Civil asset recovery
Parallel proceedingsIs there any restriction on civil proceedings progressing in parallel with, or in advance of, criminal proceedings concerning the same subject matter?
There is no legislative rule that civil proceedings must be suspended pending the outcome of criminal proceedings. The onus is on the party seeking a stay of the civil proceedings to establish grounds necessary to enable the relevant court to make such an order. The test to be applied by the court in deciding whether the civil action can proceed before the criminal proceedings is whether there may be a real risk that prejudice might be caused to the criminal proceedings. The court will have regard to the extent to which it may be possible, by measures to be adopted in the criminal process, to minimise or ameliorate any such prejudice as might arise.
ForumIn which court should proceedings be brought?
The appropriate court is dependent on the amount of the claim:
- up to €15,000: the District Court. The country is divided into 23 districts;
- between €15,001 and €75,000: the Circuit Court. The country is divided into eight circuits; and
- greater than €75,000: the High Court.
In addition, for disputes of a commercial nature between commercial bodies where the value of the claim is at least €1 million, an application can be made to have the matter entered in the Commercial List of the High Court, which involves a detailed case management system.
LimitationWhat are the time limits for starting civil court proceedings?
The Statute of Limitations Act 1957 (as amended) prescribes time periods within which different causes of action are to be taken in Ireland. If a particular cause of action is not commenced within the prescribed period as provided for in the Act, then it is said to be ‘statute barred’.
In the case of a simple debt or a claim in tort or contract, the limitation period is six years. However, in cases of fraud the limitation period is regarded as having commenced on the date the claimant discovered the fraud or could with reasonable diligence have discovered it.
JurisdictionIn what circumstances does the civil court have jurisdiction? How can a defendant challenge jurisdiction?
Irish courts generally recognise express choice of governing law in civil and commercial contracts between parties in EU member states under Regulation (EC) No. 593/2008 and the law applicable to contractual obligations.
In the case of non-EU member states, the courts will recognise a choice of law under common law rules subject to the following qualifications:
- courts can apply overriding mandatory provisions of Irish law; and
- the application of legal provisions may be refused if the application is manifestly incompatible with Irish public policy.
Irish courts will respect the choice of jurisdiction in a commercial contract in accordance with the provisions of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
Irish courts can also accept jurisdiction to determine a dispute where they accept jurisdiction is not exclusive or where both parties agree to Irish courts accepting jurisdiction.
Time frameWhat is the usual time frame for a claim to reach trial?
In the High Court, the usual time frame for an asset recovery claim to reach trial would be approximately two years from the date of issuance. However, where those proceedings are entered into the Commercial List (see question 2), the time frame can be significantly shorter, with the claim reaching trial approximately one year from the date of issuance.
Admissibility of evidenceWhat rules apply to the admissibility of evidence in civil proceedings?
The cardinal principle is that evidence is, in general, to be given orally. This is enshrined in the Rules of the Superior Courts, which also allow for a number of exceptions. This evidence is principally given by way of testimony in open court. However, in certain circumstances and actions, evidence is given by way of sworn written testimony on affidavit. In some limited situations, oral evidence can be taken on commission or before an examiner. Certain evidence can also be taken through the exchange of written interrogatories and replies.
In relation to documentary evidence, the ‘best evidence’ rule continues to apply in Ireland, namely that the original of a document should be produced. There are exceptions to the ‘best evidence’ rule, for example, copies of documents generally would suffice where the original is not capable of being produced (destroyed, lost or impossible to obtain).
WitnessesWhat powers are available to compel witnesses to give evidence?
The general position is that anyone who is competent can be compelled to give evidence in a criminal or civil case. One is considered to be a competent witness if one is capable of giving admissible evidence in a court. If a witness receives a subpoena to attend court to give evidence and fails to do so, that witness can be found to be in contempt of court.
Publicly available informationWhat sources of information about assets are publicly available?
Land registrationIt is possible to search the Property Registration Authority of Ireland (PRAI) website (www.landdirect.ie) to ascertain the ownership of property. There are two distinct forms of property registration: the Registry of Deeds and the Land Registry. The Land Registry is a more modern form of registration and the jurisdiction is moving towards that particular format for all counties. It is possible on the PRAI website to ascertain when property was transferred, from whom and to whom, and also to ascertain whether the property is charged in favour of any third party.
Vehicle registrationIn relation to vehicle registration, it is possible to request details of vehicle ownership from the national database. Similar databases are maintained in relation to aircraft and maritime vessels.
Company information and securities registrationIt is possible to obtain a considerable amount of information in relation to Irish corporate entities. There is an obligation on limited corporates to file annual financial statements, which will disclose their financial performance together with management and ownership, including shareholder details. In relation to shareholding, Ireland has recently enacted legislation to comply with its obligations under the Fourth Anti-Money Laundering Directive (EU 2015/849). There is now a Register of Beneficial Ownership of Companies and Industrial and Provident Societies (RBO). Companies must identify their Beneficial Owners, keep their details on their own internal register and register these details with the RBO. The information contained on the RBO is available to the public and may access the name, month and year of birth, country of residence, nationality and statement of the nature and extent of the interest held or control exercised by each beneficial owner.
In relation to publicly traded companies, there is a requirement to notify the Irish Stock Exchange when there is a change in the percentage of shares to above 3 per cent or more of the relevant share capital of a publicly traded company.
Cooperation with law enforcement agenciesCan information and evidence be obtained from law enforcement and regulatory agencies for use in civil proceedings?
The Freedom of Information Act 2014 asserts the right of members of the public to obtain access to official information to the greatest extent possible consistent with the public interest and the right to privacy of individuals. However, this does not extend to records concerning criminal case files.
Any person may make an application to the An Garda Síochána or to the Director of Public Prosecutions (DPP) for a copy of their personal data, as held by An Garda Síochána or the DPP. There is an exemption under section 5 of the Data Protection Act 1988 in respect of personal data kept for the purpose of prosecuting offenders where the disclosure of that data would be likely to prejudice such a prosecution. The exemption is finite and no longer applies after the prosecution process has concluded, allowing time for any appeals. There is also an exemption under the same section in respect of privileged material for which there is no such time limit. Only personal data in respect of the applicant can be provided, and all the personal data of other parties must be redacted unless such parties give their consent.
Third-party disclosureHow can information be obtained from third parties not suspected of wrongdoing?
Irish courts have granted Norwich Pharmacal orders on numerous occasions, requiring the respondent to provide information and documentation to the applicant.
In addition, where it appears to the court that any person or entity not a party to an action is likely to have or have had in their possession, custody or power any documents that are relevant to an issue arising or likely to arise, in the action, discovery of such documents may be directed by the court. The court must be satisfied that the documents are not available to the applicant from another source.
Interim reliefWhat interim relief is available pre-judgment to prevent the dissipation of assets by, and to obtain information from, those suspected of involvement in the fraud?
Interim relief can include injunctions: requiring a party to either take or cease a particular course of action. Mareva injunctions are also a feature of Irish proceedings, which freeze a defendant’s assets pending the hearing of the matter. Anton Piller orders are also available to claimants in Ireland. A European Account Preservation Order (EAPO) could also be sought.
If the proceedings relate to the disposal of land, it is possible to register a lis pendens over that land, which will directly impact on any proposed further disposal of the land while the proceedings are ongoing.
Non-compliance with court ordersHow do courts punish failure to comply with court orders?
Where a defendant fails or refuses to comply with the terms of a court order, that person may be committed to prison for contempt for an indefinite period until that person is willing to purge his or her contempt.
The courts may also make adverse costs orders or strike out pleadings for failure to comply with court directions.
Obtaining evidence from other jurisdictionsHow can information be obtained through courts in other jurisdictions to assist in the civil proceedings?
Ireland has not adopted the 1970 Hague Convention and, accordingly, if overseas witnesses are unwilling to cooperate, it would not be possible to compel them to do so by way of subpoena. However, an application can be made for letters rogatory (letters of request) to be issued to the courts of the appropriate jurisdiction, to seek their assistance in compelling the attendance of an individual to give testimony. In practice, the procedures are similar to those that would be applicable under the Hague Convention.
Alternatively, if the witness is located in an EU member state, then procedure (under Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the member states in the taking of evidence in civil or commercial matters) is available that allows the taking of evidence from one member state to another without recourse to consular and diplomatic channels.
Assisting courts in other jurisdictionsWhat assistance will the civil court give in connection with civil asset recovery proceedings in other jurisdictions?
As referenced in question 13, Ireland is not a signatory to the Hague Convention on the taking of evidence. The letters rogatory process is a formal request from the overseas court to the Irish court to compel witnesses to give oral evidence for use in overseas litigation, in addition to the production of documents relating to the witness testimony.
The relevant legislation governing requests for international judicial assistance by way of letters rogatory is the Foreign Tribunals Evidence Act 1856, and the procedural rules to be followed by applicants seeking the Irish courts to give effect to a letter of request are set out in Order No. 39 of the Irish Rules of the Superior Courts 1986 (as amended).
Causes of actionWhat are the main causes of action in civil asset recovery cases, and do they include proprietary claims?
Among the causes of action are the following:
- fraud or fraudulent misrepresentation;
- negligent misstatement;
- breach of fiduciary duty;
- breach of contract;
- fraudulent disposition; and
- conspiracy.
What remedies are available in a civil recovery action?
The main remedies available include the following:
- damages;
- restitution;
- rescission;
- specific performance;
- account of profits; and
- declaratory relief.
Can a victim obtain a judgment without the need for a full trial?
If a defendant does not enter an appearance, it is possible to obtain judgment in default of appearance. Similarly, if a defendant has entered an appearance but does not enter a defence, it is possible to obtain judgment in default of defence. Such an application for default judgment is on notice to the defendant.
Post-judgment reliefWhat post-judgment relief is available to successful claimants?
A freezing order can be sought from the court to prevent the dissipation of assets. Similarly, an EAPO can be sought.
The defendant can also be examined in court as to his or her means. Following such examination, the court can make an instalment order.
EnforcementWhat methods of enforcement are available?
If the defendant has property assets in the jurisdiction and the judgment is for a liquidated sum, it is possible to register a judgment mortgage against that property.
If the defendant is resident in Ireland or has property assets in Ireland, it is possible to have the judgment executed by the county sheriff in the county in which that defendant is resident or has property. This will involve the sheriff seizing goods or assets up to the value of the judgment.
It may also be possible to obtain a garnishee (attachment) order against monies due and owing to the defendant.
It will also be open to the claimant to petition to have the defendant placed into liquidation (corporate) or into bankruptcy (individual).
Where there are assets located in another EU jurisdiction, a European Enforcement Order can be sought.
Judgment creditors have twelve years from the date of judgment to effect enforcement of the judgment.
Funding and costsWhat funding arrangements are available to parties contemplating or involved in litigation and do the courts have any powers to manage the overall cost of that litigation?
A third party professional funding agreement to support a party in legal proceedings offends against the rules of maintenance and champerty, and is prohibited under Irish law. This position was upheld in May 2017 by the Supreme Court of Ireland.
After-the-event insurance, however, is gaining traction as a possible method for parties to litigation to mitigate the risk of the expense of an adverse costs order, should the party lose.
