Brian Lenihan Jnr (Dublin West, Fianna Fail)

It is correct to say that the Supreme Court decided in the absence of any expressed provision that the appropriate procedure was by way of plenary summons followed by the exchange of pleadings between the parties. Under the rules of the superior courts, where no expressed procedure is prescribed, all proceedings must be included in that residual category. As no expressed provision was specified in the Proceeds of Crime Act 1996, the Supreme Court ruled as a matter of law that in the absence of an expressed provision, the appropriate provision under the rules of court was to proceed by way of plenary summons and exchange of pleadings.

While the Supreme Court has indicated that on its construction of the rules of court this is the arrangement to be followed, as was its decision in the case to which the Senator referred, it does not mean this must be the procedure. Far from suggesting that this was the appropriate procedure, the Supreme Court was simply construing the rules of court and identifying what procedure, as a matter of law, the rules required. It is still open to the Oireachtas or even to the rules committee in the courts to prescribe otherwise.

The provisions in the Bill allow the matter to appear on a court list at the earliest opportunity with the full case of both parties set out in a formal manner. As drafted, the Bill proposes that proceedings would begin by way of originating notice of motion, which would be grounded on an affidavit. Hence the Criminal Assets Bureau would be obliged to put its case on sworn affidavit before instituting proceedings. Under the arrangement that has obtained since the Supreme Court decision, the Criminal Assets Bureau is not required to do that and can simply make an allegation as I am sure the Senator is aware. Not alone that, this type of procedure with an originating notice of motion grounded on affidavit allows the matter to be brought into the court list at an early opportunity, which is always desirable in a matter of this kind affecting the property rights of an individual.

Were the alternative procedure to apply, by way of plenary summons and statement of claim, with which Senators are familiar from personal injury litigation, matters could drag on for a number of years and proceedings could proceed in a very dilatory manner, without opportunity to bring the substance of the matter to court prior to the close of the pleadings and the service of a notice of trial, at which point it enters the court list. In the case of a matter, which has originated by a notice of motion, the matter can be brought to the court in a matter of weeks.

At that stage the respondent party to the application can put its case on affidavit on oath. The court can then decide, having looked at the case candidly proposed by both sides how the matter can be efficiently disposed of and whether it would require a full trail with evidence heard or whether it can be disposed of on the sworn evidence already before the court. This is the procedure proposed in the Bill. Were we to adopt the alternative procedure, the various pleadings having closed and the notice of trial having been served, the matter would enter a court list and might take a considerable time to be heard.

It is worth noting that the form of procedure in the Bill has been used by the Oireachtas and the court rules committee in other analogous contexts. For example, the enforcement of the planning legislation is done by way of this procedure whereby a notice of motion is issued and served along with an affidavit setting out why the applicant — often, but not necessarily, a local authority — maintains a breach of the planning code has taken place and the matter is then brought into a court list where it can be adjourned from time to time but at least the matter is brought expeditiously before the court. This is a far superior procedure than leaving it to the realm of a residual category in the rules of court whereby a case proceeds by way of plenary summons and statement of claim, which may extend proceedings over a long period of time.

No specification was made as to how the application for an order should be made and in the absence of specific rules of court the Supreme Court decided, as the Senator outlined, in McK. v. F. that the section 3 application was a plenary trial after full pleadings. This is unsatisfactory as it allows any issue about proceeds of crime to be pleaded in general terms so that the parties are not really aware of the case to be made until the trial opens. Under existing legislation, it would be possible for the bureau to start an application on a writ, which would seem very prejudicial to a defendant. Equally the current position means that defendants are under no obligation to specify at an early stage the case they will make. This can allow for the duplication of proceedings and a multiplicity of hearings with unnecessary costs. The provision that applications may be made by originating motion allows for the hearing to be placed on the court list at the earliest opportunity with the full case of both parties set out in a formal and sworn manner.