Cab cleared to sue Jackson Way for €53m

The Supreme Court has cleared the way for the Criminal Assets Bureau (Cab) to sue Jackson Way Properties for €53 million over alleged “corrupt enrichment” as a result of the sale of lands at Carrickmines.

The 17 acres of lands are at the centre of a rezoning controversy and are subject of freezing orders granted to the bureau in 2005 pending the outcome of its action against JWP.

The three judge Supreme Court today unanimously rejected the claim by JWP, with registered offices in Birmingham, England, that the bureau is not entitled to bring the proceedings in this jurisdiction.

The court ruled it was "perfectly clear" the case involved "a public law remedy for a public purpose" in the interest of society and it was therefore not excluded by the Brussels Regulation (relating to jurisdiction) from being heard here.

Giving the court's judgment after the half day appeal hearing, Mr Justice Hugh Geoghegan, sitting with Mr Justice Nial Fennelly and Ms Justice Fidelma Macken, said the case effectively involved the State or society, through Cab, trying to prevent people allegedly guilty of corrupt behaviour "getting away with ill- gotten gains".

Cab was a public authority acting in the exercise of its public powers and pursuing a public remedy in the interests of society and the proceedings were not, as JWP argued, about restitution for any person or persons such as would allow JWP to avail of the Brussels Regulation. This was about "the exercise of the sovereign power of the State", the judge said.

Rejecting this and other arguments by JWP, the judge added the court regarded as "impeccable" the original High Court decision by Mr Justice Kevin Feeney dismissing JWP's case and would uphold all his findings which contained "no flaw whatsoever".

The court also awarded costs against JWP and refused an application by Martin Hayden SC, for the company, to leave over the costs issue pending the outcome of the full case. Mr Hayden said some €17 million of his client's property is tied up by freezing orders.

In its proceedings, the bureau claims a €53 million hike in the value of the Carrickmines lands after rezoning was a direct result of "corrupt conduct in procuring the rezoning decision" and amounted to "corrupt enrichment" of JWP within the meaning of that phrase in Section 16B of the Proceeds of Crime Act 1996.

When seeking freezing orders over the JWP lands in July 2005, the then Cab chief officer Felix McKenna said the 17 acres were rezoned from agricultural to industrial by 13 votes to 11 at a special council meeting of Dún Laoghaire Rathdown County Council on December 16th, 1997.

Chief Supt McKenna said Cab believed the rezoning decision was procured by corrupt payments to county councillors made by Frank Dunlop in furtherance of an agreement with James Kennedy whereby Mr Dunlop was to receive the commercial value of one rezoned acre of the Carrickmines lands if he successfully arranged the rezoning.

He said the beneficial owners of JWP are Mr Kennedy, a businessman/developer who has been involved in the running of an amusement arcade at Westmoreland Street, and a solicitor, John Caldwell.

According to Cab, the Carrickmines lands were amassed by James Kennedy and John Caldwell in the period up to 1989. A company called Paisley Park Investments Ltd was registered as full owners of the property in December 1992 and the land was transferred to the JWP company in 1993. The bureau claims Paisley Park Investments Ltd was owned substantially by John Caldwell and James Kennedy.

In separate High Court proceedings, JWP is seeking orders to enforce a €12.8 million award made to it by an arbitrator in November 2003 against Dún Laoghaire Rathdown County Council over the acquisition of the lands at Carrickmines for the M50 motorway. The council contends the award cannot be enforced because, it claims, JWP is unable to produce title to the lands and cannot prove the extent of title.