NI High Court: Judge upholds service of cross-border court order in Ireland despite failure to comply with conditions

About this case:

• Citation:
  [2023] NIKB 77
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Kevin Rooney

Background

The National Crime Agency (NCA) brought an application for an Unexplained Wealth Order (UWO) against both of the defendants. This was pursuant to Section 362A of the Proceeds of Crime Act 2002. The application was made ex parte. The purpose of the application for the UWO was to obtain information, in the form of affidavits and documentation, from the defendants, concerning their interests in an address in Loughgall, County Armagh.

The property in question was located in Northern Ireland, while the defendants reside in County Monaghan, Ireland. The court granted the application and made an order to serve the summons outside of the jurisdiction. The court directed that service of the summons would be by personal hand delivery by an officer of the Criminal Assets Bureau to the defendants’ home address in County Monaghan.

When describing the summons, Detective Sergeant Brady, a member of An Garda Síochána, stated:

“I am a Detective Sergeant in An Garda Síochána and I am also an officer of the Criminal Assets Bureau (‘CAB’) duly appointed pursuant to Section 8 of the Criminal Assets Bureau Act 1996, as amended. I say that on Tuesday, 19 July 2022 at 11.30 a.m., accompanied by Detective Inspector Thomas Lynch of the Criminal Assets Bureau, I met with Mr Aidan Grew [The first defendant] outside Monaghan Garda Station, County Monaghan by appointment. Aidan Grew confirmed to me that he would accept service of any documents for himself and on behalf of his wife, Nuala Grew. [The second defendant]”

In September 2022 the defendants entered an unconditional appearance to the originating summons.

Application to set aside service of the originating summons

Subsequently, the defendants made an application to set aside their respective appearances and for leave to enter conditional appearances for the purpose of applying to set aside the service of the originating summons outside the jurisdiction. They sought an order to set aside service of the originating summons on the basis that there was no order of the court granting leave to serve the originating summons outside the jurisdiction.

Alternatively, they sought an order setting aside the order granting leave to serve the originating summons on Aiden Grew outside the jurisdiction, on the basis that the service breached the conditions under which the NCA averred to the court that it would affect service. Finally, they claimed that the service also breached the conditions under which the NCA averred to the court that it would affect service to Nuala Grew.

The defendants’ arguments

The court noted that the affidavit from Detective Sergeant Anthony Brady confirmed that personal service was not affected at the home of both defendants in County Monaghan. Rather, service occurred by appointment with the first defendant at Monaghan Garda Station.

This supported the arguments raised by the defendants, that service as directed by the court was not complied with, meaning that the court should therefore have set this aside. Further, they argued that if the court found this service to be valid in relation to the first defendant, then the service was still not correctly affected on the second defendant. It was submitted that the purported service on the second defendant was via the first defendant, and was therefore in breach of the conditions under which the court granted leave to serve the originating summons.

The defendants argued that the conditions for service were therefore not complied with, and the court granted its order under a misapprehension as to how the order would be given effect.

Consideration

Ultimately, having carefully considered these submissions, the court determined that there had been valid service of the defendants. Firstly, the court noted that the primary objective of any order granting leave to serve outside a jurisdiction must be to ensure that provision is made to effect good and proper service of the originating summons.

Based on the affidavit from Detective Sergeant Brady, it was clear that the first defendant confirmed that he would accept service of any documents on his behalf and on behalf of his wife. Although the court accepted that it was unclear whether attempts were made to effect service at the property in County Monaghan, this factor was not determinative. What mattered was that, according to Detective Sergeant Brady, the first defendant met two officers of the Criminal Assets Bureau at Monaghan Garda Station by appointment and service was duly affected.

The court highlighted that no affidavits were filed on behalf of the defendants taking any issue with the affidavit of Detective Sergeant Brady. Further, no affidavit was filed by the second defendant stating that the first defendant did not have her authority to accept service of the documents.

Conclusion

As a final point, the court noted that no legal authorities were cited to support the claim that it should have used its power to discharge or vary the order. In the circumstances of this case, the court found the “lack of any persuasive authority” unsurprising. Ultimately, the defendants’ application to set aside their respective appearances and for leave to enter conditional appearances for the purpose of applying to set aside the service of the originating summons outside the jurisdiction was refused.