1985 though accepted in Primary Evidence in the High Court by Ms Justice Mella Carroll was entirely new to your Deponent would per se indicate coercion 17 In the same affidavit as in his argument before the High Court and this Court the Plaintiff maintained that there is an irreconcilable conflict between the evidence given by both Ms Pamela Madigan and Mr Carty and the contents of the privileged section of the affidavit of discovery 18 Murphy J held that no basis for fraud or illegality or for a claim based on a conspiracy or arrangement had been established He held that privilege had been waived in respect of the letter of 17th May 1989 Otherwise he upheld the claim of privilege Before ruling finally he inspected three documents which appeared to be connected with the letter of 17th May He found no evidence of undue influence improper incentives and or coercion to induce the plaintiff s counsel to collaborate or undertake to give evidence in the action against Kent Carty Co 19 The essence of the case for the appellant on this appeal is that he has produced evidence that privilege is being used to hide and cover up unlawful and as he says nefarious activities Those activities are very clearly specified He says that Mr Clancy to his own total surprise gave evidence against him in the negligence action brought by him against Kent Carty Co That evidence defeated his claim It was procured by the actions of the defendant who conspired and agreed with Mr Clancy or offered incentives to or brought pressure to bear on Mr Clancy to give that evidence That is the gist of his action 20 In support of his application to be allowed to inspect otherwise privileged documents he relied in essence on the existence of an irreconcilable conflict between the evidence given respectively by Hugh A Carty and Pamela Madigan in the action

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  • difficult trading conditions from the beginning its greatest losses were incurred in the first two years of trading Until shortly before the Company was wound up he was firmly of the belief that it would be possible to trade out of its difficulties as indicated by the extent to which he was prepared to support the Company financially While he has no other business interests in Ireland he has substantial business interests including company directorships in Canada Should he be restricted as a director this would have severe repercussions on his business interests in circumstances where he has always acted honestly and responsibly in relation to the conduct of the Company s business JUDGMENT OF THE HIGH COURT The learned High Court judge was satisfied that the collapse of the Company was not due to any dishonestly on the part of the appellants Rather the collapse of the Company resulted primarily from the decision to locate in Parnell Street The Company s business of bar disco bar and off licence was run in a responsible manner in that there was a competent bookkeeper who kept detailed and up to date financial records which were the source of management information available to the appellants and to that extent the learned trial judge was satisfied that the respondents acted responsibly in the affairs of the Company In relation to the lap dancing club however the learned trial judge did not consider adequate and in accordance with good corporate governance the manner in which the records were kept and the manner in which cash receipts were dealt with and in this regard he had this to say In my view there is a heavy onus upon directors of a company which generates a significant amount of cash transactions to ensure that records and systems within the company are sufficient to ensure that it is possible to track those cash receipts through the records of the company including the bank accounts and to avoid an otherwise inevitable conclusion that cash received was not recorded and was used to defray expenses which also are not properly vouched and recorded either by way of wages to employees sub contractors suppliers directors drawings and such like He considered the daily dance sheets of which thirteen only were recovered from the club manager as inadequate In relation to the club aspect of the Company s business he was not satisfied that the appellants acted responsibly He did not consider the seizure of documents by the Gardai or the loss of documents by the club manager an adequate explanation The lack of an appropriate paper trail in respect of the cash transactions was not however the cause of the collapse Finally the learned trial judge did not consider the explanation offered for failing to file the annual return sufficient and found that the appellants had not acted responsibly in relation to the same The law The Companies Act 1990 section 150 provides as follows 150 1 The court shall unless it is satisfied as to any of the matters specified in subsection 2 declare that a person to whom this Chapter applies shall not for a period of five years be appointed or act in any way whether directly or indirectly as a director or secretary or be concerned or take part in the promotion or formation of any company unless it meets the requirements set out in subsection 3 and in subsequent provisions of this Part the expression a person to whom section 150 applies shall be construed as a reference to a person in respect of whom such declaration has been made 2 The matters referred to in subsection 1 are a That the person concerned has acted honestly and responsibly in relation to the conduct of the affairs of the company and that there is no other reason why it would be just and equitable that he should be subject to the restrictions imposed by this section The Companies Act 1990 section 150 was considered in La Moselle Clothing Limited In Liquidation and Rosegem Limited In Liquidation v Soualhi 1998 2 I L R M 345 Shanley J held that the primary purpose of the section is the protection of the public from persons who by their conduct have shown themselves unfit to hold the office of and discharge the duties of a director of a Company and in consequence represent a danger to potential investors and traders dealing with such companies The objective is to protect the public and not to punish the individual director Shanley J went on to say Thus it seems to me that in determining the responsibility of a director for the purposes of section 150 2 a the court should have regard to a The extent to which the director has or has not complied with any obligation imposed on him by the Companies Acts 1963 1990 b The extent to which his conduct could be regarded as so incompetent as to amount to irresponsibility c The extent of the director s responsibility for the insolvency of the company d The extent of the director s responsibility for the net deficiency in the assets of the company disclosed at the date of the winding up or thereafter e The extent to which the director in his conduct of the affairs of the company has displayed a lack of commercial probity or want of proper standards In addition to requiring a director to demonstrate that he acted responsibly the director must also satisfy the court that there are no other reasons why it would be just and equitable to restrict him from acting as a director of the company A common example of a circumstance in which a director might fail to satisfy the court that there are no other such reasons is where he fails to co operate with the Liquidator Specifically in relation to the keeping of accounts in Business Communications Limited v Keith Baxter and Another unreported the

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  • persons whom I now know to be Ms Claire Behan of 44 Richmond Park in Bray and Ms Mary Hyland of 39 Ardmore Wood in Bray were also present at the scene when Garda Spillane and myself arrived 5 I subsequently discovered that the vehicle with the registration number 00 D 81303 was registered to Rachel O Brien who is a sister of the applicant herein I therefore went to the O Brien residence at 89 Cloverhill in Bray and spoke to Rachel O Brien I informed her that I was investigating the accident that had taken place on Herbert Road and that it was alleged that her brother the applicant herein was driving the said vehicle at the time I asked her to let me view the car She replied that it was in the garage and that we could view it there While I was viewing it I removed from my notebook the piece of paper given to my by Paddy Moorehouse The number on that piece of paper was the same as the registration number of the car I was viewing that is to say 00 D 81303 I wrote that number in my notebook and replaced the said piece of paper in my notebook Paddy Moorehouse informed me that the number was written on that piece of paper by a woman who claimed to have witnessed the accident She was not at the scene when I arrived and Mr Moorehouse was unable to give me any details about her 6 I then explained to Rachel O Brien that I intended to have the car technically examined She stated that the applicant herein was down the country and that she would not let me take the car away for examination unless I could produce a warrant authorising me to do so 7 Subsequently having sworn an information before Jane Murphy a Peace Commissioner I obtained a warrant under section 106 of the Road Traffic Act 1961 as amended I returned to the aforementioned address at Cloverhill and seized the vehicle with the said registration number for technical examination While we were there the applicant appeared around a corner and said Rachel Rachel what s going on I told youse they wouldn t wait a week that they d be up later 8 I say that on Monday August 24 2003 the car with registration number 00 D 81303 and the car being driven at the time of the accident by Paddy Moorehouse a Toyota Avensis registration number 03 W 2715 were technically examined by Detective Garda Pat Scully a scene of crime examiner Photographs taken during that examination have been disclosed to the defence 9 I say that on August 30 2003 I went to the address at 89 Cloverhill in Bray the home of the applicant I informed him that I was investigating an accident in which it was alleged that he was driving a motor car with the registration number 00 D 81303 and had deliberately knocked down Stephen Downey causing him injury at Herbert Road in Bray on Sunday August 24 2003 I arrested him for an offence contrary to section 3 of the Non Fatal Offences Against the Person Act 1997 10 The applicant was conveyed to Bray Garda Station where he was detained pursuant to the provisions of the Criminal Justice Act 1984 section 4 The applicant was interviewed by Garda O Connor and Garda McGrath The interview was videotaped A question and answer session was conducted and the answers were written down The record was read back to the applicant He signed the record and his signature was witnessed by Garda McGrath and myself At 11 25 a m on that date the applicant was photographed fingerprinted and palmprinted by Garda McGrath I was present when the member in charge Sergeant Jim Mannion charged the applicant on Charge Sheet 203998 with an offence contrary to section 3 of the Non Fatal Offences Against the Person Act 1997 11 I say that a short time after the traffic accident described above I was transferred to another Garda Station Upon my relocation I mislaid the piece of paper which had been handed to me at the scene of the accident and upon which the aforementioned registration number was written However I did enter the said number in my notebook on August 24 2003 the date of the incident itself I have carried out extensive searches for the piece of paper in question to but to no avail 12 The learned trial judge held that the potential unfairness caused by the absence of this piece of evidence is not something which can be eliminated by anything which the trial judge may be able to say to the jury He doubted whether the potential prejudice to the applicant could be eliminated by the prosecution deciding not to call Paddy Moorehouse to give evidence If he did not give evidence of visual identification his credibility as a prosecution witness would not become an issue The applicant wishes Paddy Moorehouse to be called to give evidence so that he can be questioned about the disappearing lady and it can be established for the jury that because of the animosity between his family and that of the applicant he had fabricated the piece of paper to bolster the case against the applicant The applicant also believes that the other two witnesses are associates of Paddy Moorehouse 13 The learned High Court judge considered whether the applicant is disadvantaged to the point of unfairness by the absence of the piece of paper and concluded that he must be since without the opportunity of establishing that the writing is indeed that of Mr Moorehouse the applicant has no way other than denial in the witness box uncorroborated by any objective testimony that he was driving on the occasion If the conspiracy theory was substantiated I believe that its effect would not be confined to Mr Moorehouse s evidence but has

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  • as well as a further High Court decision of Laffoy J referred to below that the term shadow director is not a category of director He says that there is very good reason why a person may not be qualified to be a director and yet still fall to be a shadow director A finding that a person is a shadow director is a finding of fact about the actions of that person that he directed the activities of the formal directors The respondent cites the example of an undischarged bankrupt who cannot lawfully be appointed a director but who could nonetheless direct all the dealings of the formal directors and give all instructions as to how the company should be run and yet never fear any repercussion if the company became insolvent Such a person could become involved in the management of subsequent companies secure in the knowledge that he could not be restricted from being so involved That interpretation would not protect the public from harmful behaviour of those controlling companies Conclusion 21 I would say immediately that there seems to me to be no merit independently of the first question in the appeal with regard to the second preliminary point of law O Leary J was absolutely correct in holding that there is no reason to interpret the provisions of section 150 as making any distinction between Irish and foreign bodies corporate No such reason has been advanced on the appeal The real issue arises under the first question namely whether a body corporate can come within section 150 at all If an order cannot be made against a corporate shadow director the second question will not arise 22 I am also satisfied that the learned judge was correct in his primary conclusion on the interpretation of the relationship between section 150 of the Act of 1990 and section 176 of the Act of 1963 The appellant s case is that it follows from the prohibition of a body corporate from being a director of a company that a body corporate cannot be a shadow director for the purposes of section 27 1 of the Act 23 That argument is based on the fallacy that section 27 is concerned with persons who formally hold the position of director The learned judge rightly held that shadow directors are not a subset of the office of directors but entirely separate The section is addressed to persons who in many if not most cases will not hold any formal title as director The shadow director is a person in accordance with whose directions or instructions the directors of a company are accustomed to act A finding that a person is a shadow director is a finding about how that person is accustomed to behave in relation to the company It is quite unrelated to and distinct from the observance of any formalities concerning that person s appointment or election as a director No such formalities are required There is nothing inconsistent about finding a person to be a shadow director for the purposes of section 27 and the fact that the person is legally ineligible to hold the position of director 24 The learned judge was quite right to test the proposition by reference to the prohibition in section 183 of the Act of 1963 on an undischarged bankrupt from becoming a director without the leave of the court In fact that section makes it an offence for an undischarged bankrupt to act as a director So presumably the election of an undischarged bankrupt may conceivably be valid though unlawful Nonetheless if the appellant s submissions were correct an undischarged bankrupt would be free to direct all the dealings of the formal directors and give all instructions as to how the company was to be run without committing any offence contrary to section 183 and without being treated as a shadow director for the purposes of section 27 and hence liable to the imposition of a restriction pursuant to section 150 25 Finally Laffoy J considered whether a body corporate could be a shadow director in her judgment in Fyffes plc v DCC plc and others 2005 IEHC 477 Judgment 21st December 2005 In that judgment the learned judge applied the reasoning of O Leary J in his judgment in the present case Following a detailed analysis of the statutory provisions she concluded as follows The word director is defined as including a shadow director within the meaning of s 27 The drafting technique employed in Part V in my view was not intended to and does not affect the proper interpretation of s 27 By virtue of s 11 c of the Act of 1937 the word person in s 27 is to be construed as including a company unless the contrary intention appears I can discern no contrary intention in Part V of the Act of 1990 Interpreting the word person in s 27 as importing a company is not in any way inconsistent with s 176 of the Act of 1963 The latter provision precludes a company from having a body corporate as a director the former identifies the type of person who by reference to the manner in which he acts vis à vis the company is to be treated as a director 26 I would respectfully agree with that statement of the law I should add that her conclusion with regard to the effect of the Interpretation Act on section 27 does not determine the interpretation of section 150 discussed below 27 Thus a body corporate may be a shadow director for the purposes of section 27 Next it is necessary to consider Chapter I of Part VII of the act Section 149 2 provides This Chapter applies to any person who was a director of a company to which this section applies at the date of or within 12 months prior to the commencement of its winding up 28 The words person who was

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  • to me that the provision contained in section 149 5 that This Chapter applies to shadow directors as it applies to directors refers only even on a proper interpretation of that provision alone though in context to human shadow directors and not to corporate shadow directors I am of this view because of the words as it applies to directors The heading of the chapter i e Chapter I of Part VII reads Restriction on directors of insolvent companies The form of order contemplated by section 150 1 includes a prohibition against acting as a director and indeed that is the first prohibition As pointed out by Fennelly J section 176 of the Companies Act 1963 prohibits bodies corporate from being company directors I think that neither the Oireachtas nor the draftsman of the Act ever adverted to the issue of whether a company could be a shadow director It has since been held by O Leary J and by Laffoy J that it can be and I agree But I am reasonably satisfied that even in section 149 5 it was not intended that the chapter would in any way apply to corporate shadow directors If it were otherwise it is difficult to see how the chapter could apply the same way as it applies to directors as companies cannot be directors A second point which seems to me to be relevant and in support of the judgment of Fennelly J is the form of order which would be appropriate under section 150 1 in the case of a human shadow director There is nothing in the wording of section 150 1 to indicate or indeed permit that the court order would in addition to prohibiting a shadow director from being a director for the specified period should also prohibit him from being a shadow director If however the respondent is correct in arguing that an adapted order can be made under section 150 1 the logical adaptation would be to prohibit the company from being a shadow director But if it would never have been contemplated that a human shadow director or indeed a director should be expressly prohibited from being a shadow director then it would be completely inconsistent to make such an order in relation to a corporate shadow director This would seem to me to further reinforce the view adopted by Fennelly J The only alternative argument might be that in the case of a corporate shadow director the prohibition would be confined to its acting as secretary or being concerned or taking part in the promotion or formation of any company unless it met the statutory requirements but that would seem to be a major alteration to the intention of the subsection given that it is primarily directed towards acting as director Admittedly O Leary J did seem to hint that that might be appropriate I use the word hint because one of the difficulties in this case is that inevitably O Leary J

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  • It was qualified by his later finding that Mr O Brien bore the expense which was in fact the evidence 15 There was a particularly sharp conflict of evidence in respect of the last payment made by the Mr Horan prior to the purchase of the winning ticket in January 2001 The evidence for the appellants in effect that of Mr O Brien was to the effect that Mr Horan had paid up to April 2000 and that he made no further payment Part of that evidence was that 72 was owed by Mr Horan to Mr O Brien in October 2000 Mr O Brien gave evidence that he confronted Mr Horan in Stenson s bar in October 2000 but that Mr Horan had refused to pay and had told him using a common place obscenity to fuck off with his lottery 16 Mr Horan denied this The meeting in October he said took place in Mr O Reilly s pub and although Mr O Brien remarked on Mr Horan being in arrears again paid 30 of which 27 represented nine weeks arrears the balance being left with Mr O Brien to buy a drink He and several witnesses said that he had not used the language attributed to him 17 The learned trial judge resolved this important conflict of fact as follows I find on the balance of probabilities that the facts are broadly as outlined by Mr Horan and for the reasons indicated earlier this means that I find for the plaintiff I accept that Mr Horan is broadly correct and in particular that the substance of the meeting in early October is as he has stated 18 It is common case and could not in any event be disputed that this finding of fact based as it was on the live evidence of a number of witnesses heard by the learned trial judge cannot be questioned on appeal It cannot be contested therefore that Mr Horan paid any arrears due by him up to October 2000 that this was accepted by Mr O Brien and that Mr Horan was not informed that he was out of the syndicate 19 The essence of the conclusion of the learned trial judge flowing from the evidence that Mr O Brien permitted the build up of arrears and upon which he decided the case was as follows On that basis and whatever the views of the other defendants they allowed Mr O Brien to be the manager of the syndicate Mr O Brien allowed arrears to build up and therefore it seems that all the defendants are bound by the arrangements he made Other matters of fact 20 Following the payment of arrears up to date in October 2000 Mr Horan made no further payments prior to the purchase of the winning ticket Nor was he asked for any payments 21 In addition it is clear that from October Mr O Brien ceased to invest 7 50 per week in tickets so that on 6th January 2001 only 6 00 was purchased 22 The High Court also heard evidence regarding a transaction between Mr Horan and Mr Joyce concerning the purchase of a tractor The only conceivable relevance of the tractor was that it might have cast light on the credibility of one or other of the parties In the event the learned judge obtained no assistance from it 23 The learned trial judge in his search for a basis for resolving the dispute attached importance to the fact that there were occasional very small syndicate winnings and that Mr O Brien had not dealt with the disposal of those sums It appears that Mr O Brien had from time to time used those winnings to purchase extra lines which the learned judge found it difficult to justify He commented in addition that Mr O Brien had offered no explanation as to why some arrangement was not made as to the winnings in view of his claim that Mr Horan had left the syndicate 24 For my own part I find it difficult to see the relevance of the latter issue to the crucial question of whether Mr Horan remained a member of the syndicate in January 2001 I find it entirely unsurprising that it was not considered worthwhile to distribute winnings as small as appears on the evidence to have been the case Even if there was some irregularity in respect of the accumulated winnings and I do not see that there was any significant irregularity in the light of Mr O Brien s assigned role there was equally an irregularity on the part of Mr Horan in failing to make any further payments after October I do not think the issue of accumulated winnings assists in the resolution of the issue The appeal 25 The appellants make three essential points in their notice of appeal namely Mr Horan had not contributed anything to the purchase of the winning ticket It was common case that the bet placed by the syndicate was 6 00 which represented the contributions of only four syndicate members not including Mr Horan The non payment of advances up front by Mr Horan and the acceptance of payment in arrears could not alter the contract entered into when the contract was formed whereby the parties agreed to pay 3 per week in advance 26 The appellants relied in particular on the evidence given at trial by a representative of the lottery who produced the print out of the electronic record showing that the winning ticket of 6th January 2001 was part of a 6 purchase of eight lines 27 In their written submissions the appellants argue that the original contract could not be varied in the absence of mutual agreement between the parties The appellants cited the decision of McCracken J in Clarke v Kilternan Motor Co Ltd High Court unreported 10th December 1996 that on the facts of that case there had had not been

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  • behalf of the appellants Garda John O Leary swore an affidavit in like terms to his statement of evidence contained in the Book of Evidence JUDGMENT OF THE HIGH COURT By Order of the High Court on the 17th January 2007 the appellants were restrained from further prosecuting the respondent on the three charges From this judgment the appellants appeal NOTICE OF APPEAL The grounds of appeal relied upon by the appellants are as follows 1 That the learned trial judge erred in law in holding that the respondent ran a serious risk of not getting a fair trial by virtue of the fact that the vehicle driven by the respondent and a tyre from the said vehicle which is alleged to have been excessively worn were not preserved for inspection by or on behalf of the respondent prior to the trial of the respondent 2 That the learned trial judge erred in law and in fact by failing to give any or any adequate consideration to the existence of photographs of the said vehicle taken by a member of the Gardai who was a Public Service Vehicle Inspector at the scene of the collision which led to the prosecution here 3 That the learned trial judge erred in law and in fact in holding that the Gardai failed in their duty to preserve relevant evidence for the purpose of the prosecution herein 4 That the learned trial judge erred in law and in fact in failing to dismiss the application for orders of prohibition and declaration by way of judicial review by virtue of the unwarranted delay on the part of the respondent in making enquiries about the availability of the said vehicle and tyre for inspection 5 That the learned trial judge erred in law and in fact in failing to dismiss the said application for orders of prohibition and declaration by way of judicial review on account of the failure of the respondent to apply promptly for leave to proceed by way of judicial review in accordance with the terms of Order 84 of the Rules of the Superior Courts 1986 THE APPELLANT S SUBMISSIONS The appellant s submissions as modified by supplemental submissions and the submissions before this court are concerned solely with the issue of whether there is a real risk of an unfair trial It was submitted that critical in the case against the respondent is that all evidence points to the MAN truck having been on its wrong side of the road at the time of impact The court was referred to the evidence of the tyre mark on the ground close to the line of impact the position of the vehicles after impact and the distribution of debris along the respondent s incorrect side of the road as evidence of the impact having occurred on the respondent s incorrect side of the road The extensive damage to the front of the Citroen Saxo was concentrated on the driver s side In the course of argument it was conceded and an undertaking given that the Public Service Vehicle Inspector would not be called to give evidence in relation to damage to the MAN truck nor would the photographs of the MAN truck be put in evidence on the charges of dangerous driving causing injury and dangerous driving simpliciter The chronology set out above was not disputed He would be called to give evidence on the charge relating to the tyre which charge will be dealt with at the same time as the other charges but it was not suggested and would not be suggested that the condition of that tyre had any relevance to the accident SUBMISSIONS ON BEHALF OF THE RESPONDENT The respondent relied upon the decisions of this court in Bowes v Director of Public Prosecutions McGrath v Director of Public Prosecutions 2003 2 I R 25 Savage v D P P 2008 I E S C 39 and Ludlow v D P P 2008 I E S C 54 It was the duty of the appellant to preserve the MAN truck in its damaged condition to afford the respondent an opportunity to have the same inspected and likewise the allegedly defective tyre The prosecution case depends upon a reconstruction of the accident and for the purpose of that reconstruction the MAN truck and the allegedly defective tyre were available to the Public Service Vehicle Inspector In their absence it is not possible for an engineer retained by the respondent to reconstruct the accident As a result there is a real risk of an unfair trial on all three charges THE LAW The relevant principles of law are well established In Savage v Director of Public Prosecutions unreported Supreme Court 3rd July 2008 Denham J set them out as follows The following are relevant principles i Each case should be determined on its own circumstances ii It is the court s duty to protect due process iii It is the duty of An Garda Siochána to preserve and disclose material evidence iv The duty to preserve and disclose material evidence is to do so so far as is necessary and practicable v The duty to disclose and preserve as qualified by Lynch J in Murphy v D P P 1989 I L R M 71 cannot be precisely defined as it is dependant on all the circumstances of the case vi The duty does not require the Gardai to engage in disproportionate commitment of manpower and resources vii In the alternative to keeping large physical objects as evidence such as motor vehicles it may be reasonable in certain circumstances for the Gardai to have a forensic report on the object viii The duty should be interpreted in a practical manner on the facts of the case ix If evidence is destroyed the reason for the destruction whether bona fide or mala fide is part of the matrix of the facts but it is not a relevant factor in the test to

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