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  • motion be awarded to the plaintiff Following the making and perfecting of his Order on 10th February 2009 the defendants served a Notice of Appeal on the solicitor for the plaintiff on 3rd March 2009 the last day of the time allowed for the making of such an appeal In the interim the plaintiff s solicitor had written to the defendants solicitor on 18th February 2009 indicating that counsel for the plaintiff would be applying for a date for hearing on 4th March 2009 On that date Quirke J having heard that the motion to set aside was refused listed the case for hearing on 13th May 2009 The solicitor for the defendants then sent a letter for voluntary discovery to the plaintiff s solicitor on 8th April 2009 The request was based on the report of Dr Casey of the examination of the plaintiff on 11th February 2009 but no copy of the report was furnished to the plaintiff s solicitor until 11th May 2009 A further letter for voluntary discovery was sent on 17th April 2009 which contained further categories of documentation sought by the defendants Both requests for voluntary discovery were outside the time prescribed by the Rules of the Superior Courts On 13th May 2009 counsel for the defendants made an application for an adjournment of the hearing due to the fact that his medical expert Dr Casey would not be available on 14th May 2009 should the matter run over to that date On that occasion the issue as to whether or not the defendants should be allowed call medical evidence in relation to the claim arose given that there was no defence filed on their behalf Quirke J adjourned the hearing of the case firstly to 26th May 2009 and thereafter to 14th July 2009 with priority For the purposes of the appeal to this Court Mr Sean Murray has sworn a further affidavit which addresses in somewhat greater detail the reasons for the hitherto unexplained delay in addressing the various procedural steps required to be taken in the office of the Chief State Solicitor He very candidly and fairly acknowledges that there has been excessive delay consisting of a delay from 21st March 2007 being the date upon which judgment as ordered by Herbert J came into effect until 22nd December 2008 the date of issue of the Notice of Motion to set aside the judgment being a delay in the order of twenty one months He accepts full responsibility for this delay and states The only explanation I can offer this honourable court for such delay is that same was due to a combination of pressure of work and oversight on my part and I accept that this does not excuse such a significant period of delay in the circumstances At a later point in his affidavit Mr Murray notes that when the matter was listed for hearing in the High Court personal injuries list on 13th May 2009 the plaintiff s legal advisers in accordance with their letter of 24th April 2009 argued that the defendants ought not to be allowed call any evidence at all in the case Quirke J however indicated that in his view the defendants were entitled to call evidence in relation to issues affecting quantum and the assessment of damages Subsequent to the adjournment of the hearing on 13th May 2009 Mr Murray deposes that as a result of representations made by the first named defendant a different senior counsel was retained in the case and that that senior counsel had a consultation with the relevant garda witnesses involved in the circumstances of both incidents the subject matter of the proceedings Those witnesses indicated at a consultation held on 21st May 2009 their serious concerns about the fact that judgment in default of defence had been obtained and that the absence of a defence amounted in effect to an admission of liability on their part Mr Murray deposed to the fact that the members of the Gardai concerned have communicated to their own legal advisers their concerns that failure to defend the proceedings would damage their reputation as members of An Garda Siochana in the locality where they serve Mr Murray further deposes that if the evidence available to the defendants from the Gardai i e in respect of liability is allowed in evidence and if that evidence is accepted that the defendants have a good defence to the case Any suggestion that the delay might have prejudiced the plaintiff could be overcome by the defendants willingness that the case be tried on 14th July 2009 whereas the defendants would suffer substantial prejudice if deprived of the entitlement to defend the action JUDGMENT OF THE HIGH COURT As indicated above the High Court Cooke J determined this motion by means of an ex tempore ruling delivered on 9th February 2009 The learned High Court judge considered that there had been inordinate and inexcusable delay by the defendants in moving to set aside the judgment obtained on 12th March 2007 and that having regard in particular to the forbearance exhibited by the plaintiff s solicitors in issuing warnings of intention to proceed in the period from May to October 2008 it would be inconsistent with doing justice between the parties to grant the defendants motion In particular the learned High Court judge noted In the court s view a defendant who finds that judgment in default of defence has been recovered against him has a duty to move promptly to set aside that judgment if liability is to be contested While noting there may have been a misunderstanding as to the striking out or adjournment of the original motion for judgment the defendants were clearly aware of the obligation to recover its position by a delivery of a defence on numerous occasions They had promised to do so within the eight days provided for in the court order and as promised in their letter of 14th March 2007 The learned High Court judge also stated It can hardly be doubted that if the motion had been brought at any time during 2007 it would have stood a reasonable chance of being allowed That the Chief State Solicitor was alive to the need to take such a step is evident from the correspondence at the beginning of May 2007 Instead nothing was done throughout 2007 and it was the plaintiff s solicitor who reactivated matters in May of the following year The learned trial judge further noted that even when the plaintiff s solicitor effectively offered opportunities to the Chief State Solicitor s office to mend its hand nothing was done Even when the plaintiff s solicitor began preparations for the hearing the Chief State Solicitor s office did not move to assert any intention to contest liability but effectively acquiesced in the steps taken in the trial preparations being undertaken by the plaintiff The defence merely sought time to examine the medical reports and conduct their own medical examination Cooke J concluded his ruling as follows Finally the court was heavily influenced in rejecting the motion by the complete absence from the defendants grounding affidavit of any explanation or excuse for the failure to take any step towards re asserting an intention to contest liability between April 2007 and December 2008 Such delay in the circumstances was inordinate and unexcused and in the absence of any mitigating explanation the court considered that it had no evidential basis upon which it might have been inclined in the defendants favour on the motion SUBMISSIONS ON APPEAL Mr Hugh Mohan senior counsel on behalf of the defendants submitted that he had satisfied the onus of proof necessary to obtain relief by demonstrating that there had been special circumstances as required by Order 27 Rule 14 2 of the Rules of the Superior Courts Those special circumstances consisted of the misunderstanding between the solicitors whereby the original motion for judgment was not struck out but instead was adjourned for three weeks following which an Unless Order was made in the plaintiff s favour He submitted that an Unless Order was a very serious order to make and one not usually made on a first motion for judgment Furthermore the defendants were in a position to deliver their defence within a relatively short period of time after the default judgment became effective There was thus he submitted no good reason why the court should not exercise its discretion in favour of the defendants He submitted that the learned trial judge was in error in holding that there was an overriding obligation on the defendants to move promptly to set aside the judgment and that their rights and entitlements were lost on account of their delay in applying to the court No such requirement was contained in the relevant Rule and he submitted the learned trial judge had fettered his discretion by reading the Rule in that particular manner In support Mr Mohan invoked the dicta of Lord Atkin in Evans v Bartlam 1937 A C 473 where he adverted to the wide discretionary power given to a judge to set aside a default judgment Lord Atkin had noted at p 480 The Courts however have laid down for themselves rules to guide them in the normal exercise of their discretion One is that where the judgment was obtained regularly there must be an affidavit of merits meaning that the applicant must produce to the Court evidence that he has a prima facie defence It was suggested in argument that there is another rule that the applicant must satisfy the Court that there is a reasonable explanation why judgment was allowed to go by default such as mistake accident fraud or the like I do not think that any such rule exists though obviously the reason if any for allowing judgment and thereafter applying to set it aside is one of the matters to which the Court will have regard in exercising its discretion If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed the two rules would be deprived of most of their efficacy The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure But in any case in my opinion the Court does not and I doubt whether it can lay down rigid rules which deprive it of jurisdiction Mr Mohan also cited in support the principles enunciated by Sir Roger Ormrod in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc 1986 2 Lloyds in the following manner i A judgment signed in default is a regular judgment from which subject to ii below the plaintiff derives rights of property ii The Rules of Court give to the Judge a discretionary power to set aside the default judgment which is in terms unconditional and the court should not lay down rigid rules which deprive it of jurisdiction per Lord Atkin at p 486 iii The purpose of this discretionary power is to avoid the injustice which might be caused if judgment followed automatically on default iv The primary consideration is whether the defendant has merits to which the court should pay heed per Lord Wright at p 489 not as a rule of law but as a matter of common sense since there is no point in setting aside a judgment if the defendant has no defence and if he has shown merits v Again as a matter of common sense thought not making it a condition precedent the court will take into account the explanation as to how it came about that the defendant found himself bound by a judgment regularly obtained to which he could have set up some serious defence Mr Mohan further submitted that by its judgment in Croke v Waterford Crystal Limited and Another 2005 2 I R 383 this court had emphasised albeit in the context of an application to amend proceedings the importance of having the real issues between the parties determined at trial Mr Mohan argued that the court should engage in a two stage process Firstly the general rules which apply to Order 13 Rule 11 of the Rules of the Superior Courts and which applied to Order 27 Rule 14 prior to the 2004 amendment thereof should be considered While Order 13 Rule 11 refers specifically to setting aside a judgment where there has been no appearance the general principle that a court may set aside or vary a judgment upon such terms as may be just should still inform the approach of the court to the defendants application in this case The second stage of the process required the court to consider whether the defendants have a good defence on the merits He submitted that the affidavit evidence established the fact of a good defence and facts concerning the manner in which the judgment came to be granted which would justify the court in exercising its discretion to set aside the judgment Mr Conor Maguire senior counsel for the plaintiff contended that a complete sea change had been wrought by the amendment of Order 27 Rule 14 in 2004 An applicant for relief must now demonstrate special circumstances to be recited in the Order which existed at the time of the default which both explain and justify the failure to deliver the pleading in question That this was a substantial change in the existing rules which rendered redundant much of the pre existing jurisprudence is evident from decisions of this Court in the analogous situation of applications to dismiss for want of prosecution brought under Order 27 Rule 14 1 In those cases a plaintiff is now also obliged to also demonstrate special circumstances to explain and justify his failure to deliver a Statement of Claim These principles had been enunciated in cases such as Gilroy v Flynn 2005 1 I L R M 290 and Stephens v Paul Flynn 2008 4 I R 31 These decisions also took account of the passing into law of the European Convention on Human Rights Act 2003 Article 6 of the European Convention for the Protection of Human Rights Fundamental Freedoms specifically provides that in the determination of civil rights everyone is entitled to a fair and public hearing within a reasonable time by a court or tribunal and that a plaintiff should not be shut out from obtaining his remedy where there has been inordinate delay in defending the claim as found by the learned trial judge and as indeed was accepted by the defendants Mr Maguire submitted that the test is not whether the defendants have a defence with a reasonable prospect of success but rather whether there were special circumstances at the time of the default which justify and explain the failure Alternatively if special circumstances existed at the time of the failure to file a defence the circumstances in question cease to be special when the defendants allow twenty one months to elapse before seeking to set aside a judgment In reply Mr Mohan while acknowledging the applicability to his case of the jurisprudence in relation to claims to dismiss for want of prosecution submitted that the interests of justice required that he be allowed defend the proceedings He contended that the plaintiff had failed to establish or even allege that he had suffered any specific prejudice as a result of delay Any penalty to be suffered by the defence could be adequately reflected in an appropriate costs order DISCUSSION The first matter I wish to consider is the specific terminology of Order 27 Rule 14 2 of the Rules of the Superior Courts in relation to an application of this nature The Rule specifically provides that a judgment obtained by default may be set aside by the court if the court is satisfied that at the time of the default special circumstances to be recited in the Order existed which explain and justify the failure This particular form of wording is certainly open to the interpretation that the court may or should set aside a judgment only where the special circumstances may be said to have arisen at the time of the default However any such approach to interpretation would in my view be mistaken illogical and absurd For example if at any time after judgment had been entered the solicitor dealing with the matter on behalf of a defendant had become seriously ill or had lost his papers through fire or theft such special circumstances could not be said to have arisen at the time of the default and it would therefore follow that an applicant for relief would be unable to satisfy the requirements of the Rule That would be plainly absurd Equally absurd it seems to me would be to interpret the Rule as meaning that once special circumstances at the time of the default were established an applicant thereafter had limitless time in which to apply to the court for relief That would also be absurd because plainly a special circumstance at one particular time may cease to be such following a lengthy period of inactivity by or on behalf of the party entitled to rely on that special circumstance Secondly while counsel for the applicant accepted that the jurisprudence developed in relation to Order 27 Rule 14 1 of the Rules of the Superior Courts has direct relevance and application to the granting of relief under Order 27 Rule 14 2 it seems to me that the application to move expeditiously must be far greater on a party against whom a judgment has been entered than that which devolves

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  • to his pension commencement date Rectification 22 The technical form of the rectification sought in this case has already been set out The effect of this rectification if granted would be that the practice of integration would cease only in the case of those members of the Pension Plan who were in active employment i e not on Income Continuance benefit on the 20th February 1998 or later The only members of the Pension Plan whose benefits will be calculated by a reference to a date on or after the 20th February 1998 and in respect of whom it is contended that the amendment does not apply are those members of the Pension Plan who were Income Continuance beneficiaries on that date Mr Hilliard was within that category at the time of his retirement as the representative defendant and so is Mr Sheils who replaced him in that capacity 23 Rectification was the principal and is now the only relief sought by the Company The law 24 The parties in this case were agreed as to the legal principles applicable to an application of this sort and indeed they had been agreed on these issues in the High Court as well 25 In Irish Pensions Trust Ltd v Central Remedial Clinic 2006 2 IR 126 at para 114 Kelly J considered the nature of rectification and what it required to be shown by someone who claims it He says 114 Rectification permits the Court to correct an instrument which has failed to record the actual intentions of the parties to an agreement It is a discretionary equitable remedy 115 The circumstances in which rectification is available was authoritatively considered by the Supreme Court in Irish Life Assurance Company Ltd v Dublin Land Securities Ltd 1989 IR 253 In that case Griffin J speaking for the Supreme Court adopted the principles outlined by Lord Lowry LCJ in Rooney and McParland Ltd v Carlin 1981 NI 138 At 146 the former Lord Chief Justice of Northern Ireland said i There must be a concluded agreement antecedent to the instrument which is sought to be rectified but ii The antecedent agreement need not be binding in law for example it need not be under seal if made by a public authority or in writing and signed by the party if relating to a sale of land nor need it be in writing such incidents merely help to discharge the heavy burden of proof and iii A complete antecedent concluded contract is not required so long as there was prior accord on a term of a proposed agreement outwardly expressed and communicated between the parties as in Joscelyne v Nissan this last case is quoted elsewhere in this judgment 26 Having adopted this passage Griffin J giving the judgment of the Court proceeded as follows Applying those principles to the facts of this case and bearing in mind the heavy burden of proof that lies on those seeking rectification the question to be addressed is whether there was convincing proof reflected in some outward expression of accord that the contract in writing did not represent the common continuing intention of the parties on which the Court can act and whether the plaintiff can positively show what that common intention was in relation to the provisions which the appellant says were intended to exclude the vacant lands at Palmerstown Evidence 27 The evidence of those witnesses who were officers or employees of the parties to the Deed who swore affidavits in this case which will be summarised below in my opinion shows an unusual degree of cogency and unanimity The case was tried on affidavit and none of the witnesses whose affidavits were relied on by the plaintiffs was cross examined on behalf of the representative defendant Moreover the evidence filed by on behalf of both parties to the Deed was to the same effect the Deed of Amendment does not reflect the intention of either of Tara Mines or of Irish Pensions Trust and ought to be rectified so as to express the actual intention of these parties This was to exclude members in receipt of Income Continuance benefit as of the 20th February 1998 from the entitlement to exclude the deduction in respect of the Social Welfare Pension known as integration 28 Apart from this unanimity in the evidence on behalf of the plaintiff and of Irish Pension Trust there was ample evidence also summarised below that the Company and the Trustees at all material times behaved in their dealings with pensioners and in their statements on the basis that the true position was as they intended it to be This indeed is illustrated in the narrative of events in relation to the original representative defendant Mr Hilliard as appears from the summary above 29 Moreover it is a feature of the evidence that there is a detailed explanation again unchallenged by cross examination from the in house lawyer in Irish Pension Trusts who together with others drafted the Deed of Amendment as to how precisely an error occurred This error gave rise to the situation in which the Deed as executed did not reflect the intention of the parties It is vital to note that this evidence too was unchallenged by cross examination 30 The principal affidavit on behalf of the plaintiff appellant was that of one of its executives Mr Christopher Blake At Para 19 he deposed The principle changes to the pension arrangements arising from the Joint Standing Committee agreement which were embodied in the 1999 Deed of Amendment can be summarised as follows a Integration with the State Pension was to be eliminated for the then active and future members of the work force In effect this meant that the Company s pension plan would no longer take into account any pension paid from Social Welfare in calculating a pensioner s pensionable salary post 20th February 1998 for then active and future members retiring from that date b Direct miners pensionable salary was increased to 1 25 times basic salary c On retirement at age 62 a bridging pension would be paid to age 65 referable to a multiple between one and two times the single person s personal Social Welfare Pension 31 This account was supported by all deponents on behalf of Boliden Tara Mines Limited and Irish Pensions Trust Moreover it was consistent with the documentation created and circulated to the employees around that time for example the communication from Irish Pensions Trust in embodying these changes was addressed to all active employees as at 20th February 1998 It relevant witnesses were not cross examined 32 Similarly an internal I P T memorandum from Mr Alan Doherty to I P T s in house lawyer recorded on the 20th July 1999 Further changes were introduced on 20th February 1998 and again these only apply to active employees and not to those on disability benefit 33 The lawyer in commenting upon a draft produced in house said I am not sure that the draft adequately reflects the fact that the changes introduced as at 20th February 1998 apply to active employees only excluding previous withdrawals and Income Continuance Claimants at that time 34 A meeting of the Joint Steering Committee for the purpose of clarifying aspects of which clarification had been requested was held on the 23rd February 1999 In response to a specific request for clarification of the position of employees on Income Continuance or going on Income Continuance the answer was given they will receive Income Continuance up to the age of 65 and will then receive pension as per the old scheme emphasis added 35 Similarly in I P T s document Brief Outline of the revised Pension Plan eligibility was defined as full time permanent salaried staff and hourly paid employees who have attained the age of 21 36 The minutes of the meeting of the 3rd March 1998 between Tara Mines and IPT i e between the parties to the Deed record at item 6 it was confirmed that the Pension Plan changes will only apply to active employees Announcement letters will specifically include them How the mistake was made 37 By reason of the Constitution of the Pension scheme the consent of IPT as trustee was required to the Deed of Amendment It was not controverted that the intention of the parties to the Deed was to eliminate integration in the calculation of pensionable salaries for employees of the appellant Company as at the 20th February 1998 and thereafter The term integration has been explained above The terms of the Deed of Amendment as executed went further than this intention and provided for the elimination of integration not only for current employees and future employees but also for former employees who were as of the 20th February 1998 in respect of Income Continuance benefit and who were not therefore in active employment with the Company 38 The in house lawyer who oversaw the drafting of the amendment explained the error as follows in her affidavit At para 7 it is stated I clearly understood on the basis of Mr Doherty s memoranda of the 20th July and the 5th October 1999 that the changes introduced on the 20th February 1998 were only to apply to active employees I understood from this that ICP Income Continuance Plan beneficiaries were not to benefit from the changes introduced However I was of the view that the concerns expressed by Mr Doherty in his memoranda of the 5th October 1999 were unfounded I considered that there was no need for express wording excluding ICP beneficiaries as I considered that they were by definition already excluded as they were no longer employees of the appellant Company and therefore no longer active beneficiaries of the plan In effect I considered that the amendment proposed to the definition of pensionable salary insofar as it made reference to a member encompassed active members only and therefore excluded ICP beneficiaries 39 It is now agreed that express language should have been used to exclude Income Continuance Plan beneficiaries The very frank and entirely credible account of the in house lawyer as to why this was not done has not been contradicted or in any way challenged on its facts She was not cross examined 40 Accordingly there is unanimity in the evidence of all the persons engaged in the preparation of the Deed of Amendment as to what their several and mutual intention was There is frank and un glossed evidence from the in house lawyer engaged by the trustee Irish Pensions Trust of the exact nature of the misapprehension which led her to think that express language was unnecessary to exclude former employees who are deriving an income continuance benefit from the proposal to end integration None of this evidence was in any way controverted challenged or glossed on its facts by counsel on behalf of the representative defendant Although as the next section of this judgment will show there has been a good deal of discussion of the standard of evidence required in a rectification case none of the authorities in my view features on its facts such cogency and unanimity of evidence as is found in this case Rectification and questions of Evidence 41 The issues which arose on the trial of this matter in the High Court were exclusively issues of evidence The representative defendant who opposed the granting of the relief sought did not contradict any of the deponents who swore affidavits on behalf of the plaintiff on their evidence He did not put forward contradictory evidence himself 42 In the words of the learned trial judge 57 The principal ground upon which the application for rectification is opposed on behalf of the representative beneficiary is that the evidence relied upon by the plaintiff and supported by I P T and the current trustees to establish an intention of the Company and I P T to exclude I C P beneficiaries from the amendment in para D of the 1999 Deed falls short of the convincing proof or cogent evidence required in accordance with the principles set out above 43 It cannot be too strongly emphasised that where evidence is presented on affidavit a party who wishes to contradict such evidence must serve a Notice of Intention to Cross examine In a case tried on affidavit it is not otherwise possible to choose between two conflicting versions of facts which may have been deposed to In a case where there is no contradictory evidence an attack on the evidence which is before the Court must include cross examination unless the contradicting party is prepared to rely wholly on a submission that the plaintiff has not made out its case even taking the evidence it has produced at its height 44 A claim for rectification is a claim for an equitable remedy whereby the Court orders that a written instrument be altered so that its text as altered or rectified expresses the actual intention or agreement of the parties The principles applicable to an application for rectification and in particular the rectification of an occupational pension scheme were considered by the High Court in Irish Pensions Trust Ltd v Central Remedial Clinic and Ors 2006 2 IR 126 There Mr Justice Kelly referred to the decision of this Court in Irish Life Assurance Company Ltd v Dublin Land Securities Ltd 1989 IR 253 and to its treatment of a decision of the English Court of Appeal on the question of the standard of proof required in such an application The English case was Joscelyne v Nissan 1970 2 QB 86 where it was said by Russell L J at p 98 of the Report We do not wish to attempt to state in any different phrases that which we entirely agree except to say that it is in our view better to use only the phrase convincing proof without echoing an old fashioned word such as irrefragable and without importing from the criminal law the phrase beyond all reasonable doubt it would be a sorry state of affairs if when that burden is discharged a party to a written contract could on discovery that the written language chosen for the document did not on its true construction reflect the accord of the parties on a particular point take advantage of that fact 45 I respectfully agree with the general approach in the quotation above but would also express the view that in Ireland no form of words other than proof on the balance of probability should be used and that the multiplication of phrases may cause confusion It appears clearly established in Irish law that there are but two standards of proof that applicable in criminal proceedings which require proof beyond reasonable doubt and that applicable in civil proceedings where proof on the balance of probability is required 46 The judgment of this Court in Banco Ambrosiano v Ansbacher and Co 1987 ILRM 669 is authority for the proposition that there are only two standards of proof and that it would be difficult to express any intermediate standard and the attempt would introduce a vague and uncertain element into the law The reasoning behind this was held to have been aptly put in a passage from Kerr on Fraud and Mistake 7th edition p 672 In matters that regard the conduct of men mathematical demonstration cannot be expected or required Like much of human knowledge on all subjects fraud may be inferred from facts that are established Care must be taken not to draw the conclusion hastily from premises that will not warrant it but a rational belief should not be discarded because it is not conclusively made out If the facts established afford a sufficient and reasonable ground for drawing the inference of fraud the conclusion to which the proof tends must in the absence of explanation or contradiction be adopted 47 Continuing Henchy J said Proof of fraud is frequently not so much a matter of establishing primary facts as of raising an inference from the facts admitted or proved The required inference must of course not be drawn lightly or without due regard to all the relevant circumstances including the consequences of a finding of fraud But that finding should not be shirked because it is not a conclusion of absolute certainty If the Court is satisfied on balancing the possible inferences open on the facts that fraud is the rational and cogent conclusion to be drawn it should so find 48 Banco Ambrosiano was a case of fraud but I would adopt what is said there in relation to the standard of proof in civil proceedings generally If a conclusion is likely to have severe consequences for an individual such as fraud dereliction of duty grave professional shortcomings conduct generally considered disgraceful the Court must of course be careful not to jump too easily to a conclusion on grounds that do not support it But then a court must avoid doing that in any case but should perhaps self consciously remind itself of that need in a case of particular sensitivity 49 No doubt the trier of fact will always bear in mind the particular difficulties of any particular case or type of case and the scope for the Court to be imposed upon Nonetheless this is a civil case and therefore requires proof on the balance of probabilities To achieve this standard naturally convincing evidence will be required 50 I regard the statements just made as quite consistent with what is said in the 7th edition of Spry s classic work on The principles of Equitable Remedies London 2007 In early cases when the doctrine of rectification had not been fully developed the strength of the evidence that was required before the terms of a document would be rectified was much emphasised More recently when the application of the doctrine has become

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  • c it is submitted that there being no box ticked on the list the executing judicial authority in the requested State may on the facts set out in the warrant hold that the offence is one specified on the list I shall consider these three options separately To anticipate the Supreme Court held in that case that only the first two options had been created by the Act of 2003 so that it is unnecessary for us to consider any further the third option for which the State had contended In the concluding section of the judgment of Desjatnikovs at para 69 Denham J said The Framework Decision and the Act of 2003 have introduced a novel system Firstly the concept of double criminality a corresponding offence may be applied This is the basis upon which extradition has proceeded for many years and is not a new concept However secondly the concept of a list of offences where double criminality need not be found is an entirely new system agreed by the member states in Article 2 2 of the Framework Decision and transposed into our law by the Act of 2003 If the offence is identified by the issuing state then the matter comes within this new legal scheme This authoritative citation may be put into context as follows Ever since systems of extradition have existed States generally required that the offence in respect of which extradition was sought should be a crime both in the requesting State and in the requested State They did not require that the crime should be called by the same name or defined in the same way or that the penalty be the same but simply that the actions alleged should constitute criminal offences in both jurisdictions This was known as the principle of double criminality Offences having this quality were said to correspond At some point immediately after 9 11 the States which became party to the Framework Decision agreed or were deemed to have agreed that this requirement should no longer be necessary in the European Arrest Warrant area They did not however go so far as to say that one could be forcibly delivered from one State within this area to another simply on the basis that the actions were criminal in the requesting State Instead they set out a list replicated below and provided that there could be forcible delivery in respect of conduct criminal in the requesting State at least which corresponded to some entry on the list Some of these are very specific such as the seizure of ships or aircraft but some are extremely vague In the present case it was submitted on behalf of the State that the matters listed are couched not in legal language but in political language and do not constitute a list of offences but rather a list of types of conduct Accordingly the double criminality requirement may be avoided by a requesting State by ticking one or more of the entries on the list and establishing that the conduct alleged against the requested person meets that description The list referred to in the Framework Decision is as follows in the form it takes in the European Arrest Warrant in this case participation in a criminal organisation terrorism trafficking in human beings sexual exploitation of children and child pornography illicit trafficking in narcotic drugs and psychotropic substances illicit trafficking in weapons munitions and explosives corruption X fraud including the affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities financial interests X laundering of the proceeds of crime counterfeiting of currency including the euro computer related crime environmental crime including illicit trafficking in endangered animal species and in endangered plant species and varieties facilitation of unauthorised entry and residence murder grievous bodily injury illicit trade in human organs and tissue kidnapping illegal restraint and hostage taking racism and xenophobia organised or armed robbery illicit trafficking in cultural goods including antiques and works of art swindling racketeering and extortion counterfeiting and piracy of products forgery of administrative documents and trafficking therein forgery of means of payment illicit trafficking in hormonal substances and other growth promoters illicit trafficking in nuclear or radioactive materials trafficking in stolen vehicles rape arson crimes within the jurisdiction of the International Criminal Court unlawful seizure of aircraft ships sabotage Central Point of Fact Against that background it is necessary to look at what is said or certified in the European Arrest Warrant in the present case This European Arrest Warrant At p 2 para e the warrant is said to relate to four offences in total being the four set out above On the following page the following certification is made It is hereby certified pursuant to s 142 6 of the Extradition Act 2003 that a the conduct constituting the extradition offences specified in the warrant falls within the European framework list b the offence is not an extraterritorial offence c irrelevant It will thus be seen that the issuing authority or those on whose application it issued the warrant is not seeking to rely in the warrant on the principle of dual criminality but is certifying that the extradition offences are within the list referred to as the European Framework List and described in the preceding section of this judgment It should be noted that the page numbers quoted are those of the Warrant as presented to this Court The European Arrest Warrant itself is unpaginated in its printed form The list itself is set out at p 5 para 1 of the warrant the two offences ticked are firstly Fraud including that affecting the financial interests of the European Communities within the meaning of the Convention of the 26 th July 1995 on the European Communities Financial Interests And secondly Laundering of the proceeds of Crime Since the present case does not feature any connection with the financial interests of the European Communities the first category relied upon is simply Fraud Next however there occurs a very major inconsistency in the warrant At p 6 at a paragraph which I think is marked II though it is not very easily legible but which occurs immediately under the setting out of the European Framework List the following occurs 11 Full descriptions of offence s NOT covered by Section I above CONSPIRACY Section 1 1 of the Criminal Law Act 1977 Section 1 Conspiracy the offence Paragraph 1 1 Subject to the following provisions of this part of this Act if a person agrees with any other person or persons that a course of conduct shall be pursued which if the agreement is carried out in accordance with their intention either a will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement or b would do so but for the existence of facts which render the commission of the offences impossible he is guilty of conspiracy to commit the offence or offences in question A major conflict The foregoing extracts from the warrant manifest a very serious internal conflict within that important document First it is certified pursuant to a United Kingdom statute that all of the extradition offences are within the European Framework List That list is set out at p 5 para 1 of the warrant Immediately after that list it is stated citing an English statute that the offence of conspiracy is NOT within the list But three of the four offences in respect of which the forcible delivery of Mr Tighe is sought are offences of conspiracy There is nothing in the warrant aimed at establishing dual criminality in respect of these three offences and having regard to the decision of this Court in Attorney General v Hilton 2005 2 IR 374 it appears that no such dual criminality could in any event be established in terms of Irish Law In that case this Court decided that an analysis of the alleged Common Law offence of cheating the Revenue is such as to lead to the only possible conclusion being that no Irish Common Law offence of cheating the Public Revenue however admirable such a law might be exists Accordingly in terms of the warrant itself the offence of conspiracy to commit the offence specified is not an offence within the European Framework List Neither is it a corresponding offence to any offence in Ireland It appears to me that this very grave difficulty has arisen because the drafters of the warrant presumably the prosecuting solicitors to the Inland Revenue failed to distinguish between the completed offence of cheating the Revenue which might or might not be capable of description as fraud on the one hand and the offence of conspiracy to cheat the Revenue which as the warrant itself proclaims is not within the framework list Notwithstanding this the warrant earlier contains a certificate that all of the offences were on the list The High Court Decision At p 6 of the judgment of the learned trial judge delivered the 28 th January 2009 he recorded The issuing judicial authority in paragraph E i of the warrant has marked fraud and money laundering in the boxes provided for categories of offence coming within Article 2 2 of the Framework Decision This indicates that offence 3 cheating the public revenue is an offence in respect of which double criminality does not require verification and that the offences behind the three conspiracy offences fraud and money laundering are offences coming within Article 2 of the Framework Decision In paragraph E ii of the warrant the issuing authority has indicated that the offence of conspiracy is not covered by the marking of the boxes referred to Therefore correspondence must be established in that regard It is provided in that paragraph that under U K law conspiracy to commit an offence is provided for by s 1 1 of the Criminal Law Act 1977 and the text of the Section is set forth There is no such equivalent provision in this jurisdiction but the existence of the common law offence of conspiracy here is sufficient to satisfy correspondence for conspiracy I cannot with all respect agree with this last conclusion of the learned trial judge Conspiracy is legally classified as an inchoate offence of which there are only three conspiracy attempt and incitement The word conspiracy itself simply means agreement though with a connotation of an agreement to do something which the speaker regards as nefarious or unlawful or at least disapproves of It can be seen from the particulars of offence in this case that the actus reus of conspiracy is described as being a specified conspiracy or agreement with others But neither an agreement nor an attempt nor indeed an incitement are criminal in themselves whether at common law or otherwise As Charleton J et al remark in their Criminal Law p 296 There was no general offence of conspiracy at Common Law The relevance of the foregoing remarks arises from what the learned trial judge next said on the topic of conspiracy at p 7 of his judgment Secondly in relation to the conspiracy charges it is necessary to show that in this State conspiracy to commit an offence which itself is an offence here is an offence under the law of the State That requirement is satisfied by the existence here of the offence of conspiracy contrary to Common Law In the case of conspiracy it is necessary in addition either to establish correspondence in relation to the underlying offences or that those offences are offences within Article 2 2 of the Framework Decision The latter has occurred in this case I repeat that conspiracy is not in itself an offence it is criminal only in the context of an agreement to commit a specific unlawful act or perhaps a lawful act by an unlawful means Following the Supreme Court judgment in Hilton cited above it is clear that there is no offence in Ireland of conspiracy to cheat the Revenue This is for the reasons set out in that judgment and in particular at p 380 At the core of the Common Law offence in England is the concept of depriving the Crown The offences cited in the warrant in this case refer to the Crown thus at the expense of the Crown of defrauding the Crown of monies failing to make Crown debts to the detriment of the Crown and thus cheated the Public Revenue This relationship to the Crown is a relevant factor And at p 381 Considering the factors set out above the situation in Ireland as to an offence of cheating the Public Revenue is vague and unclear It appears to have fallen into obsolescence The reference to the effect of cheating the Public Revenue in the Act of 2001 is not so precise as to create an offence an offence which may have ceased to exist prior to the Statute The offence was not utilised in prosecutions over the last 100 years Nor has it been the subject of academic analysis Consequently its constituent parts are not clear This is a critical factor In Criminal Law the constituent parts of an offence should be clear The law must be certain If there is ambiguity it is rendered to the advantage of an accused It is a fundamental principle that the Criminal Law must be clear and certain The constituents of an offence must be clear and certain The possibility that such an offence exists in our Common Law is insufficient clarity of the situation The ambiguity as to its constituent parts is relevant These are most relevant factors It has been the practice that offences of this type have been prosecuted by way of statutory offences This is the modern practice This is a relevant factor I would respectfully adopt the foregoing observations of Denham J cited above from Hilton Moreover the parameters of the offence of cheating the Public Revenue in the United Kingdom itself are notably vague and obscure In this country of course it is a constitutional imperative that the definitions of a crime be sufficiently precise and certain see DPP v Cagney and McGrath 2008 2 I R III which referred to a very broadly drafted statutory offence Reckless Endangerment In that case the Court said at p 34 From a legal and constitutional point of view it is of fundamental value that a citizen should know or at least be able to find out with some considerable measure of certainty what precisely is prohibited and what is lawful Thus in Attorney General v Cunningham 1932 IR 28 O Byrne J said at p 32 in the Court of Criminal Appeal The offence as charged in the indictment is one of maliciously firing into the dwelling house of one William O Donoghue and it seems to us that the proper question for our determination is whether that is at Common Law an indictable offence In considering that question the Court must have regard to the fundamental doctrine recognised in these courts that the criminal law must be certain and specific and that no person is to be punished unless he has been convicted of an offence recognised by law as a crime and punishable as such 35 Equally in King v The Attorney General 1981 IR 233 Kenny J said at p 263 It is a fundamental feature of our system of government by law not by decree or diktat that citizens may be convicted only of offences which have been specified with precision by the judges who made the common law or of offences which created by statute are expressed without ambiguity in my opinion both governing phrases a suspected person and reputed thief are so uncertain that they cannot form the foundation for a criminal offence It may indeed be relevant to quote a passage appearing later in Cagney judgment at p 37 There it is said that considerations relating to the need for certainty and clarity in criminal statutes or law make it undesirable that so vague and open ended a section should be used in circumstances such as those of the present case where the actions of applicants as alleged by the prosecution would clearly constitute and established and recognised criminal offence viz assault in one or other of its variance In those circumstances in my view it is desirable that the obvious offence should be charged There are of course both in Ireland and in the United Kingdom specific statutory offences relating to the Income Tax code including an offence of not making a return of income if one is obliged to do so It may be that the extremely severe penalty said to be available at Common Law is a great attraction to prosecutors I have gained much from a reading of an illuminating article Cheating the Public Revenue by David Ormerod in 1998 Criminal Law Review I The author is now Professor of Criminal Justice in Queen Mary College University of London Under the heading The Scope of the Offence the learned author says It is essential to the proper administration of the Criminal Law that it is capable of being known by all citizens subject to its jurisdiction With most criminal offences it is possible to identify a clear source whether a statute or decided case which provides an accepted definition of the offence The definition of cheating is less clear than many offences in part owing to the heavy reliance even in relatively modern cases on the ancient definitions of the offence The truth of Professor Ormerod s observation is justified by a reading of the reasonably modern cases cited Thus R v Hudson 1956 QBD 252 a case often cited for the proposition that the offence of cheating the Revenue continues to exist takes

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  • recording Thus the full record covering 21st August 2005 had been overwritten and was no longer available This and further technical information was furnished to the solicitor in a telephone conversation on 1st May the day before the hearing 19 The respondent commenced the hearing of the case on 2nd May It continued on that day and on 8th 10th and 11th May 20 Inspector Cummins presented the case for the prosecution He indicated from the outset that he would be relying exclusively on the evidence from the CCTV footage The appellant s solicitor conveyed his intention to object to the admission of the CCTV footage into evidence He maintained this objection consistently throughout the trial The prosecution proposed to have this footage played in court The defence objection was that this footage represented clips taken from the hard drive and did not contain a continuous record of the three hour shift worked by the appellant The defence solicitor said that the gardaí should have taken possession of the original complete unedited footage The court was referred to a number of the decisions of this court concerning missing or lost evidence in particular Braddish v Director of Public Prosecutions 2001 3 I R 127 Dunne v Director of Public Prosecutions 202 2 I R 305 McFarlane Director of Public Prosecutions 2007 1 I R 134 The District Judge conducted a voir dire on 8th May concerning the admissibility of the evidence Having heard further argument the District Judge held that the defence had not been prejudiced by the failure of the gardaí to take the entire hard drive into garda custody and to furnish the defence with a copy of the complete and unedited footage 21 Having made this ruling the judge indicated his intention to adjourn the hearing to 10th May for the purpose of viewing the CCTV footage At that point the appellant s solicitor informed the judge that he expected to be instructed to seek judicial review of his decision to admit the evidence called direction in the affidavit 22 On the morning of 10th May the solicitor applied to the judge to stop the trial so as to facilitate an application to be made to the High Court for judicial review of that decision The judge declined to stop the trial in the absence of an order of prohibition He also declined to adjourn the trial for the same purpose 23 The CCTV footage was played in court It was effectively the only evidence incriminating the appellant The appellant called as a witness a fellow employee at the leisure centre to give evidence of the practice of paying funds into the till as a float and later withdrawing it The appellant did not give evidence The District Judge convicted the appellant of the offence charged on 11th May 2006 Proceedings 24 The appellant obtained an order of the High Court Peart J on 15th January 2007 granting him leave to apply for judicial review by way of certiorari of his conviction The grounds may be summarised as follows 1 The appellant was not charged forthwith following his second arrest on 27th October 2005 with the offence of which he was convicted as required in the circumstances of his case by section 10 2 of the Criminal Justice Act 1984 hence his constitutional and convention rights to liberty and to a fair trial were infringed this rendered the charge defective and invalid and the respondent acted ultra vires his jurisdiction whereas he should have discharged the appellant 2 The appellant s right to a fair trial was infringed by the failure of the gardaí to seek out preserve and make available to him the originals and or copies of all CCTV footage pertaining to his case further the respondent contravened the appellant s right to natural and constitutional justice by proceeding to hear the charge against the appellant and to admit the evidence of CCTV footage in the absence of the complete and unedited CCTV footage being taken into garda custody 25 With regard to the first point Birmingham J pointed out that section 10 2 of the Criminal Justice Act 1984 permits the arrest of a person who has already been detained pursuant to section 4 of that Act and released without charge provided that the arrest is for the purpose of charging him with that offence forthwith emphasis added He noted that it was not in dispute that the purpose of the appointment made by Detective Garda Murray with the appellant on 27th October 2005 was that the latter be charged with the offence He referred to the facts and contrasted them with the facts in the case of O Brien v Special Criminal Court 2008 4 I R 514 He noted that the effect of the malfunctioning printer was only to prolong by twenty five minutes the delay in charging the appellant 26 His principal reason for rejecting the appellant s first argument was that the fact that he had been detained in a cell for 55 minutes associated with a delay in charging him did not affect the jurisdiction the District Court to try him He cited the judgments of Davitt P in State Attorney General v Judge Fawsitt 1955 I R 39 and of McGuinness J in Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 27 Dealing with the CCTV issue he accepted that the appellant s solicitor had moved promptly and with great persistence to obtain the evidence However he found the argument for the relevance of the material of which the gardaí did not take possession somewhat unconvincing and contrived He could not see how it could have had the relevance contended for He though that requiring the retention of footage where no crime is being committed would be a radical and unwarranted extension of the obligations imposed on the gardaí 28 Issues as to the weight of evidence and its admissibility were matters for the court of trial He concluded that these were not matters which require or justify intervention of this court by way of judicial review Thus he refused relief on both grounds The appeal 29 The appellant has placed extremely detailed written submissions before this Court in support of his appeal from the judgment of Birmingham J The starting point of his argument on the first point is necessarily that his arrest on 27th October 2005 was unlawful The gardaí had already on 1st September 2005 arrested and detained him using the powers conferred on them by section 4 of the Act of 1984 They had however not charged him arising from that detention but had released him after some three hours Accordingly the provisions of section 10 2 of the Criminal Justice Act 1984 applied to his renewed arrest on 27th October They place restrictions on the subsequent arrest of the same person on suspicion of the same offence The section represents a policy protective of the liberty of the citizen It provided prior to amendment of sub section 1 by the Criminal Justice Amendment Act 2009 1 Where a person arrested on suspicion of having committed an offence is detained pursuant to section 4 and is released without any charge having been made against him he shall not a be arrested again for the same offence or b be arrested for any other offence of which at the time of the first arrest the member of the Garda Síochána by whom he was arrested suspected him or ought reasonably to have suspected him except on the authority of a justice of the District Court who is satisfied on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent that further information has come to the knowledge of the Garda Síochána since the person s release as to his suspected participation in the offence for which his arrest is sought A person arrested under that authority shall be dealt with pursuant to section 4 2 Notwithstanding anything in subsection 1 a person to whom that subsection relates may be arrested for any offence for the purpose of charging him with that offence forthwith 30 The natural and primary point of reference for consideration of the application of section 10 2 is the decision of this Court in O Brien v Special Criminal Court already cited although that case concerned the equivalent provision in the Offences against the State legislation At the hearing of the appeal Mr Ciarán O Loughlin Senior Counsel on behalf of the appellant relied on that decision as being applicable by analogy to this case 31 O Brien concerned the provisions of section 30A of the Offences against the State Act 1939 and the jurisdiction of the Special Criminal Court 32 Section 30A was inserted in the Act of 1939 by section 11 of the Offences against the State Act Amendment Act 1998 Section 30A 3 is expressed in virtually identical terms with section 10 2 of the Act of 1984 The former provision applies to a person who has been arrested on an earlier occasion pursuant to section 30 of the Act of 1939 but released without charge the latter to a prior arrest detention and release pursuant to section 4 of the Act of 1984 In each case the new arrest which is exceptionally permitted must be effected forthwith 33 The facts in O Brien were somewhat different The applicant was arrested on 6th April 2004 on foot of a warrant pursuant to section 29 of the Act of 1939 and detained pursuant to section 30 on suspicion of having committed the offence contrary to section 21 of the Act of being a member of an unlawful organisation His period of detention was extended by a chief superintendent of An Garda Síochána During that extended period the Director of Public Prosecutions directed that he be brought before the Special Criminal Court and charged with the membership offence Since the day was Holy Thursday arrangements had to be made for a special sitting of that court Once those arrangements had been made the officer in charge of the investigation directed that the applicant be released and immediately arrested pursuant to section 4 of the Criminal Law Act 1997 The applicant was accordingly arrested for charging with the membership offence and taken to a garda station to be detained and he was so detained overnight pending his appearance at the Special Criminal Court at noon on the following day It was envisaged in these circumstances that he would be detained for some fifteen hours before being charged 34 As Denham J noted in her judgment at page 525 the intention manifest in s 30A is that a person on a re arrest in the circumstances of s 30A may not be detained as if it were a first arrest under s 30 In my own judgment I suggested at page 534 that the general purpose of the provision was to prevent abuse by An Garda Síochána by repetitive detention under s 30 in pursuit of the same investigation 35 In O Brien it was a clear part of the garda objective that the applicant would be arrested on the Thursday evening detained overnight in the garda station but not charged until he appeared on the following day at noon before the Special Criminal Court This Court was unanimously of the view that his arrest was not effected for the purpose of charging him forthwith His arrest and subsequent detention were unlawful Thus he was not lawfully brought before the Special Criminal Court on the Friday 36 In my view the appellant s reliance upon O Brien must fail 37 The facts are of course very different In O Brien it was never intended that the applicant be charged following his re arrest on the Thursday evening The Court held that section 4 of the Criminal Law Act 1997 provided a lawful basis for his arrest However section 30A required that in the circumstances of the earlier arrest and detention the fresh arrest had to be for the purpose of charging him forthwith The procedure envisaged was that he be detained overnight in a garda station before being brought before the Special Criminal Court to be charged Thus he was not arrested with the intention of charging him forthwith 38 In the present case the intention was that the garda officer would meet the appellant either at Anglesea Street or Bridewell Garda Station depending on which version was correct and be charged that day It was not envisaged that the charging would take place more than about a half an hour after the arrest The intervention of the printer problem was unexpected It was not part of the purpose The question remains as to whether the purpose of the arrest was that he be charged forthwith given that it was envisaged that there would be a delay of about a half an hour In other words it might be argued that the charge sheet should have been printed and ready so that the appellant would be charged immediately on attendance at the garda station It is not necessary in this case to reach a final conclusion on that point for a reason which I will now explain 39 Birmingham J held that the District Court did not in any event lose jurisdiction by reason of any such delay as was complained of Apart altogether from the issue of delay in charging it has to be remembered that O Brien concerned the procedures for bringing a person before the Special Criminal Court to be charged and tried there The jurisdiction of that court is dependant on the person charged having been brought before the court pursuant to a lawful procedure As was emphasised in the judgment of Denham J section 43 of the Offences against the State Act 1939 provides A Special Criminal Court shall have jurisdiction to try and to convict to acquit a person lawfully brought before that Court for trial under this Act emphasis added 40 I drew attention in my own judgment to the well established proposition that the powers and procedures of the Special Criminal Court were to be interpreted strictly it exercises a special and exceptional jurisdiction Article 38 of the Constitution requires that its procedures be laid down by law 41 The District Court by contrast is a court of summary jurisdiction whose function envisaged by the Constitution is the trial of persons charged with minor offences Birmingham J referred to a well known dictum of Davitt P in State Attorney General v Judge Fawsitt 1955 I R 39 ate 43 The usual methods of securing the attendance of an accused person before the District Court so that it may investigate a charge of an indictable offence made against him is by way of arrest or by way of formal summons but neither of these methods is essential He could of course attend voluntarily if he so wished so far as the exercise of the Court s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured so long as he is present before the District Justice in Court at the material time Even if he is brought there by an illegal process the Court s jurisdiction is none the less effective 42 That statement has been cited and approved in a number of subsequent High Court and Supreme Court decisions It has come to be accepted as a settled principle see McGuinness J in Director of Public Prosecutions McTiernan v Bradley 2000 1 I R 420 at 421 that the jurisdiction of the District Court to embark upon the hearing of a criminal charge is not affected by the fact if it be the fact that the accused person has been brought before the court by an illegal process In Director of Public Prosecutions v Michael Delaney 1997 3 I R 453 at 457 O Flaherty J held that whether an arrest is illegal or not can only be of relevance where proof of a valid arrest is an essential ingredient to ground a charge He gave section 49 of the Road Traffic Act 1961 as an instance of the latter Keane J reiterated the same proposition in Director of Public Prosecutions Ivers v Murphy 1999 1 I R 98 when he delivered a judgment in this Court to similar effect He said at page 113 It has been repeatedly pointed out that as a general rule the jurisdiction of the District Court to embark on any criminal proceeding is not affected by the fact if it be the fact that the accused person has been brought before the court by an illegal process 43 Keane J cited the dictum of Davit P in State Attorney General v Judge Fawsitt already cited above and his own judgment in Killeen v Director of Public Prosecutions 1997 3 I R 218 In his judgment in the latter case he had entered the caveat that where the process by which the person is brought before the court involves a deliberate and conscious violation of his constitutional rights of which the most graphic example is The State Trimbole v The Governor of Mountjoy Prison 1985 I R 550 the court may be justified in refusing to embark upon the hearing No such issue has been raised in the present case 44 In Director of Public Prosecutions McTiernan v Bradley McGuinness then a judge of the High Court heard a case stated from the District Court The accused had been arrested without warrant for an assault contrary to section 2 1 b of the Non Fatal Offences against the Person Act 1997 He came before the District Court for trial on that offence By the time the matter came before the High Court it was accepted that there was no power of arrest without warrant

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  • By reference to offences carrying a term of imprisonment of five years or more a person who has been arrested without warrant on suspicion of having committed such an offence can be detained for an initial period of six hours and on the direction of an officer not below the rank of superintendent for a further six hours By virtue of s 9 of the Criminal Justice Act 2006 a further twelve hours may be specified on the direction of a chief superintendent or a person of higher rank In all detention for twenty four hours is now possible under the section with such detention being for the purposes of investigating an offence Consequently this provision is a significant one not only from the gardaí s point of view but also from the subject s point of view It is therefore not at all surprising that one finds a provision such as s 10 also inserted in the same Act That section as its principal rule prohibits the rearrest of a person inter alia for the same offence who previously has been detained on suspicion of having committed the offence and released without charge That prohibition has two exceptions Firstly it can be disapplied on the authority of the District Court when further information has come to light In such cases there is judicial supervision over the grounds upon which the rearrest is sought Secondly subs 2 which requires no judicial intervention permits the rearrest of a person for any offence for the purpose of charging him with that offence forthwith By its terms the offence underlying the rearrest is not confined to that which resulted in the original arrest and detention It may be any offence What is required is that the arrest must be for the purpose of charging him with that offence forthwith It is as to the correct meaning of this phrase in the context of the facts as found that gives rise to the first aspect of the issue being dealt with There are a number of authorities touching upon the interpretation of s 10 2 of the Act of 1984 and a like provision in the Criminal Justice Drugs Trafficking Act 1996 the Act of 1996 As O Reilly v The D P P para 10 supra is under appeal I do not propose to refer to it In Director of Public Prosecutions v Early 1998 3 I R 158 the High Court had to consider the meaning of s 4 5 of the Act of 1996 The scheme of that Act relative to arrest without warrant release without charge and rearrest is similar to that contained in the Act of 1984 Section 4 with modifications not here relevant parallels s 10 of the Act of 1984 Subsection 5 is virtually identical to s 10 2 of the Act of 1984 At p 169 of the report of Director of Public Prosecutions v Early McGuinness J said the following Section 10 2 of the Act of 1984 and s 4 5 of the Act of 1996 permit a further arrest for this purpose to charge the person with an actual offence and for this purpose only It is essential to distinguish carefully and clearly between arrest for the purposes of detention for investigation and arrest for the purposes of charging the alleged offender of bringing him before the court and of initiating the procedure under the Criminal Procedure Act 1967 That observation is undoubtedly correct If the purpose of the rearrest is not to charge the person with an offence then clearly the arrest is not covered by the subsection That point is made in all of the cases some of which I further refer to in a moment However that in itself does not dispose of the interpretation issue It simply disapplies the subsection if the purpose of the arrest is not as provided for But assuming the purpose is inclusive it leaves unresolved what meaning should be given to the word forthwith in the subsection That particular point was not an issue in Early and consequently was not dealt with A case directly on s 10 2 of the Act of 1984 Act is Massoud v Watkins Anor 2005 3 I R 154 On the 4 th November 2003 the applicant and his wife were arrested on suspicion of having obtained money by false pretences They had received more than 680 000 from an insurance company on foot of a fraudulent claim to the effect that the wife had undergone a particular surgical procedure The pair were detained under s 4 of the Act of 1984 and subsequently had their period of detention extended under subs 3 of that section At about 9 00 p m that evening the gardaí reviewed the evidence then available The investigating gardaí had concerns that if released without charge both might flee the jurisdiction A decision was made to charge them with the offence for which they were arrested They were then told that they would be released from s 4 detention but would be rearrested for this particular purpose After the rearrest which was effected at about 9 08 p m the applicant and his wife were placed in a cell until 11 35 p m when they were charged with the offence of conspiracy to defraud apparently on the direction of the D P P They were kept in custody overnight and were brought before the District Court the next day where they were remanded to appear on the 12 th November 2003 On the 7 th November 2003 leave was given to institute judicial review proceedings in which two issues were raised The first is not relevant The second alleged that the applicant s rearrest at 9 08 p m on the night in question and his subsequent detention were unlawful as being contrary to the provisions of s 10 2 of the Act of 1984 As a consequence he sought an order prohibiting the D P P from further prosecuting him on the conspiracy to defraud charge Gilligan J found as a fact that the purpose of the rearrest was to charge the applicant with the offence of having obtained money by false pretences Sometime during the course of his subsequent detention and following consultation with the D P P a decision was made to charge him not with the offence for which he was arrested but rather with the offence of conspiracy to defraud The trial judge quoted with approval from Early and expressed the view that following the rearrest of a person under s 10 2 the gardaí are not permitted to do anything relative to that person other than that which is directed at charging him with the offence for which he had been rearrested The case was disposed of on the basis that the relevant provision did not permit a rearrest for the purposes of the gardaí obtaining instructions from the D P P as to what charge should be preferred and secondly as the rearrest had been for the purposes of preferring a specific charge it was not open to the gardaí or notice party to prefer a different charge Once that decision was taken the learned judge found that the original arrest became unlawful as did his detention As with Early the facts of Massoud did not draw specific attention to the requirement of charging forthwith Massoud however is also interesting in that the judge having found a breach of Article 40 4 1 of the Constitution went on to deal with the consequences of such finding Submissions were sought by Gilligan J as to what order should be made On the assumption that the headnote to the report is correct it would appear that the relief sought was granted namely an order prohibiting the D P P from proceeding with the conspiracy charge Whilst the jurisdiction point does not appear to have featured and whilst it is also unclear as to precisely what happened in the District Court save that the charge must have been entered as otherwise no remand would have been possible it is noteworthy that the effect of the order was to prohibit the further prosecution of the applicant on the conspiracy charge In O Brien v Special Criminal Court Anor 2008 4 I R 514 the applicant was arrested on the 6 th April 2004 at 8 45 p m under s 30 of the Offences against the State Act 1939 as amended the Act of 1939 on suspicion of being a member of an unlawful organisation His original detention was subsequently extended by a further twenty four hours On the 8 th April at 5 25 p m the D P P directed that he be brought before the Special Criminal Court and there charged with such offence No immediate action was taken following receipt of this direction At 8 25 p m he was released from his s 30 detention and at 8 35 p m he was rearrested under s 4 of the Criminal Justice Act 1997 in respect of the same offence Having ascertained that the Special Criminal Court would be sitting on the 9 th April at 12 00 midday the gardaí informed the applicant that he would be brought before that sitting of the Court and there charged with the offence in question Thus the applicant was originally arrested under s 30 of the Act of 1939 and was later rearrested under s 4 of the Act of 1997 In the proceedings instituted several grounds of argument were advanced Only one is of concern to this appeal Where a person having previously been arrested and detained under s 30 of the Act of 1939 and later released without warrant is rearrested under s 4 of the Act of 1997 that rearrest is subject to the specific statutory requirements of s 30 A of the Act of 1939 as amended Subsection 3 of s 30 A which was inserted by s 11 of the Offences against the State Amendment Act 1998 reads Notwithstanding subsection 1 of this section the person to whom that section relates may be arrested for any offence for the purpose of charging him with that offence forthwith In other words it is identical to s 10 2 of the Act of 1984 The allegation in O Brien of interest to this Court rests on s 30 A 3 of the Act of 1939 under which a person s rearrest is prohibited unless it is for the purpose of charging him forthwith with the offence for which he was rearrested In her judgment Denham J with whom Murray C J agreed rejected the test within the section as being that of as soon as practicable It was as the section said forthwith At p 527 it is stated Therefore it is necessary to consider whether the applicant was charged pursuant to s 30A 3 that is forthwith The word forthwith is not a technical term nor a term of art It should be given its common and usual meaning It is defined in the Concise Oxford Dictionary as immediately without delay Thus the law requires that a person in the position of the applicant be charged immediately without pause or delay The term forthwith requires immediate action This is in contrast to the pragmatic requirement in the term as soon as practicable Having then posed the relevant question the learned judge continued He was arrested at 8 35 p m on 8 th April 2004 and charged before the Special Criminal Court shortly before 12 00 noon on 9 th April 2004 In all the circumstances this was as soon as practicable but this is not the requirement of the law The law required that he be charged forthwith and that was not done Therefore his detention prior to charging was unlawful This is therefore clear authority directly on the point under consideration Fennelly J with whom Murray C J also agreed delivered a separate judgment Having set out the purpose of the subsection namely to prevent abuse by repetitive detention he stated that the sole question was whether the applicant was charged forthwith In contrast this test imposed a more stringent requirement than as soon as practicable With counsel s submission that the word forthwith must be equated with immediate or at once the learned judge agreed In answer to practicable problems which may be encountered such as travel contacting judges or assembling courts the judge responded that the answer is I think that a person does not have to be brought before a court to be charged At p 536 Fennelly J concluded Consequently because the applicant was not charged forthwith upon his arrest his further detention thereafter was unlawful That is because the arrest had to be for the purpose of charging him As a result he was not lawfully brought before the Special Criminal Court It seems to me that the essence of the decision on this issue was governed by the construction of the word forthwith I believe that this is more likely than any suggestion that the decisive factor was not one of time but of purpose It would have been open on the evidence to conclude that the purpose of the arrest was to detain the applicant overnight and thereafter to bring him before the Special Criminal Court for the purpose of charge If that had been the basis neither reference to nor reliance on the adverb would have been necessary It is therefore more likely in my view that the Court s decision was on the forthwith issue That being the case O Brien can be considered as a direct authority on this point There are many situations not covered by s 10 2 of the Act of 1984 I mention a number only by way of illustration there may be many more The section has no application where i the purpose of the rearrest is unrelated to charging the person such other reasons for rearrest may relate to ongoing investigations or perceived flight risk but clearly are not confined to these examples ii the purpose is not to charge the person with the offence grounding his rearrest iii at any time pre charge a decision is made not to charge the person with the offence last mentioned the obligation to remain within the section is a continuous one iv at any time pre charge the gardaí relative to that person engage in any activity by act or omission which is not directly and immediately related to charging the arrested person and v the charging is not forthwith even if all of the other ingredients within the subsection are satisfied On the other hand the section clearly applies to a person who i following arrest has been detained pursuant to s 4 2 of the Act of 1984 It is immaterial whether the detention period has or has not been extended and ii is rearrested in respect of any offence so as to charge him with that offence forthwith The offence referred to is not confined to that which caused his arrest in the first instance As above stated the threshold is not as soon as practicable or indeed even as soon as possible The preferred test was deliberately chosen no doubt to minimise the intrusion into one s constitutional right to freedom Given s 4 of the Act of 1984 one can readily see the justification for this Just as the right to liberty has not diminished neither has the necessity to justify its abridgment The legislature confirmed this view as when reacting to O Brien it reaffirmed by retention this requirement of forthwith albeit adding into s 30 A 3 of the Act of 1939 the further option of rearrest for the purpose of bringing the person before the Special Criminal Court as soon as practicable s 187 of the Criminal Justice Act 2006 No amendment to s 10 2 of the Act of 1984 however was made Thus the adverb forthwith is an integral part of the statutory safeguard and in its context must be construed by reference to its plain and ordinary meaning Dictionary definitions can be a guide and in some cases are helpful All of quality offer in most cases several potential meanings for any word search Of necessity this is the purpose of a dictionary It suggests many options but leaves the definitive meaning to the context of the inquirer The definition of forthwith is no different A few examples of its potential meaning include at once immediately instantly promptly quickly directly now like a shot or with no time intervention In my view when this issue of law is raised there must be a finding that on rearrest the person is charged forthwith otherwise s 10 2 of the Act of 1984 is breached I do not agree that a rearrest for the purpose of charging forthwith is sufficient if on the facts the arrested person has not actually been charged forthwith The consequences of the former fail to take account of or give meaning to the very requirement of the subsection On that view once the purpose of the rearrest is to charge forthwith it matters not for how long the actual charge is delayed or the reasons therefore absent any mala fides provided the other elements of the subsection have not been breached That could lead to an abuse of freedom whether deliberately or otherwise The provision was designed to prevent both The adverb forthwith is an adverb of time time present and not time past or time to come It answers the question as to when the arrested person must be charged It qualifies not the purpose of the arrest but the timing of the charge However it must be viewed in context in particular by reference to the provisions of ss 4 and

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  • charged at all or be the subject of a one two or three year ban as opposed to a four year ban should he fail or refuse to provide a sample I noted that this was a level of information that Sgt Synnott was under no obligation to provide and did not provide in the instant case 24 I dismissed the charge against the accused on the basis that he had been denied a right of reasonable access to a solicitor and that the refusal by the accused may have occurred as a consequence of the breach of that right What the Gardaí told the defendant 10 As found by the learned District Judge a garda read to the defendant who was a person in custody the contents of Form C72 This is entitled Information for Persons in Custody Under the heading Legal Advice it is stated At any time while in custody you may if you wish consult and communicate privately with a solicitor Any such consultation or communication must take place in the Garda Station in writing or by telephone Emphasis added 11 The defendant was also told that if he did not request the services of a solicitor at the time this right was first notified to him that fact would not preclude him from doing so later Source of the right to consult a solicitor 12 There are a number of sources for the right of a person who is detained by the Garda Síochána to consult with a solicitor From the point of view of the average lay person in custody the most obvious source is simply what he is told by the gardaí The gardaí are required to give him information on this topic by reason of the statutory Regulations for the treatment of Persons in Custody SI 119 of 1987 Insofar as these were relied upon by either side on the hearing of this appeal they provide omitting irrelevant material 8 1 The Member in Charge shall without delay inform an arrested person or cause him to be informed a In ordinary language of the offence or other matter in respect of which he has been arrested b That he is entitled to consult a solicitor This information shall be given orally The Member in Charge shall also explain or cause to be explained to the arrested person that if he does not wish to exercise the right in relation to consulting a solicitor immediately he will not be precluded thereby from doing so later 11 1 An arrested person shall have reasonable access to a solicitor of his choice and be enabled to communicate with him privately 13 But the source of the right of a person in custody to consult a solicitor does not depend simply on the statutory instrument cited It is a right of a constitutional nature as has been quite explicit in Irish Law and in the law of the European Convention on Human Rights for a considerable time 14 A person who is deprived of his liberty and thus reduced to a state of captivity by the State or its agents is so treated following an arrest a lawful deprivation of liberty usually but not invariably at the hands of the police Classically an arrest was solely for the purpose of bringing a person before a court However apart from the specific provisions of the Offences Against the State Acts a series of statutes notably since the 1970s have mandated the arrest of a person for purposes other than bringing him before a court e g to search him to apply forensic or other tests to him to question him or as in this case to produce evidential material by requiring him to exhale into an intoxilyser 15 It is to be noted that although this was the specific purpose of the present arrest it was accompanied by such common features of arrest as according to the custody record searching the defendant and later locking him in a cell for a period of hours It thus cannot be regarded as a merely technical or transient form of detention just for the purpose of getting the defendant very speedily to provide a breath specimen and then sending him on his way 16 In circumstances where a person is detained in consequence of an arrest it has been long established that he is entitled to consult with a lawyer 17 In D P P v Buck 2002 2 IR 268 where Keane C J said at p 281 It would seem in any event to be a logical corollary of the statement of law by this Court in The Emergency Powers Bill 1976 1977 IR 159 i e that the detention of a person against his or her will pursuant to a statutory power is permissible only when its constitutional right of reasonable access to a solicitor is observed It would seem to follow inexorably that his or her detention becomes unlawful as soon as that right is denied Emphasis added 18 Similarly in D P P v Madden 1977 IR 336 O Higgins C J said The Court is satisfied that a person held in detention by the Garda Síochána whether under the provisions of the Act of 1939 or otherwise has got a right of reasonable access to his legal advisors and that refusal of a request to give such reasonable access would render his detention illegal Of course in this context the word reasonable must be construed having regard to all the circumstances of each individual case and in particular as to the time at which access is requested and the availability of the legal adviser or advisers sought Factual aspects 19 In the present case as may be seen from the Case Stated the learned trial judge held a That the sole reason for refusing the request for a solicitor when it was made immediately after a statutory requirement had been made of the defendant

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  • High Court found that the applicant had established the grounds for disqualification of the respondent under sections 160 2 b and d of the Act of 1990 but that the Court was exercising its discretion not to disqualify the respondent The trial judge dealt with this case with conspicuous care and sympathy and an impressive willingness to seek to place the respondent and his conduct in the precise context of the time having regard to his age experience and commercial practice If this decision could be characterised as merely the exercise of discretion by the trial judge then I would have accepted it without reservation notwithstanding my view that the result appears very lenient However having considered the argument made by counsel I am driven to the conclusion that there are in the judgment three interrelated errors of principle which are central to the decision of the High Court and accordingly which mean the decision must be reversed First although the judgment under appeal does not itself cite any authority it is clear that in identifying the purpose of disqualification it seeks to paraphrase the oft cited passage from the judgment of Browne Wilkinson V C in In re Lo Line Electronic Motors Ltd and others 1988 Ch 477 where he stated at p 486 that The primary purpose of the section is not to punish the individual but to protect the public against the future conduct of companies by persons whose past records as directors of insolvent companies have shown them to be a danger to creditors and others However the paraphrase contained in the High Court judgment converts the negative not the primary purpose formula in Lo Line into a positive statement that the only function of the section is to prevent the respondent from acting as an auditor where the evidence shows as a matter of probability that the person would present a current risk to the public This is in my view significantly different from the Lo Line formulation The second and related error is the tendency to treat the observations in Lo Line and a fortiori the paraphrase in the High Court judgment as a gloss on the statute so as to replace consideration of the words and structure of the statute itself Not only does this deprive the court of the guidance to be obtained from the entirety of the section in its context it also means that that the court does not have the benefit of the decision making structure that the section has been held to require The third matter is perhaps a consequence of the first two It follows almost ineluctably from the two matters already identified that the focus of a court taking this approach will be on the possibility of future wrongdoing something inherently difficult to establish to the satisfaction of a court particular to the high standard that the disqualification procedure has been held to require By the same token a court is almost disabled from considering or at least giving sufficient weight to something to which in my judgment the Act of 1990 attaches considerable significance namely the consideration of a respondent s past conduct and the gravity attaching to it When such a lopsided posture is adopted it is much more likely that a court will find it difficult to satisfy itself to the level required that disqualification is necessary thus leading to decisions which in my view at least are more indulgent to respondent wrongdoers than the Act intends It is necessary to consider each of these matters in some further detail The critical passage from the High Court judgment is clearly referable to and seeks to paraphrase the well known observations of Browne Wilkinson V C in In re Lo line Electronic Motors Ltd and others 1988 Ch 477 at pp 487 488 What is the proper approach to deciding whether someone is unfit to be a director The approach adopted in all the cases to which I have been referred is broadly the same The primary purpose of the section is not to punish the individual but to protect the public against the future conduct of companies by persons whose past records as directors of insolvent companies have shown them to be a danger to creditors and others Therefore the power is not fundamentally penal Ordinary commercial misjudgement is in itself not sufficient to justify disqualification In the normal case the conduct complained of must display a lack of commercial probity although I have no doubt that in an extreme case of gross negligence or total incompetence disqualification could be appropriate This dictum has been cited with approval in this jurisdiction in Cahill v Grimes Readymix 2002 1 I R 372 and Murphy Murray and McGuinness J J concurring and In the Matter of Wood Products Longford Ltd Director of Corporate Enforcement v McGowan 2008 4 IR 598 Fennelly Denham and Geoghegan J J concurring and Director of Corporate Enforcement v Byrne 2009 2 I L R M 328 Denham Fennelly and Macken J J concurring Counsel for the appellant argues however that even on its own terms the statement that t he primary purpose of the section is not to punish the individual implies that there are other purposes and that the section cannot be reduced to a question of whether the individual can be trusted to be involved in the running of a company or to act as an auditor of limited companies It is I consider a significant and unjustified shift to move from the negative and qualified statements that the primary purpose of this action is not to punish the individual and the power is not fundamentally penal to a positive and absolute assertion that the only function of the Court is to prevent a respondent from acting as an auditor or other officer where the evidence is sufficient to demonstrate that as a matter of probability that the person in question would present a current risk to members of the public This shift is not justified by the language of Lo Line since a primary purpose necessarily implies other purposes nor by authority The courts both in this jurisdiction and in the United Kingdom have identified other important purposes of the disqualification regime First and most importantly the section manifestly contains a deterrent element In Director of Corporate Enforcement v Byrne Denham J observed at para 22 vii that there is an element of deterrence in the exercise of the court s discretion and in In re Wood Products Ltd Fennelly J observed at para 48 Denham and Geoghegan J J concurring I agree however with the written submissions of the applicant who suggests that there should be an element of deterrence in the exercise of the discretion This in turn is consistent with United Kingdom authority see for example the observations of Hoffman L J as he then was in In re Grayan Building Services Ltd 1995 Ch 241 at 253 Parliament has decided that it is occasionally necessary to disqualify a company director to encourage the others Again in In re Wood Products Ltd Fennelly J identified a closely related purpose of the disqualification regime that of improving corporate governance In that case at para 46 Fennelly J quoted with approval the judgment of Henry L J in In re Grayan Building Services Ltd at p 257 as follows The concept of limited liability and the sophistication of our corporate law offers great privileges and great opportunities for those who wish to trade under that regime But the corporate environment carries with it the discipline that those who avail themselves of those privileges must accept the standards laid down and abide by the regulatory rules and disciplines in place to protect creditors and shareholders The parliamentary intention to improve managerial standards is clear The statutory corporate climate is stricter than it has ever been and those enforcing it should reflect the fact that Parliament has seen the need for higher standards Having quoted this passage Fennelly J at para 48 observed that it is part of the policy of the section to improve corporate governance adding that c ourts have become increasingly vigilant and less tolerant in relation to lax standards and disregard of the law Balcombe L J in Secretary of State for Trade and Industry v Langridge 1991 Ch 402 spoke at pp 413 414 to the same effect In my judgment the scope and purpose of the Act is clear The ability to trade through a company with the protection of limited liability and with the use of capital subscribed by third parties is of great economic advantage and confers considerable privileges on persons so enabled These privileges involve corresponding responsibilities and the public in the form of creditors shareholders and employees needs to be protected from persons whose conduct has shown that they have abused those privileges a ccordingly the purpose of the Act is to protect the public and its scope is the prevention of persons who have previously misconducted themselves in relation to companies or who have otherwise shown themselves as unfit to be concerned in the management of a company from being so concerned It is also this mix of factors and in particular the importance of deterrence as a factor which explains why the process of fixing a period of disqualification is most closely approximated to the sentencing process In Director of Corporate Enforcement v D Arcy 2006 2 I R 163 Kelly J at p 179 quoted with approval the observations of Lord Woolf M R in Re Westmid Packing Ltd 1998 2 All E R 124 at pp 131 132 where having quoted the well known dictum of Browne Wilkinson V C in Lo Line he continued o ther factors come into play in the wider interests of protecting the public i e a deterrent element in relation to the director himself and a deterrent element as far as other directors are concerned Despite the fact that the courts have said disqualification is not a punishment in truth that is the exercise being engaged in is little different from any sentencing exercise The period of disqualification must reflect the gravity of the offence It must contain deterrent elements That is what sentencing is all about and that is what fixing the appropriate period of disqualification is all about What Vinelott J in Re Pamstock Ltd 1994 1 B C L C 716 at 737 called tunnel vision i e concentration on the facts of the offence is necessary when considering whether a director is unfit In relation to the period of disqualification the facts of the offence are still obviously important but many other factors ought and in reality do come into play w e do not consider it would send out a wrong message to fix the period of disqualification by starting with an assessment of the correct period to fit the gravity of the conduct then allowing for the mitigating factors in much the same way as a sentencing in court would do I observe that the approach of fixing a period by reference to the gravity of the conduct is not easily reconciled with an approach that the protection of the public in the future is the only function of the Act Indeed the judgment in Lo Line itself recognises at p 486 the effect of disqualification is penal at least in part Since the making of a disqualification order involves penal consequences for the director That is why the Court considered that elaborate fair procedures protecting the interests of the respondent had to be followed before a court could properly make an order of disqualification It does not seem realistic to argue otherwise or indeed to contend that this obvious effect of such disqualification was not contemplated by the legislature In my view these observations in the decided cases are wholly consistent with the content and structure of s 160 of the Act of 1990 It seems to me that on consideration of the section as a whole it is a significant error to characterise the section as having only a single purpose that of protecting the public from the respondent in the future It is I think important to consider the disqualification regime in its entirety Section 160 as amended by ss 14 and 42 of the Company Law Enforcement Act 2001 provides a number of circumstances in which a person may be disqualified from acting as an auditor director or other officer of a company Section 160 1 provides for mandatory disqualification for a period of five years from the date of conviction on indictment of any indictable offence in relation to a company or involving fraud or dishonesty Section 160 1 A provides for mandatory disqualification of a person who fails to comply with s 3 A 1 of the Companies Amendment Act 1982 or s 195 8 of the Principal Act which relate to notification of the disqualification in another country Section 160 2 as amended is discretionary and provides as follows Where the court is satisfied in any proceedings or as a result of an application under this section that a a person has been guilty while a promoter officer auditor receiver liquidator or examiner of a company of any fraud in relation to the company its members or creditors or b a person has been guilty while a promoter officer auditor receiver liquidator or examiner of a company of any breach of his duty as such promoter officer auditor receiver liquidator or examiner or c a declaration has been granted under section 297A of the Principal Act inserted by section 138 of this Act in respect of a person or d the conduct of any person as promoter officer auditor receiver liquidator or examiner of a company makes him unfit to be concerned in the management of a company or e in consequence of a report of inspectors appointed by the court or the Director under the Companies Acts the conduct of any person makes him unfit to be concerned in the management of a company or f a person has been persistently in default in relation to the relevant requirements or g a person has been guilty of 2 or more offences under section 202 10 or h a person was a director of a company at the time of the sending after the commencement of section 42 of the Company Law Enforcement Act 2001 of a letter under subsection 1 of section 12 of the Companies Amendment Act 1982 to the company and the name of which following the taking of the other steps under that section consequent on the sending of that letter was struck off the register under subsection 3 of that section or i a person is disqualified under the law of another state whether pursuant to an order of a judge or a tribunal or otherwise from being appointed or acting as a director or secretary of a body corporate or an undertaking and the court is satisfied that if the conduct of the person or the circumstances otherwise affecting him that gave rise to the said order being made against him had occurred or arisen in the State it would have been proper to make a disqualification order otherwise under this subsection against him Section 160 3 provides for conclusive proof that a person has been persistently in default in relation to the relevant requirements under s 160 2 f by proof that in any five year period he has been adjudged guilty of three or more defaults in relation to those requirements Sections 160 3 a and 3 b make consequential provisions in relation to subsections h and i respectively Subsection 8 provides for relief from an order of disqualification or deemed disqualification either in whole or in part Section 160 9 A provides for the alternative of a declaration under s 150 restricting a person from acting as a director of a company other than on the terms set out in the section Subsections a to f of s 160 were contained in the Act of 1990 and ss g to i were added by the Company Law Enforcement Act 2001 It seems clear that the complexity and variety of s 160 cannot be reduced to a single touchstone whether identified as the primary purpose or the only function of the Act Instead the Act ranges from very serious matters requiring mandatory disqualification to matters which might in certain circumstances be regarded as regulatory posing no immediate or obvious threat to the public It is also significant in my view that the deemed disqualification under s 160 1 is mandatory The consequence of mandatory disqualification follows upon the conviction irrespective of the nature of the matters giving rise to the conviction their age or any prediction as to the future risk to the public from the individual concerned It is clear therefore that the section contains a number of different elements Reducing this section to a single function excludes a number of factors which are plainly intended objectives of the Act and renders the consequent application of the Act likely to be unbalanced and one dimensional In my view it is a related and perhaps a more significant error to seek to apply the disqualification regime by reference to a single gloss on the provisions of the Act whether phrased as primary purpose or only function For reasons already touched on such an approach risks a misconstruction of a system of disqualification which is complex and contains many elements reflecting different legislative concerns Such a starting point also leads almost inevitably to an approach which treats the legislation as if it contains a single one step test which is largely forward looking and essentially discretionary rather than the structured approach which in my view the legislation requires In Director of Corporate Enforcement v Byrne Fennelly J referred at para 64 to the judgment of Dillon L J in Re Sevenoaks Stationers Ltd 1991 Ch 164 at p 176 where he deplored the tendency to treat the Lo Line passage as judicial paraphrases of the words of the statute which fall to be construed as a matter of law in lieu of the words of the statute when the true question to be tried was one of fact Those observations are particularly apposite here In In re Wood Products Ltd Fennelly J also identified an error in the decision under appeal which in my view is instructive in the present case There the trial judge had decided not to disqualify the director in question holding that on balance the director had not been shown in the event to be unfit to be a director and in the exercise of the Court s discretion the Court decided not to disqualify the director because of inter alia the impact of disqualification on a company which had a number of employees It may be noted therefore that the High Court in that case applied a single broadly discretionary test akin to considering whether it was in the public interest to disqualify the particular respondent As Fennelly J observed this was an illogical departure from the structure of the Act The Act requires a two stage inquiry First the court must consider whether one or more of the subparagraphs of s 160 2 have been established These in the words of Fennelly J are jurisdictional triggers or as counsel in this case put it gateways to the second stage of the inquiry which is a consideration of the court s discretion In that case there had in fact been no finding of unfitness and as Fennelly J pointed out at para 32 of his judgment in the absence of a finding on fitness the judge has not established jurisdiction to make a disqualification order It was not logical for her to proceed to consider the exercise of her discretion The Act of 1990 as Fennelly J observed requires a two stage inquiry First the court must determine as a matter of objective forensic inquiry whether one or more of the criteria under the subparagraphs of s 160 2 has been established to the degree and level required These are the gateways to the second stage which is the exercise of the court s discretion It is I think important to follow the decision making structure thus implied in the Act particularly when the inquiry involves such broad and general concepts as future unfitness to be concerned in the management of the company Such an approach highlights the important fact that this case does not concern a single issue of unfitness under s 160 2 d but also a more focussed issue of breach of duty under s 160 2 b A consideration of the structure of the subparagraphs of s 160 2 is useful in seeking to interpret the subparagraphs in issue in any individual case It is noteworthy that only subsections d and e refer expressly to the concept of unfitness It has been observed that in one sense s 160 2 d can be said to encapsulate all the other grounds Looked at in another way this subsection could be said to be a catch all provision capturing conduct not specifically identified in the other subsections but which may nevertheless justify disqualification subject to the court s discretion It is important therefore that the Act specifies conduct in the other subsections of s 160 2 which the Act itself appears to consider to render a person presumptively at least unfit to be a director In that way subsection d sheds light on the other subsections By the same token the other subsections gives some indication of the type of conduct unspecified in subsection d itself which would justify the making of a disqualification order under that subsection Given the vagueness of the concepts being discussed the perspective thus provided offers a valuable degree of focus to an inquiry under s 160 of the Act of 1990 If this two stage structure is adopted it will necessarily facilitate scrutiny of the decision in the future More importantly it would make the decision making process itself more rigorous In this case for example it would focus attention on the specific breaches of s 160 2 b which it must follow the trial judge had found to have occurred It would also make it more difficult to characterise all of the defaults complained of as occurring so long ago or at a time when Mr McCann could be described as a relatively junior employee albeit a fully qualified accountant with his own practice and under the influence of Mr Traynor and Mr Field Corbett On the contrary it is apparent when the details of the individual matters are considered that one of the most serious matters complained of the repeated assertion by Mr McCann to an authorised officer that the Traynor letter was genuine occurred over an extended three year period between 1999 and 2002 at a time when Mr McCann s business was well established when Mr Traynor was long since deceased and when moreover it was publicly known that Kentford a business of which Mr McCann had been both director and auditor had been the vehicle used by the late Mr Traynor for a sophisticated and extensive scheme of tax evasion A further important consequence follows in my view from the matters already identified If the Court adopts a single forward looking test derived from a gloss upon the observations of Browne Wilkinson V C in Lo Line then in my view it is almost inevitable that the inquiry will be focussed almost exclusively on the future conduct of the respondent Such an inquiry is something a court will almost always consider to be somewhat speculative At the same time if the matter is approached on the assumption that the Act of 1990 has no penal consequence or deterrent function then almost of necessity the past conduct of the respondent becomes much less relevant However the consideration of the behaviour of the respondent in the past and whether or not it can be established as a matter of fact and if so the assessment of the gravity of such conduct are all matters which fall more naturally within the powers and experience of the court In my view it is clear from an analysis of the Act that the Act directs attention to that past conduct as certainly the best if not the only guide to the necessity for disqualification It will be apparent therefore that a test of future unfitness either detached from or at least considerably distant from an assessment of the gravity of past conduct is a test which is skewed in favour of potential respondents It has also been observed that given the penal consequences of a disqualification order for any director or other officer that a court must feel a high degree of confidence before making any such disqualification order In such circumstances it becomes increasingly likely that a court adopting the approach of a single forward looking test of future unfitness and properly requiring a high degree of proof will come to a conclusion which will not achieve the statutory objectives It seems clear to me that the Act of 1990 considers that past conduct is the key to disqualification and which conduct in itself demonstrates either the breaches of duty or general unfitness which can justify disqualification unless the court in the exercise of discretion considers that such an order should not be made This is a more focussed inquiry and one which is rooted in the Act It is an approach which has been repeatedly invoked in judgments of the courts both in this country and in the United Kingdom Thus for example the well known passage in Lo Line identified the primary purpose of the section as protecting the public against the future conduct of companies by persons whose past records as directors have shown them to be a danger to creditors and others Emphasis added In the judgment in Secretary of State for Trade and Industry v Langridge 1991 Ch 402 already referred to above Balcombe L J stated at p 414 that the purpose of the Act was to protect the public and its scope is the prevention of persons who have previously misconducted themselves in relation to companies or have otherwise shown themselves as unfit to be concerned in the management of a company from being so concerned Emphasis added In the judgment of Finlay Geoghegan J in Re Ansbacher Cayman Ltd Director of Corporate Enforcement v Collery 2006 I E H C 67 a number of principles were set out for the determination of an appropriate disqualification period one of which was expressed as follows at para 31 The period of disqualification should reflect the gravity of the conduct as found by the inspectors which makes the respondent unfit to be concerned in the management of a company Emphasis added This aptly encapsulates the close link which the Act in my view effects between the past conduct inquired into and the unfitness or other default justifying disqualification In this regard counsel referred us to the judgment of Hoffman L J as he then was in In re Grayan Building Services Ltd at p 254 where he approved the approach of Vinelott J in Re Pamstock Ltd 1994 1 B C L C 716 at p 736 where he said that it was his duty to disqualify a director whose conduct fell short of the standard of conduct which his today expected of a director of a company which enjoys the privilege of limited liability On that basis Hoffman L J considered that the only thing that the court could have regard to was the conduct charged This is the tunnel vision referred to in some of the decisions While the decisions of the U K Courts have been shown to be of considerable assistance in this field they still must be read against the different statutory background where disqualification is mandatory but where the disqualification process is generally only triggered by insolvency It may be therefore that the observations of Lindsay J in Re Polly Peck International Plc No 2 1994 BCLC 574 although disapproved of by Hoffman L J in In re Grayan Building Services Ltd as a matter of English law may nevertheless be closer to the approach required under the Irish Act Lindsay J would have permitted a more broad ranging inquiry but it is significant that it was still an inquiry into past conduct rather than a necessarily vague and unspecific speculation as to future conduct He suggested at p 584 that evidence of past conduct which would justify a present finding of past unfitness to the required level may unless the respondent otherwise satisfies the court be taken by the court also to prove a present unfitness to that same required level Lindsay J also cites at pp 578 579 of that judgment the following useful statement of Gibson J in Re Bath Glass 1988 B C L C 329 at 333 which was specifically approved by the Court of Appeal in Re Sevenoaks Stationers Ltd 1991 Ch 164 at p 183 identifying the conduct and behaviour which constitutes such past and present unfitness To reach a finding of unfitness the court must be satisfied that the director has been guilty of a serious failure to perform those duties which are attendant on the privilege on trading through companies with limited liability That is a useful test and one which the respondent on the trial judge s findings must be said to have comprehensively failed It follows and with respect to the learned High Court judge that I consider that it was an error of analysis to address the case as if there was a single discretionary and forward looking test i e whether the respondent would pose a danger to creditors in the future The true test is contained in the words of the section The section poses a two stage test First whether conduct falling within any of the subcategories of s 160 2 has been established as a matter of fact Second whether the court in the exercise of its discretion should proceed to disqualify Had this approach been taken in this case it would in my view have revealed that the conclusion to which the trial judge came was unduly indulgent Indeed I think it can be fairly said that it was the framing of the question as one of proof of future dangerous behaviour which led the Court to the conclusion to which it came In the first place it must follow from the trial judge s findings in favour of the applicant with regard to all the matters in respect of which he made complaint that subparagraphs b and d of s 160 2 were satisfied and that it had therefore necessarily been established that the respondent was in breach of his duty both as a director and auditor and that on that basis and otherwise he was by definition unfit to be involved in the management of a company It is only after and in the light of such a finding that the court should come to a consideration of the exercise of its discretion The exercise of identification of the particular breaches of duty and the conduct amounting to unfitness in this case is a sobering exercise First the respondent was plainly in breach of his duty as a director of the company The fact is that the trial judge found the respondent was probably unaware even of the very nature of the company s business activity Nor was this a case of a director making wrong even reckless decisions in the course of running a genuine business which had run into financial difficulties Nor indeed was the inaction of the respondent due to ignorance laziness or a foolish trust in other directors to run the business The purpose of the respondent becoming a director was to provide the appearance of compliance with the requirement of corporate governance under the Companies Acts and to carry out those tasks such as the signing of bank mandates which the law or prudent business practice or both require to be carried out by directors It follows from the judge s findings that the respondent while auditor of the company was also a director of the company That is a breach of a statutory obligation imposed by s 187 2 a of the Act of 1990 and one of the few obligations imposed upon an auditor by the Act of 1963 It follows that this matter in itself satisfied section 160 2 b It is also an unavoidable conclusion from the findings of the trial judge that the respondent was in breach of his duty as an auditor for each of the years during which he was the director of the company Again this is not merely a case of errors however serious in the carrying out of a genuine audit There is in truth no objective evidence that any audits were carried out since the respondent claims to have handed all his audit working papers to Mr Traynor But if any audit was carried out it was perfunctory at best Perhaps the most telling finding is the judge s observation made in excusing the respondent from any knowledge of the illegality which was taking place in relation to Kentford that the respondent was while director and auditor unaware of the nature of the company s business activity As the trial judge found the respondent did not carry out his basic duty as an auditor There was the appearance of compliance with the statutory formalities there was no performance of the substance This was a plain and complete breach of s 190 6 of the Act of 1990 Accordingly this also satisfied section 160 2 b The trial judge found that the respondent s resignation as director did not occur on the 14th March 1989 as he maintained but rather was backdated to that date It is not stated in the judgment but it is an unavoidable conclusion that the purpose of that backdating was to seek to conceal the breach by the respondent of his obligation under s 187 2 a of the Act of 1990 as an auditor not to be a director of the company I do not think that the conduct can be excused by a general reference to a culture of backdating documentation in order to correct the paper record The backdating of the respondent s resignation did not correct the paper record it created one and one which it must be said was false and intentionally so The respondent maintained throughout the High Court hearing that he had in fact resigned as of March 1989 and furthermore had procured correspondence from Mr Field Corbett and his daughter both then resident in the Isle of Man and which purported to confirm his resignation as of March 1989 The trial judge rightly placed no faith in that correspondence The judge would have been entitled to consider the entirety of the respondent s behaviour in this regard as conduct which fell below the standards of behaviour required of a director and auditor and thus justifying a finding under section 160 2 d Significant though the foregoing matters were in themselves and in the picture of activity or more accurately deliberate non activity which they revealed there is no doubt in my mind that the purported letter of the 23rd January 1990 is the most serious matter in this case and was perhaps the catalyst in leading the Director of Corporate Enforcement to bring this application It bears repeating that this was the only Kentford document retained

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  • owner of the lands by right of survivorship free from the judgment mortgages For the appellant it was contended that the registration of the judgment mortgages against the interest of Mr Lawlor effected severance so that Mr Lawlor thereupon became the owner of an undivided interest subject to the judgment mortgages and that on his death that undivided interest became part of his estate and the judgment mortgages remained as an encumbrance affecting the same In a judgment delivered on the 30th July 2008 the High Court Laffoy J dealt in detail with severance of a joint tenancy by the registration of a judgment mortgage in relation to unregistered land In relation to registered land she considered the Registration of Title Act 1964 and the changes thereby effected in the system of registration of title and in particular considered the effect of section 4 c of the Succession Act 1965 and section 62 section 69 and section 71 of the Registration of Title Act 1964 The first question for decision was whether registration of a judgment mortgage on registered land in which a joint tenancy exists severs the joint tenancy The High Court held that it did not Further it held that the registration of the judgment mortgages against Mr Lawlor s interest as joint tenant in the lands was subject to Mrs Lawlor s right of survivorship so that in the events which happened that Mr Lawlor pre deceased her without the joint tenancy having been severed she became entitled to be registered as full owner with absolute title freed and discharged from the judgment mortgages From the judgment and order of the High Court the appellant appeals Discussion 1 Does registration of a judgment mortgage against the interest of a joint tenant in registered land sever the joint tenancy Severance converts a joint tenancy into a tenancy in common It occurs where a joint tenant alienates his interest inter vivos or in equity by an enforceable contract to alienate or by the subsequent acquisition of a further estate in the land Thus if one joint tenant creates a mortgage or life interest out of his interest severance occurs York v Stone 1709 1 Salk 158 Re Pollard s Estate 1863 32 L J Ch 657 and Co Litt 302 The creation of a mere encumbrance such as a rent charge however does not effect severance Co Litt 286 A joint tenancy is also severed by partition or by homicide See also The Law of Real Property Megarry and Wade 4th edition pp 404 407 and Challis Real Property 3rd edition footnote at page 367 In relation to unregistered land the Judgment Mortgage Ireland Act 1850 section 7 has the effect that the registration of a judgment mortgage against the share of a joint tenant involves the transfer of the judgment debtor s interest to the judgment creditor as if an effectual conveyance had been made executed and registered Thus registration of a judgment mortgage affidavit effects severance as it destroys one of the four unities unity of title and so creates a tenancy in common McIlroy v Edgar 7 L R Ir 521 In relation to registered land it was generally considered that section 21 of the Registration of Title Act 1891 had the like effect and that registration of a judgment mortgage severed the joint tenancy there remained some doubt about this by virtue of section 45 1 of the Act which provided for the registration of a judgment mortgage as a burden only Section 21 provided as follows 21 1 From and after the date of the registration of any land including in the word land tenements and incorporeal hereditaments the registration of the affidavit required by the Act passed in the session of the thirteenth and fourteenth years of the reign of Her present Majesty chapter 29 and the Acts amending the same in this section referred to as the said Acts for the purpose of registering a judgment as a mortgage upon the land shall be made in the prescribed manner and with such entries as may be prescribed 2 Immediately upon such registration all such and the same consequences in all respects shall ensue and all such and the same rights powers and remedies in all respects shall be acquired and possessed by every or any person as would have ensued or been acquired and possessed by or by reason of the registration of such affidavit in the Registry of Deeds pursuant to the provisions of the said Acts if this Act had not passed The Registration of Title Act 1964 section 71 provides as follows 71 1 The registration of the affidavit required by section 6 of the Judgment Mortgage Ireland Act 1850 for the purpose of registering a judgment as a mortgage shall in the case of registered land be made in the prescribed manner and with such entries as may be prescribed 2 In an affidavit registered after the commencement of this Act the land shall be sufficiently described by reference to the number of the folio of the register and the county in which the land is situate 3 The affidavit shall be expressed to be made by the creditor specified in section 6 of the said Act of 1850 or by a person authorised to make it by section 3 of the Judgment Mortgage Ireland Act 1858 4 Registration of an affidavit which complies with the said sections and this section shall operate to charge the interest of the judgment debtor subject to a the burdens if any registered as affecting that interest b the burdens to which though not so registered that interest is subject by virtue of section 72 and c all unregistered rights subject to which the judgment debtor held that interest at the time of the registration of the affidavit and the creditor shall have such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court Section 69 1 i of the Act of 1964 provides as follows 69 1 There may be registered as affecting registered land any of the following burdens namely i any judgment mortgage recognizance State bond inquisition or lis pendens whether existing before or after the first registration of the land The Act of 1964 accordingly makes it clear that the registration of a judgment mortgage shall rather than operating to transfer the interest of the registered owner to the judgment creditor operate to charge the interest of the judgment debtor subject to the burdens if any registered as affecting the interest of the judgment debtor and burdens which affect registered land without registration by virtue of section 72 of the Act of 1964 and all unregistered rights subject to which the judgment debtor held his interest at the time of registration of the judgment mortgage affidavit The judgment debt can be served out of the interest of a joint tenant who is a judgment debtor and is no different in its effect to a rent charge or other encumbrance affecting the interest of a joint tenant which would not affect the unity of title Section 4 c of the Succession Act 1965 provides as follows 4 c The estate or interest of a deceased person under a joint tenancy where any tenant survived the deceased person shall be deemed to be an estate or interest ceasing on his death The effect of this deeming provision is that for the purposes of the Succession Act 1965 on the death of a joint tenant the lands do not pass to his personal representative and do not form part of his estate This however is a deeming provision only and does not affect the common law and it is the common law which requires a surviving joint tenant to be registered as full owner The effect of the provisions of the Registration of Title Act 1964 section 71 4 is that the registration of a judgment mortgage against the interest of a joint tenant does not effect severance of the joint tenancy as it operates as a charge only and not as a mortgage It has not the effect of divesting the joint tenant of his interest The Act of 1964 in section 62 and in section 71 4 distinguishes between charges created by a registered owner and judgment mortgages The relevant provisions of section 62 are as follows 62 1 A registered owner of land may subject to the provisions of this Act charge the land with the payment of money either with or without interest and either by way of annuity or otherwise and the owner of the charge shall be registered as such 6 On registration of the owner of a charge on land for the repayment of any principal sum of money with or without interest the instrument of charge shall operate as a mortgage by deed within the meaning of the Conveyancing Acts and the registered owner of the charge shall for the purpose of enforcing his charge have all the rights and powers of a mortgagee under a mortgage by deed including the power to sell the estate or interest which is subject to the charge The Conveyancing Act 1881 defines mortgage at section 2 vi as follows Mortgage includes any charge on any property for securing money or monies worth and mortgage money means money or monies worth secured by a mortgage and mortgagor includes any person from time to time deriving title under the original mortgagor or entitled to redeem a mortgage according to his estate interest or right in the mortgaged property and mortgagee includes any person from time to time deriving title under the original mortgagee and mortgagee in possession is for the purposes of this Act a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property The fact that mortgage in the Conveyancing Act 1881 includes a charge and that a judgment mortgage is a charge does not affect the well settled law that a charge on the interest of a joint tenant will not effect severance Thus to come within section 62 the charge must be created by the registered owner and a judgment mortgage not being created by the registered owner does not come within the section and accordingly will not operate as a mortgage pursuant to section 62 6 of the Act A judgment mortgage is registerable under section 69 1 i of the Act The effect of section 71 of the 1964 Act is that registration of a judgment mortgage affidavit creates a burden only it does not operate as a mortgage by deed The registered owner is not thereby divested of his interest and so unity of title is not affected and severance does not occur The judgment creditors remedy is not as mortgagee but rather he has such rights and remedies for the enforcement of the charge as may be conferred on him by order of the Court Finally it is necessary to consider whether the order of the 24th November 2004 in the action taken by Dermot Coyne against Liam Lawlor could have effected severance It is well settled that a binding contract for sale as it divests the joint tenant of his equitable interest in his estate will effect severance However an order for sale of the interest of a joint tenant has not the effect of divesting a joint tenant of his interest thus a judgment mortgage can be registered against the same In Re Scanlon 1897 1 I R 462 The joint tenant will only be divested of his interest giving rise to severance on a purchaser entering into an enforceable contract for sale pursuant to the order for sale Having regard to the foregoing I am satisfied that the respondents joint tenancy has not been severed 2 On the death of a joint tenant of registered land whose interest is subject to a judgment mortgage does the judgment mortgage continue to affect the lands The distinguishing feature of a joint tenancy is the right of survivorship jus accrescendi The last surviving joint tenant will hold the entire land The lands accrue to the surviving joint tenant by right of survivorship and not by descent The right of survivorship is an incident of the title created by the original grant to the joint tenants and it is by virtue of the original grant that the survivor becomes entitled to the entire The estate of a joint tenant ceases on death Any charge created on his interest by the deceased joint tenant in the absence of severance ceases to affect the land on the death of that joint tenant and the surviving joint tenant taking by right of survivorship takes free of the charge Thus Co Litt 286 deals with the matter as follows Also if two joint tenants be seized of an estate in fee simple and the one grants a rent charge by his deed to another out of that which belongs to him in this case during the life of the grantor the rent charge is effectual but after his decease the grant of the rent charge is void so as to charge the land for he who has the land by survivorship shall hold the whole land discharged And the cause is for that he who survives claims and has the land by survivorship and has not nor can claim anything by descent from his companion Later Coke continues as follows By which etc is implied that so it is if one joint tenant acknowledge a recognizance or a statute or suffers a judgment in an action of debt etc and dies before execution had it shall not be executed afterwards But if execution be sued in the life of the conusor it shall bind the survivor And And where Littleton puts the case of a rent charge it is so likewise implied that if one joint tenant grants a common of pasture or of turbary or of estovers or a corody or such like out of his part or a way over the land this shall not bind the survivor for it is a maxim in law that jus accresendi praefertur oneribus and there is another maxim that alienato res praefertur juri accresendi And Here again Littleton shews the reason and the cause wherefore the survivor shall not hold the land charged is for that he claims the land from the first feoffor and not by his companion which is Littleton s meaning when he says that he claims by survivor for the surviving feoffee may plead enfeffment to himself without any mention of his joint feoffee That this was the common law is clear from Lord Abergavenny s Case Pasch 5 Jacobi The headnote reads as follows When judgment is given against one of two joint tenants for life in an action of debt and afterwards that one releases to the other before execution such release shall not bar the execution of the plaintiff But if such joint tenant had died before execution the survivor should hold the land discharged of any execution In the body of the judgment there is a reference to authorities and the judgment continues as follows And upon all the said books it was collected for good law that if two joint tenants be in fee and one grants a rent charge in fee and afterwards releases to the other in that case although to some intent he to whom the release is made is in by the first feoffer and no degree is made betwixt them yet as to the grantee of the rent charge he is under the joint tenant who released and he who survives shall not avoid it after the death of him who released for he who survives by acceptance of the release has deprived himself of the ways and means to avoid the charge for jus accresendi the right of survivorship was the sole means to have avoided it and the right of his survivorship is utterly taken away by the release and so the doubt in 33 H 6 5 a well resolved The common law accordingly is that the right of survivorship arises from the original grant It is an incident of the interest of each joint tenant The interest of a joint tenant cannot survive his death The surviving joint tenant takes not by way of descent from the deceased joint tenant but by virtue of the original grant It follows accordingly that any burden created on the interest of a joint tenant cannot continue to affect the lands after his death The surviving joint tenant will take free of such burden That being so the respondent holds the lands comprised in Folios 573F of the Register County Dublin and Folio 47924F of the Register County Dublin freed and discharged from the appellants judgment mortgages The Land and Conveyancing Law Reform Act 2009 In this judgment I have stated the law prior to the commencement of the Land and Conveyancing Law Reform Act 2009 on the 1st December 2009 except for section 132 which commenced on the 28th February 2010 which is the law applicable to the issues in this case The Act of 2009 makes significant changes in that law Section 30 of the Act provides as follows 1 From the commencement of this Part any a conveyance or contract for a conveyance of land held in joint tenancy or b acquisition of another interest in such land by a joint tenant without the consent referred to in subsection 2 is void both at law and in equity unless such consent is dispensed with under section 31 2 e 2 In subsection 1 consent means the prior consent in writing of the other joint tenant or where there are more than one other all the other joint tenants 3 From the

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