The High Court has refused to make absolute a conditional garnishee order sought by Mark McGuinness over money expected to be due to his father, Aidan McGuinness, from a property sale. The court found that the named garnishee was not a legal entity and had never been indebted to the defendant. It also declined to make the order in its discretion, taking account of the notice party’s position as a claimed creditor whose costs had not yet been adjudicated.
Ms Justice Bolger delivered judgment on 8 December 2023. The application followed a conditional garnishee order made on 25 January 2021. The judge found that the plaintiff had established a judgment in his favour and that the expected sale proceeds could count as an accruing debt. But a separate essential requirement was not met: the plaintiff did not establish that the named garnishee owed money to his father.
The money arose under 2019 settlement terms providing for 25% of the net proceeds of a property sale to be paid to the defendant. The proceeds were held in the client account of a solicitor’s firm that had handled the sale but was not a party to the settlement. The firm’s principal said on affidavit that the firm was not indebted to the defendant and that the funds remained in its client account for the benefit of a co-owner’s estate. The plaintiff did not dispute that evidence and, through counsel, did not stand over his original sworn statement that the firm was indebted to the defendant.
The notice party, Adrian Greaney, a former solicitor to the defendant, said he was owed fees for work on earlier proceedings. The defendant disputed owing those costs because they had not been adjudicated. The judge noted that the defendant had offered to lodge €24,000 to meet the claim but had not taken steps to put that offer into effect before the hearing. She considered the notice party among the parties whose interests the court should take into account when exercising its discretion.
The judgment also records that the plaintiff accepted two prior costs orders against his father had to be deducted from the sale proceeds, leaving approximately €178,000 potentially available for distribution. That figure was not an award in these proceedings.
The judge’s decision refused to make the conditional order absolute. Her comments on costs were indicative only: she proposed no costs order between father and son, that the defendant pay the named garnishee’s full costs, and half the notice party’s costs. The matter was listed for mention on 19 December 2023 so the parties could make representations on costs and final orders. The judgment does not record the final costs order.