The High Court has struck out proceedings in which Philip Marley sought advance rulings on land-registration law relevant to his pending criminal trial, finding that his claim for an advisory opinion was not legally capable of succeeding.
Mr Justice Rory Mulcahy said the statutory interpretation issues could be addressed by the Dublin Circuit Criminal Court in the context of the evidence at trial. The court did not decide the merits of the legal arguments or make findings on the allegations in the indictment.
The proceedings concerned three applications: two by the defendants seeking to strike out Mr Marley’s claim, and his application for judgment in default of defence. The judge struck out the proceedings under Order 19, Rule 28 of the Rules of the Superior Courts because the pleadings disclosed no reasonable cause of action. He did not need to decide the defendants’ alternative grounds for striking out the claim, or Mr Marley’s application for default judgment. The form of the order and costs remained to be addressed.
Mr Marley is awaiting trial on eight counts in an indictment containing 20 counts. The allegations concern transactions involving properties in Phibsborough and Ballsbridge. They include alleged offences relating to registration of deeds and land-register entries, as well as theft and money laundering allegations concerning payments made by ADT Limited. The judgment records that these remain allegations for the criminal court to determine.
The Phibsborough property was registered in the name of SLGI (Holdings) plc from November 2017 until the High Court set aside that registration in April 2019. In that earlier decision, the court expressly left open whether the order setting aside registration had retrospective effect.
In the civil proceedings, Mr Marley sought declarations about the legal effect of the registration and its later rectification, including whether ADT was entitled to rely on the register when it paid rent and money for the surrender of a lease. He argued that advance clarity was needed to prepare his defence and that the questions had wider significance for the State’s land-registration system.
The judge said the usual forum for legal issues arising in a criminal case is the trial court. While an advance challenge may sometimes be heard where the constitutionality of a provision underpinning a charge is disputed, Mr Marley was not challenging the constitutionality or lawfulness of the statutory provisions he wanted interpreted. The Circuit Criminal Court could determine those issues during the trial, the judge said, and could consider them against the factual evidence.
The judgment also noted that a prior application by Mr Marley to have four counts dismissed under section 4E of the Criminal Procedure Act 1967 had been heard and refused. His separate application to sever two counts from the others had also been refused, and an attempted appeal was dismissed because the High Court lacked jurisdiction to hear it.