The High Court has ordered the Criminal Assets Bureau (CAB) to disclose documents relating to its decision to seek a 2006 freezing order over land owned by Jackson Way Properties Limited. The order concerns one category of records and does not decide the company’s claims for damages or CAB’s objections to those claims.
Mr Justice Birmingham delivered the judgment on 22 January 2014. Jackson Way brought the discovery application in proceedings seeking damages connected with the freezing order. It asked for documents relating to CAB’s decision to apply for an order under section 16B(4) of the Proceeds of Crime Act 1996 in respect of lands in Folio 4940, County Dublin.
The source judgment says Jackson Way owned about 108 acres in the Carrickmines area. In July 2006, Finnegan P made an order restraining dealings with all the lands in the folio. CAB contends that the rezoning of a 17.635-acre parcel in 1998 was secured by corruption. The judgment records that CAB’s corrupt-enrichment proceedings opened in October 2010, but were put into abeyance after a Jackson Way director was arrested that evening, pending the criminal proceedings.
In November 2010, by consent, the freezing order was varied so that it applied only to the 17.635 acres that had been rezoned from agricultural to industrial use. The judgment says the director also gave undertakings concerning proceeds of a compulsory purchase award. CAB described the arrangement as a “security swap”.
Jackson Way’s damages proceedings, issued in March 2011, allege that CAB knew or should have known it had no basis to freeze the balance of the land, and wrongfully obtained and maintained the wider order. The company also claims that CAB failed to act compatibly with the State’s obligations under the European Convention on Human Rights. These are allegations set out in the company’s pleading, not findings made in this discovery judgment.
CAB opposed discovery, arguing that extensive disclosure had already occurred in the criminal proceedings, that most responsive documents would be privileged, and that producing them would be burdensome and distract the Bureau from its work. The judge said those objections might ultimately have substance, but the damages proceedings remained in being and Jackson Way was entitled to litigate them to a conclusion.
He found the requested category clearly relevant and access necessary to avoid disadvantaging the company. Possible privilege claims were not a reason to refuse discovery at this stage. He also considered the request limited to one category, likely involving relatively few documents, and declined to withhold discovery on burden grounds. He ordered discovery in the terms of the notice of motion. The judgment did not determine the underlying damages claims or whether any document is privileged.