Man who lost case over €3.4m seized from his home cannot appeal

Retired businessman Ted Cunningham has been refused an extension of time to appeal against the dismissal of his claim the State unlawfully seized £3m sterling (€3.4m) from his home.

The money was seized after gardaí said it was part of the £26.5m Northern Bank robbery in Belfast in December 2004.

Last February, the High Court rejected judicial review proceedings by Mr Cunningham (68) of Woodbine Lodge, Farran, Co Cork, on grounds including he had failed to discharge the onus on him to establish the money belonged to him.

In his action, he did not seek the return of the money but wanted the Garda Commissioner to provide him with an account of what happened to it after it was seized from his home in 2005.

After failing in the High Court, he intended to appeal but did not get his appeal in within the prescribed time limits.

He then had to ask the Court of Appeal to extend that normal time limit.

On Wednesday, the Court of Appeal president, Mr Justice George Birmingham dismissed his application on behalf of the three-judge appeal court.

Mr Justice Birmingham said, while Mr Cunningham formed the intention to appeal within the one-month deadline, he had claimed funds were an obstacle due to him having been barred from engaging in his financial business for five years.

His solicitor had said Mr Cunningham made “extensive efforts” to source funding. It was not until April 1st last he managed to obtain the stamp duty fee required for a notice of appeal.

Mr Justice Birmingham said there was nothing in Mr Cunningham’s affidavit to engage with the question of whether there is an arguable ground of appeal.

The extension of time was opposed by Danske Bank, a notice party in the case and successor to the Northern Bank.

Danske was supported by the defendants in the case, the Garda Commissioner and the Criminal Assets Bureau.

Money laundering

Danske argued the extension of time application was the latest in a litany of delays by Mr Cunningham since a court order for the forfeiture of the money was made in 2014.

Mr Justice Birmingham said, with the benefit of legal representation, Mr Cunningham did not object to that forfeiture order or appeal it until of the eve of the High Court hearing more recently.

The appeal court was not persuaded the interests of justice would be served by the extension of time and “indeed, the contrary would be the case”, he said.

The February 2014 forfeiture order followed Mr Cunningham’s plea of guilty that year to two counts of money laundering when he was reckless as to whether two sums, of £100,400 and £175,360, were the proceeds of the robbery.

That case arose out of a retrial ordered by the Court of Criminal Appeal after it ruled that, in Mr Cunningham’s first 2009 trial on money laundering charges, an invalid warrant had been used to search his home.

He had pleaded not guilty at his first trial but was found guilty and sentenced to ten years in prison. The court heard he served five years in prison before being released on bail by the appeal court pending his retrial.

Following his plea of guilty in 2014, his sentence was backdated for the time he had already spent in prison which meant he didn’t have to serve any more time.

In 2018, he brought his High Court action after he claimed the State refused to provide him with an explanation about where the money taken from his home went.

The High Court found he was “demonstrably seeking to mount a collateral attack” on the 2014 forfeiture order.