District Court determines second claimant is sole owner and orders delivery of car to them.

THE DISTRICT COURT DUBLIN METROPOLITAN DISTRICT

In the Matter of the Police Property Act 1897, the Criminal Justice Act 1951 and an Application for the Delivery of Property in the Possession of An Garda Síochána JOHN KING, PETER SINCLAIR CLAIMANTS

- AND - GARDA CATHAL MIDDLETON RESPONDENT Judgment delivered by Judge Brian O’Shea at Dublin District Court on the 27th day of March 2018

1. The respondent came into possession of a 1972 Porche 911 2.4 Turbo motor car pursuant to a warrant issued by a judge of the District Court. He does not wish to retain the car.

In reality, therefore, the dispute is as between the claimants. Both claimants argue that they own the car and both seek delivery of it. Clearly they cannot both be correct.

2. The governing legislation is unambiguous. Subsection 1(1) of the Police Property Act 1897 provides that “Where property has come into the possession of the police … a court of summary jurisdiction may … make an order for the delivery of the property to the person appearing to the … court to be owner thereof.” Section 25 of the Criminal Justice Act 1951 provides that such order may be made in the absence of any related charges.

3. The respondent gave testimony concerning the police investigation and the circumstances in which he came into possession of the vehicle.

4. Both claimants gave testimony relating to the separate contracts they entered into for the car and the sums they paid in pursuance of those contracts. Although the sums differed greatly they both explained why they had paid the amounts they did. It is not necessary to set out the testimony of the witnesses because the examination and cross-examination of each was designed to urge the court to adopt a view of the evidence that would result in the establishment of certain facts. Those facts are accepted by the court, and are as follows:

a) Both claimants were truthful and honest in the testimony they presented to the court.

b) Both claimants cooperated with the police investigations.

c) Both claimants honestly believe that they entered into valid contracts for the sale of the car and consequently have a right of ownership to the car.

d) Both claimants carried out reasonable inquiries, including online inquiries, in relation to the car before they purchased it.

e) Both claimants are at a loss arising from their respective purchases of the car.

f) Although both claimants paid significantly different sums for the car the court accepts that this divergence has been explained during the course of their evidence to such an extent as enables the court, as it was urged to do, to disregard the same as a consideration in reaching its determination.

5. Before reaching such determination, it is appropriate to express the opinion of the court regarding the issue of ownership. Registered ownership of a vehicle is a creature of statute. It may or may not coincide with actual ownership in the ordinary sense or, more correctly, ownership within the meaning of subsection 1(1) of the Police Property Act 1897. In the opinion of the court registered ownership in the context of this particular case is of value only in the sense that it shows an indication on the part of the claimants.

It was not argued, nor could it properly be argued, that registered ownership is determinative in terms of “the person appearing to the … court to be owner thereof”

within the meaning of the 1897 Act. Further, the Court adopts that which Widgery CJ opined in Lyons & Co Ltd v Metropolitan Police Commissioner [1975] 1 QB 321, namely that “owner” should be given its ordinary meaning as “a person who is entitled to the goods in question, a person whose goods they are, not simply the person who happens to have them in his hands at any given moment.”

6. The evidence of the first claimant establishes that towards the end of March 2017 or beginning of April 2017 he became aware that the property in issue was for sale. In May 2017 he travelled to Spain, viewed the car, drove it and entered into and fulfilled the terms of a contract for its sale. For reasons that will become obvious shortly, what he did thereafter was irrelevant.

7. The evidence of the second claimant establishes that he entered into a contract for the sale of the property in issue by paying a deposit for the car on 13 March 2017 and paying the remainder of the purchase price on 20 March 2017. For the reason already stated, the evidence relating to his registration of ownership thereafter is scarcely relevant.

8. It follows that the second claimant became the owner of the car on either 13 March 2017 or 20 March 2017 depending on the agreement, if any, between the parties regarding retention of title. The evidence is silent on the point but either way the contract was concluded by 20 March 2017.

9. It also follows that when the first claimant entered into a purported contract for the sale of the car its true owner at that stage was in fact, and in law, the second claimant. That purported contract could not therefore have been a valid contract.

10. In light of this finding the court is driven to the conclusion that the owner of the property in issue, pursuant to the only contract for sale that is a valid contract, is the second claimant.

11. Accordingly, the court refuses the order sought by the first claimant, grants the order sought by the second claimant and orders the delivery of the property by the respondent to the second claimant. For the avoidance of doubt, the Court uses the word “delivery” in the context of the 1897 Act rather than imposing any other obligation on the respondent or the State.

12. The Court has also considered the submissions made in relation to costs. On the first hearing date in this matter it became apparent that the respondent had not informed the first claimant of the existence of the person who ultimately became the second claimant in the proceedings. The first claimant was in a position to proceed with the hearing and ironically probably expected to succeed given that insofar as he was concerned there was no competing right of ownership. The hearing date had to be adjourned and a new hearing date set in order to allow the second claimant to become a party to the proceedings. It is not as if this can properly be put down to human error on the part of the respondent in circumstances where it had taken the case seriously enough to engage counsel. Under normal circumstances it would be appropriate that the first claimant should be entitled to costs as against the respondent for the unnecessary adjourned hearing date. However, costs can only be awarded where the District Court is vested with such power pursuant to statute. There is no such statutory power in this case.

Accordingly to do so would be to act ultra vires which would be reviewable by a higher court. In the circumstances, it was entirely inappropriate for an application for costs to be brought and resisted without either party indicating to the court that there was an absence of legal authority to make an order for costs. As to costs, therefore, the Court makes no order because it cannot.