Hotelier wanted two IBRC staff to face court, judge finds

Dublin hotelier Patrick Halpin's bid to privately prosecute two employees of the Irish Bank Resolution Corporation for alleged deception was motivated by a desire to put them in the dock of a criminal court, the Supreme Court has decided.

"Mr Halpin was not motivated by a genuine desire to invoke the now very limited role of a private individual in the prosecution of criminal offences," Mr Justice Frank Clarke stated in a reserved judgment.

"He was motivated by a desire to secure, by whatever means possible, the attendance of Ms [Mary] Kelly and Mr [Declan] Buckley as accused persons before a criminal court," the judge stated.

He made his finding in a successful appeal to the Supreme Court by Ms Kelly, a case manager with IBRC's Recovery Management Division, and former IBRC director of banking, Mr Buckley, against a High Court refusal to block Mr Halpin's District Court prosecutions.

The appeal was heard before Chief Justice Susan Denham, and Supreme Court Judges Adrian Hardiman, Donal O'Donnell, Elizabeth Dunne and Judge Clarke.

Abuse of process

The court was satisfied that the commencement of the District Court criminal proceedings was an abuse of process and quashed the summonses taken out by Mr Halpin.

Judge Clarke said there was a fundamental flaw in the issuing of the summonses because of the absence of any evidence that there was an arguable or prima facie case that either or both Ms Kelly and Mr Buckley had been guilty of a deception and inducement with the intention of causing loss to Mr Halpin.

He said the proceedings before the District Court involved an abuse of process.

The judge said Mr Halpin had been aggrieved by the way he had been treated in the course of dealings with the bank officials and had taken the view there was at least some element of criminal offence on their part in the manner in which they had dealt with him.

He had sworn an information (a statement of an alleged offence) before the District Court which had made an order issuing summonses requiring the attendance of Ms Kelly and Mr Buckley before the court to answer criminal charges under the Criminal Justice (Theft and Fraud Offences) Act 2001.

Ms Kelly and Mr Buckley had brought judicial review proceedings in the High Court seeking to quash the District Court judge’s decision that had been made under the 1851 Petty Sessions (Ireland) Act. Their application had been dismissed and led to the Supreme Court appeal.

Far-reaching issue

Judge Clarke said the most far-reaching issue in the case arose from a contention by Ms Kelly and Mr Buckley to the effect that a range of recent legislative developments had terminated the private prosecution of criminal offences.

The court found that while criminal prosecutions could still be taken out privately, they had, at an early stage, to be taken over by the Director of Public Prosecutions and progressed to trial on indictment or otherwise dealt with.

The Supreme Court had heard Mr Halpin alleged he had been invited to a meeting with Ms Kelly and Mr Buckley in February 2012 after demands had been served on two of his companies, Elektron Holdings Ltd and Crossplan Investments Ltd, seeking repayment of debts of more than €25 million.

Mr Halpin claimed he was under the impression the meeting had been called to continue a process whereby the companies could continue to trade while arrangements were implemented in relation to repayment of the debts.

He alleged that at the time of the meeting, both Ms Kelly and Mr Buckley were aware a decision had already been made to appoint a receiver to both companies, which had registered offices at 53-55 Park Avenue, Sandymount, Dublin. Ms Kelly and Mr Buckley had contested Mr Halpin’s account of the facts.

Mr Halpin had taken out District Court summonses charging the two bank officials with deception with the intention of making a gain for themselves or of causing loss to another.

In separate criminal summonses, he alleged they had falsely represented that IBRC was prepared to continue a rescue process.

Judge Clarke said Ms Kelly and Mr Buckley had been entitled to have the summonses quashed on grounds of lack of evidence.

The court also held it was now impossible for a private prosecution, commenced under the “common informer system”, to progress to trial at all without a positive decision by the DPP.

At its height, all that could be achieved by the initiation of an indictable offence by way of private prosecution was that it would bring to the attention of the DPP the possibility that an offence of the type alleged may have been committed.