High Court of Ireland Decisions

31 March 2000


BUDD J:

Background history

The special summons in this unusually complicated and lengthy family law case was issued on 5 December 1995. The wife sought a decree of judicial separation and wide ranging orders in respect of maintenance, ancillary financial orders and property adjustment orders. There are no children of the marriage although the husband has a non-marital child. A complication in the case was that he was subject to an order of the Circuit Court (Judge Yvonne Murphy) for attachment and committal in respect of failure to pay maintenance for this child, while at the same time he was before the High Court on another motion to attach and commit for failure to make a full affidavit of discovery. Both parties are agreed that the making of an order in respect of the judicial separation would be appropriate. There has been an evolving strenuous contest in respect of the assets of the husband, either held in his own name or under various aliases which it is alleged he has used in order to conceal the extent of his property assets. There is also conflict as to the contribution which the wife made to the accumulation of this property portfolio and in respect of her contributions both financial and by her work done in respect of the foundation and building up of these assets. The wife's case is that the husband has deliberately set about concealing the extent of his property empire and the progress and length of this case is partly explained by the process as the case developed of the piecing together of a complex jigsaw of clues as to how many properties there are in which the husband actually has an interest. The relationship between him and the various names in which these properties are held has become of critical importance.

For an understanding of the matters which first came before me by way of a motion on 11 March 1999 I propose to set out a brief history of the parties and of the orders already made in the case before then. While most of the facts I give are common case, nevertheless since I have formed a very clear view as to the veracity of each of the parties I acknowledge that this synopsis of the history in the main accords with the version of events given by the wife in the rare instances of differing accounts about the background. They met in or about 1980 and became close friends within two years. On 10 April 1984 they were married in Co Dublin. She is a remedial teacher with an expertise in teaching children who have learning difficulties and who are emotionally disturbed. He taught engineering but his real interest and aptitude was for the building up of a significant portfolio of investment properties. He had a good eye for and interest in buying properties that could be done up, renovated and then let to tenants. In the seven years before 1991 a portfolio of properties was acquired and they were collecting rent from over one hundred tenants. He contests her role in this enterprise and a considerable length of time was taken up in cross-examination of her on his instructions to belittle her role in building up this property portfolio. Having listened carefully to the evidence produced I have no doubt that she played an active and vital role in this building up of property assets. She was involved in the advertising for and meeting with tenants and the collection of rent. She also helped with regard to fetching materials for workmen and the work that was constantly being done to extend and renovate properties and she helped with regard to the supervision of the payment for goods and workmen.

Unhappy differences arose between the parties in the late 1980s. The husband had the liaison with Ms McI, and she had the non-marital child already mentioned whose maintenance was the subject of orders in the Circuit Court. The husband and wife enjoyed a number of good holidays abroad and they ate out and had some social life together but more and more when she was not teaching both of their lives were given over to building up their properties. Their plan was to accumulate a substantial property portfolio so that they would be able to purchase a good country property and a property abroad in a sunny climate and their aim was to build up a sufficient portfolio so that they would be able to retire in their fifties. All the properties were bought in the name of the husband except for one property in G Avenue which was bought by the wife before marriage and later sold; the remains of the proceeds of this sale is the sum of about £40,000 which is the entire of the wife's residual savings. In early 1993 the husband left the family home but subsequently returned and in November and December 1994 they went on two holidays abroad together. However the wife discovered that he was carrying on a relationship with EF and in December 1995 he left the family home.

They had lived for a time at 28 M Road, which was a pleasant house with front and back gardens, and she believed that the plan when this was sold was to move to a large property on Raglan Road. The house that she lives in at Terenure was intended as an interim abode and in no way reflected the more gracious type of house which they occupied during their marital life.

In the course of a long telephone conversation in summer 1998 the husband told the wife that there were two women who were after his money, being the mother of the child and herself, and that neither would get his money as he had hidden his assets so well that neither of them would be able to find the assets or prove that he owned them. He had failed to pay the mortgage instalments on the house at Terenure in which she was living and she was in fear of being evicted. She was aware of her husband's habit of using false names in his business dealings so she set about ascertaining what he had done with the properties which they had jointly built up and where he had invested the monies which he received from the sale of such properties. Before I trace the progress of the wife's quest for the assets held now by her husband and the remarkable detective work done by herself and her present solicitor in this respect, I must trace the history of previous orders made in the case before the matter came before me. There are also three remarkable aspects of this case which affected my view as to the veracity of the parties and because of their significance I propose to mention them briefly at the outset.

When this case first came before me I was appalled to learn that over £150,000 had already been expended on costs in respect of preparatory matters. During the large numbers of hearings of motions the wife had attended court carrying a shoulder bag, which she referred to as her "legal bag"; this contained her papers most relevant to the case. She was away for three days in April 1999 after her mother's death and when she returned to the house in Terenure this bag had been removed from the place where she had concealed it in her room. Nothing else was taken from the house. In the course of a dispute in respect of admissibility of evidence with regard to telephone message interception perpetrated by the wife on the husband's mobile phone, Senior Counsel for the husband put telephone accounts to the wife under cross-examination. These accounts the wife alleged had been in her stolen legal bag. This line of cross-examination was abandoned on behalf of the husband.

Secondly, in the course of cross-examination of the wife on 9 February 2000 a note dated 21 February 1993 was put to the wife. In her handwritten note she sought a banker's draft from her husband for £6,928.72 in respect of items which she had purchased between 1 August 1991 and 30 September 1991 and a few items to October 12. At the bottom of her note was written in her husband's handwriting a replying note dated 24 February 1993 "draft for £6,928.72 as requested. A receipt will not be necessary thanks J". The wife denied that she had ever received such a bank draft. A weekend intervened and she returned to court with the actual note which she said she had left on the table at Terenure and which had no reply from her husband on the bottom and had an envelope attached to it in his handwriting "cost of work carried out at 74 G Ave between 10/11/89-16/2/90 £3,988 plus interest". Her list of items making up the expenditure by her amounting to £6,928.72 significantly had on the back of them phone messages taken down in her husband's handwriting, being notes about telephone calls made to him by tradesmen or contractors in respect of work which he wanted done. These telephone notes had a further significance in confirming the wife's account that her husband would advertise for tradesmen in the papers and that he or she would make a note of the telephone calls received and this was their mode of contacting workmen for the refurbishment jobs. She explained that the note put to her the previous week in cross-examination had been only her draft of the note that she actually left and differed from it in a number of obvious respects, such as additions and underlining. Furthermore she said the draft had been one of the documents which was stolen from her in her legal bag. Since her husband was intent on showing that her contribution to the building up of the property portfolio was minimal one would have expected that this note about the banker's draft would have been included in his affidavit of discovery as showing that he had repaid her for her outgoings. I accept the wife's evidence. I am coerced to the conclusion that the note dated 24 February 1993 was an addition by the husband and was a later forgery perpetrated with the express intention of deceiving the court.

The third remarkable feature of this case is the episode in the aftermath after concluding submissions were made to the court on Thursday 24 February 2000 after which I reserved judgment. On Monday 28 February 2000 Counsel for the wife applied for liberty to serve short notice on the husband of an application to re-enter the matter for the purpose of calling bank officials from the Trustee Savings Bank and to recall the husband's solicitor in the light of important fresh information which had come to the notice of the wife's solicitor. On Wednesday 1 March 2000 the matter was re-entered and three witnesses were called. The husband in this case had steadfastly maintained that he had no assets other than those which he had disclosed on affidavit and in evidence. When the two bank officials were called, they revealed that, in the belief of the bank officials, the husband had operated a number of bank accounts in the TSB. This was in defiance of an order of the High Court in the nature of a mareva injunction freezing the husband's assets made by Lavan J on 21 March 1997. A number of the transactions were very substantial and included a draft in the sum of £30,520 payable to J OD, which was presented on 12 March 1997 through Irish Nationwide (IOM) Ltd. The husband had denied having any overseas assets and he had made no mention of accounts or transactions in the Isle of Man. Evidence was also given that a foreign exchange money transfer dated 19 August 1997 was made in the sum of £216,916.17 with the ordering customer being J GD and the account to which it was sent being that of a firm of solicitors whose bank was AIB at Illsford in Essex. This was further conclusive evidence that the plaintiff had defied the Court Order and was involved in moving substantial sums of money abroad. The husband declined to explain these matters in evidence.

When this matter first came before me on 11 March 1999 Counsel for the wife urged on me that no audience should be given to the husband's legal representatives until he had purged his contempt. An order for discovery by consent had been made as long before as 13 March 1996 but in the meantime, while some affidavits had been filed, these were inadequate to satisfy either the plaintiff's legal representatives or the court. Eventually by order of the High Court (Lavan J) on 21 March 1997 an order for the Respondent husband to be attached was made on the ground that he was in default and that he had not complied with the order that he make discovery of documents in his possession or power. An Order pursuant to Section 29(2) of the 1989 Act was made that the husband be restrained until after the final determination of the proceedings from dealing in, transferring out of the jurisdiction or otherwise disposing of any of his assets, bank accounts or other property be the same real or personal. The mareva injunction freezing the assets remained in place but on 9 May 1997 Morris J vacated so much of the order made on 21 March 1997 as attached the Respondent. The case was then listed seven times for hearing but was adjourned because of the failure of the husband to make further and better discovery. On 18 July 1997 Lavan J made an order in respect of further and better discovery and for a schedule of documents to be produced. On 27 November 1997 O'Higgins J gave the husband fourteen days to complete his discovery. The case was listed for 16 March 1998 but was again adjourned as on 3 March 1998 O'Sullivan J made an order in respect of Bankers Books and on 6 March 1998 made a further order in respect of Bankers Books and further and better discovery. These were sought but not revealed for inspection and difficulty was encountered by the wife's then solicitor in serving a motion to attach. The case was listed for hearing on 4 November 1998 but on 5 November 1998 the husband's solicitor Mr Bergin was allowed to come off record. A warrant to attach the Respondent remained outstanding from 5 November 1998 as the Gardai had difficulty in locating J O'D. On 6 November 1998 McGuinness J struck out the defence/replying affidavit of the Respondent for failure to comply with orders for discovery and she also ordered that the Respondent be attached when he had not complied with a Court Order which ordered that he give to the Applicant the documents and names and addresses laid out in the order made on 6 March 1998. She also gave liberty to the Applicant to issue an order of attachment against the Respondent to have him brought before the court on 11 November 1998 to answer for the contempt alleged. On the 20 November 1998 she fixed 9 March 1999 for the hearing. On 28 January 1999 McGuinness J made an order restraining the Respondent disposing of, dealing with or otherwise dissipating any of his properties, monies or assets on a world-wide basis until 5 February 1999. On the 5 February 1999 McGuinness J repeated the freezing order until after the trial of the action. On 9 March 1999 McGuinness J varied her previous order by substituting:-

"iv, that in order to purge his contempt of this court J OD, must pay the sum of £60,000 to Breslin & Co Solicitors for the Applicant on account of the general costs associated with and incurred or to be incurred by the Applicant in the course of the above entitled proceedings and unless the Respondent has so purged his contempt of this court he cannot appear and run his case irrespective of whether he is represented or not by O'Connor and Bergin Solicitors".

When the matter came before me on the 11 March, 1999 his Counsel requested liberty to speak to the minute of the previous orders. The warrant to attach had been outstanding since 5 November 1998 and the Respondent was in blatant contempt of court in respect of his failure to comply with the orders for discovery and in respect of the furnishing of a complete list of his assets; accordingly he was taken into custody over lunchtime. I was informed that the Applicant's solicitor had thirty-four witnesses in readiness for the hearing with many of them on subpoena. While the Applicant's Counsel complained that the Respondent had not made proper discovery and had not produced the required list of assets and had failed to pay the stipulated £60,000 over in respect of the costs already incurred, nevertheless both sides indicated an eagerness to proceed with the matter and the Respondent offered to provide £20,000 towards the costs already incurred by his wife. A certificate in respect of illness produced on behalf of the Respondent had been strongly challenged, however I took the charitable view that he might have been afflicted by an "ostrich complex" and have his head in the sands rather than trying to comply with the orders in respect of discovery and production of documents. Furthermore, he was now represented by Counsel Ms Clissman and Mr Corrigan and experienced family law solicitors, O'Connor and Bergin, and I decided that justice would best be served by allowing them to put their representations on his behalf and by trying to push this case to a state of readiness for hearing. I had been appalled when I heard that £150,000 or more had already been expended in costs in the preparatory stages of this case and accordingly resolved that one Judge should take firm seisin of this case and try to push it to a conclusion without further delay. My hopeful intention proved difficult in accomplishment.

Counsel for the Respondent said that he had sworn affidavits of discovery on 23 April 1997, 5 September 1997 and 15 December 1997 and also had furnished a schedule of his tenants. The Respondent gave his undertaking to be present in court at 11am on Wednesday 10 March 1999 and his further undertaking to work with his solicitor to have a full composite affidavit ready covering all matters that he had been previously ordered to discover.

On Wednesday 10 March 1999 the Respondent duly appeared and sought to be represented and in effect the court proceeded to allow him to be represented by Counsel on the instructions of Mr Bergin although the further £40,000 was still outstanding. As a matter of courtesy to the learned Circuit Court Judge, also required the attendance of the Respondent before her on a motion to attach and commit, I requested Sergeant McKeogh to inform her of these proceedings and the need for the Respondent to be present in this court for the moment.

The Respondent produced a schedule of his assets and maintained that he only had three properties now, namely 57 G Square, 16 Terenure and 10 R Road. He said that he had sold 51 O Road in 1996, 86 R Road in 1996, 66 B Road in 1995 and 4 B Terrace in 1995. He maintained that he lodged the proceeds in respect of each of the sales in the Ulster Bank in Tallaght. In evidence J OD, said that he had collected rents in the sums of £1,200, £950 and £800 and that he also collected rent on behalf of some landlords namely Seamus Maguire and Doctor Cogan. He kept to his undertaking to turn up at 2.15pm on Wednesday 10 March 1999 and was called to give evidence about his disclosure of his assets by his Counsel. He stated succinctly that all his properties have been fully disclosed and that he had no other assets which were undisclosed. He produced a letter from McGrath and Company dated 9 March 1999 which indicated that he had an income in respect of rents from 10 R Road of £17,850 and from 57 O Square of £4,125. He had already indicated that he had earnings from collecting rents for Mr Maguire and Dr Cogan of £800 between 1 April 1995 and 1 April 1996, £950 between 1 April 1996 and 1 April 1997 and £1,200 from 1 April 1997 and 1 April 1998. He said that he had no other income from the collection of rents. The Respondent had been called by his Counsel to deal with the challenge to his veracity and to refute the suggestion that the discovery of documents made was inadequate. Leave was given to cross-examine the Respondent in the expressed hope that this would expedite the preparatory work in respect of bringing this case to trial. In the course of his cross-examination a number of matters were mentioned and incidents occurred. There was also the interposition of a number of witnesses who had been brought on subpoena. This needs to be mentioned as these occurrences and some of the testimony given had a significance which came to light at a later stage of the case.

In the course of his evidence the Respondent explained that he looked after a number of properties for Mr Maguire and collected rents from the tenants, the Respondent dealt with the repairs and renovations necessary and either left in the rent or sent it on to Mr Maguire's office. Some two or three years ago the Respondent had looked after the doing of repair work in one house for Mr Maguire and had engaged a roofer from Finglas called John Doyle and had paid him maybe £2,000 in cash taken from the rents. He had also engaged a plasterer called Michael through an advertisement in the "Evening Herald" and he did work on walls of bedrooms. The Respondent said that this was the way he did his own refurbishment work over twenty years and so he never got to know the address of anybody. It was not customary to obtain receipts for this type of work.

Mr Maguire was interposed as a witness and confirmed that his children owned two properties which the Respondent managed for him. He also handed in a list of properties which he had dealt with on behalf of the Respondent. He went through this list of properties that he had dealt with on behalf of the Respondent. He referred to 51 O Road as having been purchased in J O'D's own name and that among the papers in respect of this business premises with a shop and offices over it there was a letting agreement between Multi-line Enterprises Ltd and a tenant. In respect of 68 L Road this had been purchased in the name of J O'D using an Irish version of his name, and his wife. Mr Maguire said that this was the only time that he had come across the Respondent using the Irish version of his name and was the only instance where he had known him not to use the name J O'D. Among the papers he had was a deed of 15 August 1996 by which the wife transferred her share in 68 L road to J GD, for a consideration of £23,000 purportedly paid by J GD, to his wife. J O'D had subsequently sold the property by contract dated 31 December 1996. In the course of Mr Maguire's evidence about other properties, 16 The 1, 57 G Square and 20 M Road, there was an interruption. Counsel for the Applicant alleged that the Respondent had gone out of court and gone around the consultation rooms in which witnesses present under subpoena were waiting. No evidence was called supportive of this complaint suggesting intimidation by the Respondent and the case proceededwith the further cross-examination of Mr Maguire. While I noted the complaint I took the charitable view that the Respondent was merely moved by innocent curiosity. Mr Maguire listed thirteen properties that he had dealt with for the Respondent and added that he had acted in no other purchase or sale for the Respondent and had not dealt with any property for him since the freezing order. Under cross-examination Mr Maguire explained that his arrangements with the Respondent were rather informal and the Respondent did a patch up job on the properties for him and dealt with the collection of rents and that he had been a client of his office since about 1989.

On Tuesday 16 March 1999 I made an order that the Respondent was to swear a supplemental affidavit of discovery by 26 March 1999 and to allow inspection of documents. The Respondent did not acknowledge that any matters were outstanding in respect of discovery but a composite affidavit was to be put in to deal with aspects which had been criticised. Counsel for the Applicant complained that only £20,000 of the sum ordered had been paid and that the Respondent was still in contempt of Court Orders. Having ordered that the supplemental affidavit was to be in by 26 March 1999 I put the matter in for hearing on 14 June 1999 with the proviso that I would hear further submissions with regard to the question of representation on that date.

On Thursday 20 May 1999 I ordered that a transcript at public expense should be taken in this case. I felt this was necessary in view of the vehemence with which the case was being fought and the likely complexity of the property issues. On 11 June 1999 the Applicant's solicitor sought an adjournment from 14 June 1999 on the basis that he had just briefed a new senior counsel and that there were 54 pages of transcript to study. The matter came before me briefly in the interim but on 15 June 1999 I put the case in for hearing on 27 July 1999 and dealt with maintenance payments. I was told that the matter of arrears of maintenance payments in respect of the Respondent's non-marital child had been before the Circuit Court and that the Respondent owed a sum of £11,050 together with costs of £4,244 in this respect and that the matter had been adjourned before the Circuit Court to 22 June 1999. In the course of the application in respect of this maintenance the Respondent was called to give evidence and again reiterated that he had no other assets other than those which he had disclosed to the court and stressed that he only had three properties, namely 10 R Road, 57 G Square and the house at The 1. I made an order releasing funds for the payment of maintenance for the child and for the payment of £40,000 to the Respondent's solicitor on the basis that a sum of £20,000 had been paid to the Applicant's solicitor in respect of the fees ordered by the High Court previously.

The matter came back before me for hearing on 27 July 1999. At this stage Colm Mac Eochaidh was joined in representing the Applicant by Ian Finlay SC. The situation was reviewed and it became clear that certain procedural aspects and issues with regard to the financial positions of the parties, maintenance for the Applicant and an appropriate division of the assets were issues outstanding. Although there had been only partial compliance with the order made by McGuinness J on 9 March 1999 in respect of the payment of the sum of £60,000, nevertheless I felt justice required that I should allow the case to proceed with the Respondent being represented by an experienced solicitor and Counsel, namely Mr Bergin and Ms Clissman and Mr Corrigan.

A number of witnesses were called on behalf of the Applicant. First Nicola Martin who worked forHollybrook Ltd, Interior Design Contractors. She said that the company had rented a garage premises at the rear of 57 G Square at a monthly rent of £117 payable on a three monthly basis. The payment of rent by Hollybrook Ltd had started in 1992 and the most recent cheque was on 23 April 1999. She recognised J O'D and said that he would ring her and she would leave the cheque made out on her desk and he would call to her office to collect the cheque which was usually for £351. The cheques were made out to Multiline Enterprises. She had come to court previously in March 1999 and had afterwards received a phone call from Mr GD, who said that he wanted the cheque in future to be made out to "A O'Connor". This was the first cheque after she had been to court and J O'D did not collect it himself but a lady came in to collect it for him. The witness thought that the garage belonged to J O'D. Prior to April 1999 J O'D always collected the rent himself She said that their ledger card had the name Multiline Enterprises, 68 L Road, and the mobile telephone number and the name J O'D.

Mary Harmon of 36 E Street was called and said that she had lived there for 59 years. 38 E Street is next door and in 1994 her neighbour Mr Elliot there had gone to live with his daughter. Somebody came in and built an extension at the back of No 38. She spoke to a man called "J" whom she identified as J O'D. She did not realise that it was going to be a two-storey extension which would block the light so that she now has no sun in her back garden from 3pm J O'D said that he had planning permission for this and that there was nothing she could do about it. The property was then let. She understood that the name of the Applicant for planning permission was John Dean. J O'D was there in April, May and June 1994 and came a few times after the extension was built. She spoke to him about one or two problems which she asked him to fix up but he never did. She saw him again before the house was sold and asked him if he was selling and he said that he hoped so. She asked him would he finish a job which was not finished with regard to the plinth to the railings which were falling because of his inadequate foundations. He never did repair this before he sold. An architect Pat O'Brien had come to see her in response to her request to J O'D. However she did not get much information from him either.

Robert Fogarty said that he had a letting of a storage unit garage at the rear of 86 R Road since 1984. He paid the rent fortnightly and his mother did the actual payment of the rent to J O'D who was the landlord. He had been paying £40 per week in cash each fortnight up to September 1998 and J O'D called to collect the rent from his mother. About eighteen months ago J O'D had told him that he was going to sell; his asking price was too high at that time in 1998 being about £50,000 but Mr Fogarty told him to come back to him and this was the last he heard of that. Mrs Nora Fogarty, the mother of the last witness said that J O'D used to come to her house to collect the rent for the garage for some fifteen or sixteen years. He filled in her rent book which she had with her. The last entry made by J O'D was on 5 September 1998 and in her rent book she had J O'D's mobile phone number 087-629590. She said that J O'D collected the rent and occasionally his wife collected for him and she pointed out an entry for 21 and 28 September 1990 when £70 was paid to the Applicant.

Bernadette Murphy met J O'D in respect of her proposed purchase at 10 R Road in 1996. A contract went out in the sum of £52,500 and she had paid a deposit of £3,000. She regarded J O'D as the vendor. The contract was in the name of Stratfield Ltd as vendor having its registered offices at 10 R Road. J GD had later said to her that he could not complete this sale as he had been served with a High Court Order freezing his assets. She asked were the company's assets also frozen as she could not understand why the freezing of the company's assets could affect him. She had got her deposit back. The contract had been made in late summer 1996 and she wanted to know why there had been a delay in closing. She gave firm evidence that J O'D told her that the sale could not proceed as his assets were frozen. She did not see the correlation between the properties being owned by a company and there being a block on this sale from the freezing of J O'D's assets.

Dr Noel Cogan was then interposed as a witness at the request of Counsel for the Respondent. He said that he owned two properties in Dublin, one at R Road and the other at O Terrace. He had met J O'D about 1993 when he had come to him as a patient suffering from stress. He had referred him to a psychiatrist Dr Leavy in Mullingar in 1995. His understanding was that the Respondent had taken early retirement from his engineering teaching work. The doctor's properties had become run down and he asked the Respondent to renovate the premises and to collect rents on his behalf from the dozen or so tenants. The Respondent looked after the maintenance of the properties for him and deducted the cost thereof from the rents.

About two years ago on the Respondent's recommendation Dr Cogan had engaged Patrick O'Brien as his architect. He paid Patrick O'Brien some fees but had only spoken to him on the phone. He had given the Respondent a lodgement book in order that he might make lodgements to his account and he found that the Respondent was both efficient and honest. He was happy to trust him and found him much better than his previous agent and his deductions for himself were minimal. He was delighted with the way the Respondent had done the work for him. While he had attended on him and prescribed medication for him and had referred him to both a psychiatrist and to a physician, Dr Kelly, he had never charged him as a patient.

Lorraine Brennan was a tenant in one of the offices in 51 O Road from June 1994 to March 1997. J O'D was the landlord and she paid the rent monthly; the first payment was in cash and the rest were by cheque made out to J O'D. He always collected the rent. She had got to know the other tenants in 51 and did not recall any Brendan Maloney or Michael Larkin in 51 O Road. She named the other tenants and refuted the suggestion that they were sub-tenants to Maloney and Larkin. She was adamant that in the four years that she was a tenant there as a media agent there was no Mr Maloney and no Mr Larkin on the scene. There were court proceedings pending in relation to No 51 as a crack appeared about 10 March 1997 and the tenants were suing the builders next door. She had never heard of Maloney and Larkin until the previous day and these names had never arisen in discussions between her and J O'D to whom she and the other tenants paid their rent.

Elaine O'Gara said that she was a primary school teacher and lived as a tenant at 60 B Square from 1 February 1999 paying £250 per month and sharing the house with three other tenants. EF was the landlord and they paid her £1,000 per month into her bank account and her mobile phone number was 087-232 2430. Their gardener at 60 B Square was J O'D who mowed the grass.

Jim Faughnan who works in the fraud and security part of Eircell then gave evidence, also under subpoena. He had been asked to bring documents with him in respect of three mobile phone numbers:

(1) 088-590231

(2) 087-629590

and

(1) 087-2322430.

The first number was switched on on 4 December 1991 and switched off on 25 October 1995 and the applicant had been J O'D of 68 L Road. The second number was switched on on 7 December 1995 and on the 19 October 1995 there had been an application for an 088 analogue number with 629590, the applicant was John Daly of 10 R Road. Subsequently on 7 December 1995 the computer records showed that there was a switch on for 087-629590 and this remained live to 27 September 1997. In 1997/8 these numbers became seven digit numbers with a 2 inserted ie 2629590. The third number became live on 9 December 1996 in the name of EMF (the same surname as EF), 26 V Street and this number 087-2322430 was still live. He stated that the main providers in Ireland are Eircell and Esat and that there was an agreement between Eircell and Esat to ensure that no two people could have the same number except for the prefix.

While quite a number of witnesses under subpoena had come to court, several who had been on standby on a number of occasions in the previous year had not arrived and so the matter was adjourned to the Michaelmas term. Difficulties then arose because the Applicant's solicitor had ceased to practise. On 19 November 1999 the Applicant's new solicitor Kenny Stephenson and Chapman had come on record and sought an adjournment to 23 November 1999 on the basis that they wished to make further enquiries as to assets of the Respondent which were alleged to be outside the jurisdiction. The Applicant was only informed in October of the difficulty with regard to her then solicitor and in view of the fact that in July 1999 undisputed evidence had been given with regard to properties and rents which had not been disclosed by the Respondent either on affidavit or in evidence in March 1999, it seemed to me that the case should be put back to 18 January 2000 so as to enable the Applicant's new solicitor to read the transcripts and the volume of papers and to prepare such further proofs as he was advised.

On 20 December 1999 Counsel of behalf of the Applicant applied under Order 39 Rule 5 for evidence to be taken on foot of a letter of request by the High Court in London from named witnesses outside this jurisdiction. This type of order can be availed of where a prospective witness is outside the jurisdiction and where it would not be appropriate for evidence to be taken on commission. For example, where a witness would be reluctant to give evidence or would refuse to give evidence on the grounds of problems with regard to breach of confidentiality then resort may be appropriate to an order under Order 39 Rule 5 in respect of evidence to be taken abroad. This order should be read in conjunction with the forms for an order to issue for request for examination, and the undertaking in connection with letter of request and request for examination in appendix D of the Superior Court Rules at no 1, no 2 and no 3. Before the affidavit of the Applicant sworn on 8 December 1999 and filed on 9 December 1999 was opened to the court, Counsel on behalf of the Respondent made the point that this affidavit and the affidavit of the Applicant's solicitor which had also been sworn on 8 December 1999 where both so full of information that was prejudicial to the Respondent that the court would not be able to put this information out of mind and that this was very relevant in the context that the Respondent's Counsel intended to challenge the admissibility of the nature of the material alleged in the affidavit as being inadmissible on the grounds that much of the material stemmed from four illegally intercepted telephone messages which had been construed by the Applicant and her solicitor as suggesting that the Respondent had an involvement with banks and property in London and elsewhere abroad. Counsel for the Applicant countered that this argument with regard to inadmissibility was not relevant to the making of the order for the request for the taking of evidence since Counsel for the Respondent could make these points about admissibility at a later stage. I ruled that this application should be heard before the Judge who was familiar with the background and facts of the case and the matters in conflict and that this Judge was the appropriate person to hear such an application and to evaluate the need for such an order for the taking of evidence abroad. The point was also made that either the Respondent did have bank accounts in the United Kingdom or he did not and if this application to the court turned out to be a wild goose chase this would redound upon the Applicant. Liberty was given to the Respondent to put in a replying affidavit by Friday 7 January 2000 and the hearing of the motion was put in for Tuesday 18 January 2000.

On 18 January 2000 Counsel instructed by Eoin O'Brien, Solicitor, appeared for Mr Maguire and explained that Mr Maguire had been requested by the Applicant's solicitor to furnish information in respect of twenty-one further properties. He had furnished information with regard to the properties in the name of his client J GD, but sought the direction of the court with regard to his duty of confidentiality in respect of other ostensible clients. I ruled that Mr Maguire in the circumstances of this case should be furnished with a list of relevant names and should then prepare a list of properties known to him to be in the ownership of those on the list of relevant names furnished to him for the purpose of giving evidence about this to the court.

Counsel for the Applicant then renewed his application for the taking of evidence abroad. He acknowledged that this application came late in the proceedings but explained this in the context of the change of solicitor and of matters coming to notice as the proceedings evolved. He explained that the application should not delay the hearing and that following an order of the Irish High Court made under Order 31 Rule 5(1) the Court Order would be transmitted to the Department of Foreign Affairs with a request to transfer this to the Irish Embassy in London and thence to the Foreign and Commonwealth Office from where it would be transmitted to the Lord Chancellor's Department which in turn would instruct the Treasury Solicitor to make application to the Master of the Queen's Bench for the appropriate order. He explained that there was a reciprocal arrangement in place and that if the Master was satisfied in respect of the proofs, he would then make an order and the matter would proceed as it would by way of evidence on commission. Both sides would be represented before the court. Since the Respondent had sworn affidavits saying that he had no funds outside the jurisdiction and the intercepted telephone messages indicated to the contrary, it was essential to obtain the evidence of bank officials and other witnesses in connection with property in England as this was a remaining part of the jigsaw which the Applicant's representatives were trying to put in place in respect of the Respondent's assets.

Counsel on behalf of the Respondent strenuously opposed the hearing of this application on the grounds that it was brought too late and was tainted by illegality and by unconstitutional behaviour in respect of the invasion of the Respondent's privacy by the illegal interception of his telephone messages. I reiterated that the application should be dealt with expeditiously and should be made before the Judge who had knowledge of the background and the evolution of the case. The affidavits of the Applicant and her solicitor indicated that she had listened to her husband's voicemail and had intercepted messages left for him by chartered surveyors in London and also a bank official of the AIB, North Finchley Branch about a transfer and also about an unpaid cheque. There was also a message about a Valuer's report on "Tutis Court" which "Alan Salis" said he would send on to the Bank of Ireland people. He also said that the Valuers had been trying to contact the Respondent and "the figure is 825, not 865, that you paid for it". A further message from Mr Salis was a jumbled message with the words:- "now with the underwriters. BOI Trust people." In his replying affidavit sworn on 7 January 2000 the Respondent said that he had been advised not to comment on the contents of the said messages as the method of extracting the mobile messages was part of an ongoing Garda investigation. On the Respondent's instructions Counsel vigorously opposed the admissibility of the intercepted telephone messages I propose to list the authorities cited as this particular aspect of the case may be resurrected at a later date. These matters took some considerable time in argument but I propose only to list the relevant authorities for future reference as this argument was partially resolved by a later concession by the Respondent. While criticism was maintained with regard to the interception of the telephone messages nevertheless the Respondent then opted to give his explanation with regard to the telephone messages as part of the hearing with regard to the application under Order 39 Rule 5. The authorities referred to by Counsel for the Respondent were Kennedy v Ireland, [1987] IR 587, Kelly 3rd Edition at page 767, the Postal and Telecommunications Acts, 1983 and 1999, and OC v TC Unreported, High Court judgment, McMahon J delivered on the 9 December, 1981, and the case of Leonard v Scofield 4 Irish Jurist Reports 1938 at page 31 in respect of the taking of evidence abroad. Counsel for the Respondent relied on Section 98 of the Postal and Telecommunications Services Act, 1983. However she herself pointed out that this Act was amended by the Postal and Telecommunications (Amendment) Act, 1999, Section 7 which extended protection to companies known as licensed operators and this Act came into effect on 9 April 1999. Since the company which was given protection in the 1983 Act was Eircell the statutory protection did not extend to messages received on an Esat telephone back in 1998. She argued that this did not detract from the violation of the right to privacy under the Constitution.

In the course of submissions on behalf of the Respondent on this motion, reference was made to the Applicant's telephone accounts for 1998 and 1999 indicating the provenance of the telephone interceptions. Counsel for the Applicant countered that the telephone accounts had been in the Applicant's "legal bag" which had been stolen from the family home and that this was not a simple interference with a telecommunication but was a violation of the constitutional protection of the home.

Various suggestions were made as to how the evidence of bank officials and chartered surveyors in London could be procured for the court without unnecessary expense and with expedition but no proposition gained favour with both parties and accordingly the Respondent was called to give his explanation of the telephone messages. I should explain that a number of witnesses had been interposed in the meantime; for the sake of clarity and continuity I propose to set out the testimony given by the Respondent.

The Respondent was called by his Counsel to give evidence on the motion in respect of the request for the taking of evidence before a court in England. There is a transcript of this evidence which may have relevance to future applications since in this type of matrimonial proceedings the law seems to preclude "a clean break for ever" solution. In the course of his evidence the Respondent gave his explanation for the telephone calls but he precluded the court from completing the inquiry into this aspect by refusing at a later stage to return to the witness box for further cross-examination. I propose to advert to certain aspects of the Respondent's evidence as giving indicators as to his credibility but this is with the proviso that he prevented the continuation of cross-examination of himself on his story and thus precluded this method of further inquiry with regard to his alleged overseas assets.

The Respondent began his evidence on this motion by saying that he did have a mobile phone number 086-2629590. This was the number at which the Applicant said that she had intercepted the voice-mail and had taken down a number of messages one of them being from a firm of Chartered Surveyors, Allsop and Company, about a property at Montague Street and another from AIB North Finchley about a transfer. On 4 December 1998 she had intercepted a phone message from Deirdre from AIB at the same number with a request to phone her in regard to the unpaid cheque. She also intercepted two messages from Alan Salis, the first being about a Valuer's report on "Tutis Court" which he was sending on to the Bank of Ireland people and saying that the Valuer had been trying to contact the Respondent and that the figure is 825 not 865 that you paid for it. On 29 December 1999 she intercepted a further message from Mr Salis and heard the words . . . now with the underwriters. BOI Trust people". The Applicant construed these messages as indicating that the Respondent had a relationship with AIB and/or Bank of Ireland and/or Bank of Ireland Trust in London and had interests in residential or other property in London and possibly elsewhere of which no mention had been made in his affidavits of discovery.

The Respondent then proceeded to give a lengthy explanation of how in November 1998 his solicitor, Mr Bergin, had applied to come off record because of the lack of payment of fees. The Respondent had gone to Dr Cogan who prescribed a sedative for him and suggested that he should go away for a holiday. Accordingly he went to County Clare and then went to England where he met a number of friends and acquaintances. He was lent the sum of £1,000 by a friend John Daly and was promised some money by Sean Deane with whom he had done some work. He said he had known Daly and Deane going back some twenty years. They were into building work and Daly was a bricklayer and Deane a carpenter. They worked together and were versatile and could do roofing as well. He said he had never seen them work apart. He also met Phili Ryan who had extensive property interests over there and he spent time with him looking at flats and learning about the property business there. He said that he spoke to people in an estate agents but could not recall their names, although the name Jeremy Hodgson did ring a bell. This was one of the names in a message intercepted from Allsop and Company. He was unable to recall who showed him houses. He said he had told a lie to the estate agents and had told them that Bank of Ireland, not Ulster Bank, were his backers. He needed money so he went to the AIB Bank with Sean Deane to get sterling for the Respondent. Mr Deane had assisted him to cash a bank draft for a sum in the region of £3,000. He said that when he went to England he was carrying three cheques worth about £40 or £45 pounds each from different persons and had his passport and a reference from a bank. This was an old reference, he said, from Ulster Bank which the manager had given him about six years ago. That manager had been there for about ten years but he could not recall his name. The reference was from the Ulster Bank in Tallaght and he took it in his passport. He had only wanted to open an account if they would not cash his cheques. But the reference had no effect on the Bank of Ireland in Harrow and they would not cash his cheques or let him open an account. He had met Phili Ryan and had given the cheques to him and he had told the Respondent to sign his name, address and telephone number and had given him about £140 sterling. Subsequently Phili Ryan rang him and said there was a problem with one of the cheques and until he received his wife's affidavit sworn on the 8 December 1999 he had not known that the bank had phoned him. As for the message from Alan Salis, he thought that he recalled him but wouldn't be sure. Phili Ryan had a friend Achim McInerney who was anxious to buy a property in Tutis Court. Mr McInerney was being advised by Mr Ryan about purchasing the property. The Respondent was asked to assist them in the purchase of the property. Phili Ryan and the Respondent went to see the property with the Respondent acting as a potential buyer. Phili Ryan said he would recommend the Respondent to pay £865,000 sterling for the property and put the Respondent forward as a serious potential buyer. This was a tactical ploy to assist Mr McInerney by the Respondent putting in a dummy bid just above the price which Mr McInerney was prepared to pay himself. The estate agent asked for a contact number and he was given the Respondent's number 086-2629590. He believed that their offer was accepted and then he discussed the property at length with the estate agent on his mobile phone and said that he was awaiting a Valuer's report. Mr Ryan was very pleased and asked the Respondent to ring up the estate agent and say that the Valuer had given a negative report and the property was only worth £800,000 at a maximum. He rang the estate agent whose name he could not recall. He said he did not buy the property and had no interest in it and that he had never heard the name Jim Hinks which appeared in the Tutis Court phone message from Alan Salis. As for Phili Ryan, the Respondent did not know his address and did not have a telephone number for him. He denied that he had any bank account in England and said he owned no property in England and had no interest or title to property in England.

I pause to reflect that a considerable amount of court time had been taken up with arguments about the inadmissibility of the intercepted telephone messages and this would have been quite unnecessary if the respondent gave a totally innocent explanation for the contents of the telephone messages.

The Respondent was cross-examined by Counsel for the Applicant in respect of his stay in London. The Respondent explained that he had met Phili Ryan in Mulligan's pub in Cricklewood. He had known him for about fifteen years in Dublin and had never had a phone number for him and had no plans to meet him but met him accidentally in the pub in Cricklewood. He had no telephone number or address for Phili Ryan nor did he have a contact number for Sean Deane but had been in his house in Cricklewood at a drinks party in December 1998.

On 27 January 2000 Counsel for the Applicant pointed out that the court had been informed that the evidence in the Applicant's affidavit was so prejudicial that the judge hearing such an application might have to disqualify himself; despite this, the Respondent was now giving what purported to be an innocent explanation of the telephone messages. Under cross-examination the Respondent gave a number of implausible explanations and contradictory statements. I was concerned about his state of health and ascertained that he was taking sedative medication. He was asked about the reference from Ulster Bank. He said that he had not brought it today and had no idea where it was. It seemed to be of no use to him when he could not get AIB to cash an AIB bank draft. He said that he probably put it in the bin and had not attempted to use it since then. He reiterated that he did not remember the name of the bank manager who gave him the reference. He said that Edward Rowland was the present manager and that there were two reasons for having the bank reference, the first to cash bank drafts abroad and secondly to get a better deal in a bank and the reference would indicate his previous history. He said that apart from the incident in London he never used the reference. When asked about Tutis Court he said that he was never in Tutis Court and that he did not know where it was. Then he was asked did he not make a joint bid of nearly £1,000,000 for this property without setting foot in it. He said that he never had any knowledge of where the property was. He said that he certainly did not recall Tutis Court and did not know if Tutis Court was one of the properties that he was in. He said that Sean Deane was a "subby" and that he was a "chippy" and that Mr Daly was a "brickie" and that they were both working down in Kent. He had given details to Sean Deane of his bank account number and sorting code, as he was to transfer £5,000 to the account which was frozen in Tallaght. He said that he did not know how AIB in North Finchley had his phone number. When he was asked about bringing Phili Ryan as a witness, the Respondent was evasive. He explained that Mr Ryan had difficulty with the tax man maybe fifteen years ago and was unwilling to give his telephone number in Dublin. He reiterated that he had no contact number or address for Phili Ryan, Sean Deane or John Daly.

When he was asked about Deane and Daly, he said he had known them for twenty years and that, in practically every house which he had had, Sean Deane would do work for him such as roofing and general refurbishment work. He was primarily a carpenter and worked on nearly every property in respect of which the Respondent was involved. He reiterated that Daly and Deane were involved in work on practically every property he owned. Daly and Deane did not phone him at home as this rarely would have arisen as he would have lunch with them. He had a list of properties and he had asked them as to whether they owned any of these properties and they had told him to mind his own business. He asked them about the list of properties when he met them in the pub in Cricklewood about Christmas 1998. One was a property at A Avenue and another was in B Avenue. They had consulted him about the site at A Avenue and he had spoken to an architect Pat O'Brien on their behalf. He clearly told Pat O'Brien that either Sean Deane or Sean Daly was the owner. When it was put to the Respondent that Mr O'Brien said that Deane's name was on the form as owner because the Respondent had told him that Deane was the owner, he replied that he would have told Mr O'Brien that he was doing the application for whomever had asked him to make the application but he would not know what connection they had with the property. As for the property in B Avenue, Deane and Daly had introduced him to somebody, Thomas Collins, could have been his name. As for the property at A Avenue he was more confident that it was Mr Daly who gave instructions about that house. As for the house in R Street, when he saw that his own name was on the planning application notice he had rung Mr O'Brien and asked him how this had come about and the architect apologised and said that he would change it. The Respondent said that to the best of his recollection Sean Deane was the owner of 14 R Street. He said he was shocked to learn that his name was on the application for 5 A Avenue, he knew nothing about it till Mr O'Brien said that in evidence. When he was asked as to how many properties he was involved in with Sean Deane where Sean Deane was the owner or apparent owner and not just a workman for him, he replied that only 14 R Street came to mind. He had had several selling dealings with Deane and Daly and they had worked on refurbishment jobs in his own houses and they had asked him to make planning applications for them in respect of other properties. When he was challenged that he had never told the court that he had sold property to Deane and Daly he replied that it had never crossed his mind to say that he had sold properties to Deane and Daly. They had worked a barter system. He had had a property needing refurbishment and he had not the necessary funds to have it refurbished and they would work as small builders on the refurbishment of a house. He would draw up a plan as to the type of work which he wanted done and they would discuss the approximate costs. This has been done in respect of 26 V Street, 86 R Road, 68 L Road and 34 B Avenue. He said that he only ever had property in Dublin and that there might be another one or two, which were not listed here. He said that he had sold the rear of 57 O Square to Deane and Daly and listed 12 houses 10 of which were his investment properties and 2 of which were his former family homes. He had sold 5 garages and about half the basement of 86 R, to Deane and Daly as joint purchasers. In all he had sold S garages at 86 R Road, 87 G Square, 34 B Avenue, 26 V Street and 68 L Road. He had 12 properties in which major work was done. There was a swap transaction at the above 5 addresses. Deane and Daly had become owners of the garages by way of barter in lieu of money. J O'D, had been prepared to give them pieces of garden to clear his accounts. As time went on the three of them went to see Mr Maguire.

A number of witnesses had been interposed on Tuesday 18 January 2000 and I propose give a synopsis of their evidence at this stage.

Lorraine Kendellen. This restaurant manageress gave her evidence with obvious clarity and honesty. In or about October 1998 she was looking for accommodation in Drumcondra and rented from J O'D 2 St B Road. He called himself Michael Murray and asked for £625 per month. She and two others became his tenants and she paid "Michael Murray" a deposit and rent in advance and he signed a receipt in the name "Michael Murray". They paid the rent monthly in cash and "Michael" came to collect the rent of £625. This went on for six months and then there was a change of landlord to Declan Keogh who collected the rent. Under cross-examination she said that on the telephone J O'D called himself "Michael Murray". She said that she was nearly positive that it was on the first day that she met him outside the house, when her two friends were with her, that he had told her, that his name was "Michael Murray". She did not recall him saying outside the Mater Hospital when she paid him the deposit that he was acting for "Michael Murray". On one occasion they had been locked out and she rang him on the telephone and addressed him as "Michael". On another occasion he came to mend the window himself and they had introduced him to one of the girl's sisters as Michael. To her he was "Michael Murray" for that six months.

John Ryan gave evidence that he was a senior staff officer from the planning department of Dublin Corporation and had possession of the planning register and the decision records. He gave formal proof of a number of planning applications

(1) Site to rear of 26 V Street fronting on A Road. This planning application was made in the name of J O'D of 26 V Street. Additional information was received on 2 February 1998 and Patrick O'Brien was the applicant's architect and the original planning application was received on 14 July 1995. The planning register reference number was 1436/95.

(2) 0959/94 34 B Avenue, Dublin 8. On 13 May 1994 an application was made for retention of five flat units in the name of J O'D with Pat O'Brien as the applicant's architect. A grant was issued on 11 July 1994.

(3) 57 G Square. On 2 June 1995 a planning application was made in the name of J O'D of 10 R Road with Pat O'Brien as the architect.

(4) 06264/95, 5 A Avenue. A planning application was made in the name of J O'D with Pat O'Brien as the architect and a decision issued on 12 April 1995.

(5)4 St I Avenue. The planning application form was received on 8 February 1993 with the applicant Mr S Deane. His mobile telephone number was given as 088-590231.

(6) 35 I Parade. Reference No 0610/94. Applicant John Dean (no address given) architect Pat O'Brien

(7) Planning ref 895/83 86 R Road. Applicant J O'D of 86 Lower Rathmines Road for double garage at rear

(8) 80568/94 38 E Street. Applicant John Dean, Architect Pat O'Brien, grant 7 July 1994

(9) 14 R Street. Applicant J O'D of 14 R Street, Pat O'Brien Architect, mobile telephone of Applicant 088-590231

The mobile telephone numbers in relation to applications at No 5 in the name of S Deane and at No 9 in the name of J O'D are the same number 088-59023 1.

Patrick O'Brien MRIAI, gave evidence on Wednesday 19 January 2000 that he had qualified in the early 1970s and practiced as an architect in Fairview. He explained that he was in a one-man practice and that he had already been on standby on six occasions for this case. He explained that he kept very little on his file about his clients, usually just documents and correspondence and the names and addresses of his clients. He would normally have some contact address or telephone number. He had first met J OD in late 1993 when he was engaged by him to deal with a retention application in respect of 41 M P Avenue, being also 4 B Terrace where a three storey extension to the rear, a substantial work, had been built. His function was to regularise work which had already been done. On 11 July 1994 notification of the final grant of retention permission came through. Next he had submitted a planning application for J O'D in respect of alterations which were to be done to 10 R Road and a notification of planning permission came through on 7 September 1995. In July 1995 he had submitted a retention application in respect of 57 G Square for roof lights and an extension. He thought that this application had been withdrawn. In 1994 he had been engaged by J O'D with regard to retention of five flat units at 34 B Avenue. Three flats had been converted into five flats without planning permission and he had assisted with a retention application. The structures had been unauthorised developments and he believed that J O'D had himself been responsible for them.

In May 1996 he had done work for J O'D in respect of 86 R Road. He had also done work by way of an outline planning application for conversion of an existing workshop at the rear of 26 V Street to a dormer residential unit. This application was never fully processed because Dublin Corporation looked for further information which was never submitted. He had prepared a map and certificate of compliance in respect of 51C Road. He had carried out an inspection and signed a certificate for J O'D but the original certificate was still on his file. He had last worked for J O'D as an owner of property a couple of years ago. The only recent work which he had done in which J O'D was indirectly involved was for Dr Noel Cogan. J O'D had shown him the site to survey at 71 R Road but Pat O'Brien's understanding was that the owner of this property was Dr Cogan.

In respect of 5 A Avenue, Mr O'Brien explained that he had originally acted on behalf of J O'D and had put in a planning application in the name of J O'D. Later he was told by J O'D that the property belonged to John Daly. The planning application was signed on 17 February 1995 and he had clearly understood at the time that J O'D was an interested party. On the site notice he had put that J O'D was making application and he himself had signed the planning application form.

With regard to 14 R Street in respect of which a grant issued on 19 December 1994 he, Pat O'Brien, had put down J O'D as the owner but afterwards J O'D told him that the name should have been John Deane. It was decided to let the matter run as the planning application goes with the site rather than the person. He was not sure when J O'D had told him that he had put down the wrong name. He, Pat O'Brien, had put down J O'D as he, J O'D had instructed him. However J O'D claimed that John Dean was the owner of the property. He had taken his instructions from J O'D with regard to the making of the application. J O'D later told him that he had put down the wrong name and J O'D said that it was Mr O'Brien's mistake. It was while the planning application was in progress that he had learned about the wrong name and a decision was made not to withdraw it although he knew that this was not right. He thought that he had talked to John Deane on one or two occasions although he did not know his address or telephone number. J O'D's telephone number was 088-920231 and his address was 10 R Road. He felt that the reason why he had no fee notes was because he was paid in cash and so had few records. He said that he had met John Deane at R Street and for lunch one day with J O'D. He felt that he had met him two or three times but J O'D was the link. He would not know Mr Deane now if he met him. He believed that there were other properties that John Deane was involved in but this was from memory. He thought that he had no bills for John Deane but had dealt with two or three transactions for him with J O'D as the link.

Mr O'Brien had been served with a subpoena duces tecum requesting him to bring thirty-four listed files. He had brought nine of these files and so was requested to locate the other files and to bring them back to court. On his return to the witness box after 3 pm he recounted how he had gone to the toilet and on his way back J O'D had come to him and had attempted to describe John Deane to him. He was walking away as the discussion took place and he did not take it all in but the gist of the description was that John Deane was almost fifty with a moustache and was a countryman. I should explain that Mr Maguire had been recalled and interposed as a witness while Patrick O'Brien was absent. In the course of his evidence Mr Maguire said that he knew a Sean Deane who had been introduced to him by J O'D who had brought him into his office as a client. He remembered him from two or three years ago as he wanted a marriage declaration sworn that he had not been married here or in any other jurisdiction and he had seemed to be a bit old to be getting married. He had addresses for him at 38 E Street, 35 I Parade and 4 St I Avenue. Sean Deane was aged 55-60; he was very thin and had a bit of a short beard and was a countryman.

J O'D was called by his Counsel to refute the allegation that he had attempted to interfere with the witness Pat O'Brien and to influence him with a description of Sean or John Deane. J O'D explained that he had left court to go to the toilet and was returning when he saw Pat O'Brien and made an off the cuff joking remark as he passed him by saying "poor old Deane looks about 55/60 -- a country fellow -- according to Maguire". Mr O'Brien had walked away before he had finished his comment and so he walked back into court. Under cross-examination he maintained that it was a flippant comment and the moment that Mr O'Brien had made it clear that he did not want him to speak with him then he had stopped. I indicated that I would take this incident into account in my overall consideration of the case.

Patrick O'Brien was then recalled and said that he had located two further files involving planning applications for John Deane.

(i). 38 E Street. He had prepared a planning application on 31 March 1994 with the name of the Applicant being John Deane and he had a certificate of compliance in respect of this property. He had no fee note in John Deane's name or in anyone else's name. He had checked with his wife who kept the fee notes but he could find no fee note in respect of John Deane. A grant of planning permission had issued in July 1994.

(ii) 35 I Parade. In April 1994 he had made a planning application for John Deane but had no A fee note in John Deane's name.

(iii) 14 R Street. Again his instructions had come through J O'D. In effect all his dealings were with J O'D in respect of all three properties and J O'D had paid him in respect of them. It was possible that John Deane had paid him one or two amounts but he was vague on this. As for 38 E Street his instructions had come from J O'D. He had visited the property and done a survey. He had not monitored the carrying out of any of the works on any of the projects J O'D was involved in. John Deane had been introduced to him by J O'D and he had no independent dealings with John Deane other than through J O'D. He could have been anyone. Payment was made in cash and he had no address for him and he had no contact telephone number for him. This was unusual as he would usually have some way of contacting a client even when the introduction to him was through a builder. He had met with Mr Deane when he made his first inspection at 14 R Street and it was possible that he was paid some fees directly.

With regard to 10 R Road he, Pat O'Brien, had refused to give a certificate of compliance in respect of the work done. A storey had been added without planning permission and he was not happy with the overall position. Some of the work was incomplete and he was worried by the addition of a floor. J O'D had come to him as owner of properties and not as a builder and he had made a number of planning applications for J O'D as owner. As for John Deane, he had never seen any evidence of his ownership of properties and for his belief in that respect he relied on J O'D.

Seamus Maguire was recalled at 2 pm on 19 January 2000 by the Applicant's Counsel. J O'D had been introduced to him as a client about 1990 by another property man Philip Ryan. His office had carried out a number of transactions for J O'D who had ceased to be a client of the firm since they had got notice of the orders in the Family Law proceedings. J O'D had continued to collect rents for him in respect of his family's properties and J O'D would deduct 15% of the rents as his commission. His firm had a large conveyancing practice and every six weeks they would prepare documents for registration and memorials of deeds would be prepared and taken by their law clerk for registration. He had been given a list of names yesterday and had checked against the names Sean Dean, Sean Deane, John Dean and John Deane. A search the previous evening had found three properties, 4 I Avenue was in the name of Sean Deane. 35 I Parade was in the name of Sean Dean and 38 E Street was in the name of Sean Deane. In May 1996 the firm had changed to computerisation and non-active cards had been destroyed. They had no records in respect of Sean Deane but he knew a Sean Dean who had been introduced to the firm by J O'D. Mr Maguire remembered him from two or three years ago when he wanted a marriage declaration sworn that he had not been married here or in any other jurisdiction. He had seemed a bit old to be getting married. The addresses they had for him were 38 E Street, 35 I Parade and 4 St I Avenue. He was aged 55 to 60 and very thin with a bit of a short beard and was a countryman. Sean Deane was the purchaser of 35 I Parade. He was also the purchaser of 4 St I Avenue and Sean Deane as the purchaser had given an address at 120 C Road. The purchase took place in 1994 and there was no letter on his file to the client nor was there any attendance note or any copy of a fee note.

He had conducted a search against John Daly. He appeared as the purchaser of 23 M P Avenue. There was a letter dated 6 June 1994 to John Daly. He had searched against the name Stratfield Ltd and located a contract dated 16 August 1996 from J O'D to Stratfield Ltd in respect of 10 R Road. The contract had been forwarded to Peter McKenna & Co solicitors about 17 April 1997. McKenna & Co had sent the papers back as the sale to their client Ms Murphy was not proceeding.

Mr Maguire said that on 12 August 1995 he had witnessed a memorial in respect of a sale by J O'D of 68 L Road to Sean Deane. Similarly Sean Dean had acquired 14 R Street from J O'D on 15 August 1995. Mr Maguire said that he had been informed by Counsel for the Respondent that a number of garden plots had been sold but he could find no record on his files of the sales of the garden plots. He felt that his firm must have acted for both parties J O'D and Sean Deane.

Mr Maguire said that he had caused a check to be made against the name Sean Daly and he had found that they had acted for Sean Daly as purchaser about March 1994 in respect of the purchase of two cottages namely 51 H Cottages and 54 H Cottages. The address on the conveyancing file for Sean Daly was 4 B Terrace. Mr Maguire explained that there had been a number of attempts to sell 10 R Road; the proposal in 1996 to sell for £175,000 had fallen through and in April 1997 the documents in respect of this property and in respect of 57 G Square were sent by his office to Ulster Bank in Tallaght. He also had with him a memorial dated 26 April 1995 in respect of 4 B Terrace whereby J O'D had sold this property to Pauline Connelly and Mary Campion. I should add that the significance of this is that, that is the address given for Sean Daly. For ease of reference with regard to the property transactions, I propose to annex a schedule M listing the properties and their alleged ownership and the dates of sale in an appendix to this judgment.

On 28 January 2000 Edward Rowland, the manager of Ulster Bank in Tallaght, was called. He said that he was appointed in April 1993 and had dealings with J O'D in late 1993. In 1997 when he was advised of the existence of the High Court Order in respect of a Mareva injunction freezing J O'D's accounts, he had to advise J O'D that the bank could no longer operate his accounts being a current account and several loan accounts. J O'D had asked him at a later stage if he would issue him with a general reference and there was a copy letter of reference dated 26 May 1997 on his file. The reference was to the effect that J O'D had been a valued client of the bank for about twenty years. Mr Rowland said he knew that the Mareva Order forbade the opening of a bank account and he had no more dealings in respect of the bank reference. Since then a term loan account had been opened to enable J O'D to pay solicitor's fees and the sum outstanding on this account was £62,326. A previous term loan account of £148.496.96 had its origins in a property transaction. J O'D also had a current account which was £28,219.92 overdrawn and another current account which was £12,795.18 overdrawn. His branch held security in the form of an equitable deposit of the title deeds of 57 O Square and of 10 R Road, and also insurance policies namely Norwich Union policy which had been valued in 1998 at £27,368, Hibernian Life policy in the sum of £8,276.08, Irish Life policy in the sum of £10,137.59 and Standard Life policy in the sum of £6,928. In the past he had held deeds to 66 B Road, 86 R Road, 51 O Road and 57 G Square; at a later stage he had held deeds to 68 L Road and 10 R Road. His understanding was that the Mareva Order froze J O'D's accounts with the exception of direct debits which continued to be paid to maintain the insurance policies. There was a total sum due from J O'D of £251,036. He thought that he was entitled to give J O'D the reference dated 26 May 1997 about his being a "suitable person to open an account" although he himself would not have opened an account for him and did not intend to breach the order or to facilitate anyone else in such breach. I should add that the Respondent's affidavits sworn on 27 April 1996 did disclose and exhibit these insurance polices. One significant feature of Mr Rowland's evidence is that his evidence with regard to the giving of the bank reference dated 26 May 1997 is fundamentally at variance with the version of events surrounding this bank reference given by J O'D who gave the impression that he couldn't remember the name of the bank manager who gave him the reference and that it was given at a much earlier time.

John Elliot, a chartered surveyor and partner in Elliot and Fitzgerald, Estate agents and Valuers, was called and gave the valuations of a number of properties which he had inspected from the kerb side. I was impressed by his expertise and his pointing out the deficiencies in his inspection and I accept the valuations, which he made in respect of the properties, which he inspected.

(1) 10 R Road. He looked at this as having a potential yield from a three storey over retail premises investment; as there were six residential units he felt that a rent of £36,000 pa could be obtained from the residential units and £12,000 from the retail premises and he valued the property at £750,000.

(2) 57 G Square. He valued this on the basis of comparative sales at £350,000. On the basis that there were in fact 16 tenants paying £50 per person per week then No 57 could be worth £480,000 Two other houses on the Square had recently sold for sums in excess of £480,000 but both of these properties had garages and back gardens unlike No 57.

(3) 16 The 1. This is a modern terraced house built in the late 1960s and is where P O'D resides and is jointly owned by the parties. A similar property in the same complex sold recently for about £180,000 and accordingly he valued number 16 at £178,000

For the sake of completeness of an understanding of the situation I should point out that there are incumbrances on 57 G Square and 10 R Road of about £251,000. If one takes the value of the insurance policies as a factor then this debt might be reduced by a figure of about £57,210. I am inclined to take the value of 57 G Square at £350,000 although I am aware that Mr Elliot has said that if one takes the rental income at twelve years purchase into account then one might procure as much as £480,000 for this property. As for the third "admitted property", 16 The 1, Mr Elliot valued this property at £178,000. This is jointly owned by the parties and the amount outstanding on the mortgage is about £70,000 so there is an equity of about £108,000.

Mr Elliot also gave valuations in respect of four rear garage type properties;

(1) garage at rear of 26 V Street £60,000

(2) garage at rear of 68 L Road £20,000

(3) garage at rear of 57 O Square £140,000. He had to estimate the square footage of a number of lock up garage at the rear of number 57.

(4) garage at rear of 84 R Road £46,000.

Mr Elliot had also inspected 28 M Road, the former family home of the parties. He expressed the view that this home would now be worth about £750,000 and was in a very good location. He made it clear that 16 The 1, was a much less desirable residence than 28 M Road. In cross-examination figures were put to Mr Elliot in respect of the rents from the shop and the flats in 10 R Road. It was suggested that rents totalling £30,240 could be secured from the six flats each yearand that £12,000 could be obtained from the shop. Counsel for the Applicant objected to these figures being put as they differed from a schedule of tenants and rentals which had been furnished on behalf of the Respondent in March 1999. However Mr Elliot said that he had not received a schedule of rents and had taken the view that if the premises were sold then it would be sold with vacant possession. It was suggested to him that there was a planning difficulty in respect to 10 R Road and in respect to 57 G Square. With regard to 10 R Road unless there was an enforcement order or the work had been done less than five years ago, then he would not revise his valuation but he would factor something in for the lack of planning permission although this might be rectified by a retention application. With regard to 57 G Square he was not aware of a planning difficulty with regard to a roof extension.

These aspects confirmed my impression that the Respondent had repeatedly displayed a cavalier attitude towards the planning laws when extending or altering premises.

Review of Procedural Situation

It will be recalled that evidence was being heard on the motion in relation to the application for the taking of evidence before courts abroad when a number of witnesses attending on subpoena were interposed. The cross-examination of the Respondent on the motion had not yet been completed nor had the Respondent's other witnesses and response and submissions to the motion yet been heard. Furthermore, due to the evolutionary nature of the case, motions in respect of adequacy of discovery and the taking of evidence abroad had preceded the usual opening of the case on behalf of the Applicant and the taking of the Applicant's evidence. Two submissions were made by Counsel on behalf of the Respondent at this stage. First she submitted that the court should hear out the case in terms of evidence in this jurisdiction before determining the need for evidence to be taken in any other jurisdiction. She further submitted that letters should be written to the persons named in the affidavits to secure statements from witnesses who were abroad and that this might obviate the need for their evidence to be taken before the courts abroad. She stressed that now was the appropriate time for the Applicant's Counsel to make an opening statement and then to call the Applicant.

Counsel for the Applicant responded that the motion in respect to the taking of evidence abroad was still before the court and that the suggestion of sending letters seeking statements was a non-starter as the letters at present envisaged would be written to AIB in North Finchley and to Allsop and Company Chartered Surveyors. Since J O'D had sworn he was not a customer of the bank a request for a statement would yield no result as the bank would not disclose financial information without the permission of the customer concerned. Secondly, the Applicant wished to know how the Respondent came to be a bidder in respect of Tutis Court particularly in the light of the message from Alan Salis. J O'D had said that Alan Salis was probably in the firm of Allsop and Company; however inquiries had been made of Allsop and Company and they had never heard of Alan Salis, so there was little point in writing to Allsops in this respect.

The Applicant gave her evidence clearly and was careful, in my view, to give as accurate and fair a version of events as she could. She told how they had met in 1980 when they were both teachers. She had moved from Galway to Dublin in early 1982 and she had taken steps to purchase 74 G Avenue with her funds. Subsequently they had jointly bought 28 M Road, 68 L Road and 16 The 1. J O'D had been involved in investment properties in which there were tenants and she had helped him by collecting rents on Fridays and Saturdays and played her part in refurbishment of properties. They had got married in April 1984. The investment properties were in the names of J O'D only, although she was involved not just in rent collection but also in the supervision and payment of workmen and the collection of building materials. They had lived at 11 O Road in a rented property in April 1984 and had then, in September 1985, purchased 28 M Road. At one stage they had 107 tenants. She did much of the collecting of rents and the counting of rental monies as well as the bagging of coin. She recorded the rents collected and there was a complete record on each flat in respect of deposit payments and meter reading. The premises on Botanic Avenue was particularly labour intensive as she herself had had to do the cleaning of the bathrooms and showers each Saturday. She also did mowing of lawns and trimming of hedges. Their method of obtaining tradesmen was to place an ad in the evening papers and then to deal with the prospective worker by telephone. One workman, Martin Killeen had been employed by them fairly continually and was good at painting and DIY work. She had often met him on site and would drive him here and there. From the time she met the Respondent in 1980 to 18 December 1995 when he left The 1, the Respondent never mentioned the names of Sean Deane or John Daly and she had never met either of them on any of her visits to properties. Nor had she ever received a phone call from either of them. In the course of her paying workmen whom they engaged, she never came across a Sean Deane or John Daly. On the other hand Martin Killeen often made contact by telephone at her home and she often phoned him. During July and August she would frequently be on site and would be fetching materials wanted for plumbers or electricians. On a typical Friday she would be collecting rents most of the evening and on other evenings their time would be taken up dealing with tenants. She contributed both her time and her money towards the work on the properties. For example, in respect of 68 L Road she had spent in the region of £10,000 of her money on plumbing and architectural features such as doors. Their property activities left little time for social life and in the early years of their marriage she had committed her social life to the property activities. It was very lucrative and they planned to work hard and then retire at the age of 50. Their plan was to have an Irish house by the sea in Galway or Clare and a house in the south of Spain in which to spend the winter months. The Respondent frequently used other names particularly John McMahon and John O'Shea. For example, he applied for a cable TV for 57 G Square in the name of John McMahon . . . On the form of application dated 18 June 1984 to Cablelink in his handwriting he gave their former address at 11 O Park as the address of John McMahon. He also used the name Multi-Line Enterprises and tenancy agreements in respect of 68 L Road and 51 O Road were produced to indicate this.

The Applicant then gave evidence that she bought 74 G Avenue and this was her house and she paid the deposit of £9,000. J O'D had written a cheque for £9,000 to the auctioneers but she had subsequently written a cheque to him for £9,000 and she produced this cheque marked paid. The Respondent had sworn in an affidavit on 15 December 1997 that he paid the deposit and that he had never been reimbursed for his outlay on the property which had been sub-divided into 7 apartments with an extension. A concession was then made on behalf of the Respondent that he was paid by the Applicant's cheque and that he did do work on the extension.

The Applicant also produced documents in respect of the return of machinery such as a transformer showing her involvement in the renovation work on the properties. She also dealt with Telecom Eireann in respect of the phones in the rented properties and produced documents in this respect including a letter dated 29 May 1990 from the Ombudsman in respect of a dispute she had with Telecom Eireann about telephones in the rented flats.

The Applicant gave clear and credible evidence that before April 1999 she had a black weekend bag with a shoulder strap in which she used to bring documents to court. Her "legal bag" contained all her bank books and statements over a number of years together with 3 building society books and the statements from Telecom in respect of her land line telephone at 16 The L and of her mobile phone. On 14 April 1999 her mother had died and she had gone away to attend the funeral. She had concealed the legal bag in the wardrobe in her bedroom under clothing. When she returned to the house she realised that the front door had been opened. She found nothing disturbed in the house except that her legal bag had been taken from the wardrobe. Counsel for the Applicant then called for the bundle of original telephone accounts, which had been produced in court previously to be handed up for the purpose of identification. Subsequently at 2.10pm on Wednesday 2 February 2000 telephone account statements were handed in as described.

The Applicant explained that in summer 1998 she had a telephone conversation with the Respondent. She had received a letter from EBS in respect of ejectment proceedings because of the failure to pay the mortgage instalments on 16 The L. In the course of a long conversation the Respondent said that she had some cheek to be ringing him about 16 The L as she was living in the house and was not paying the mortgage on it. He said that he had written to the EBS and told them he had left and that she was living there on her own. He then said that he had hidden his assets and that she was a very wise woman to have got the addresses of his properties but that she would never get proof of him being the owner of them and for the court she needed proof. Luckily for him her legal representatives were very slow and they were giving him time to get everything in order and he only needed a little more time for this. He went on to say that there were two women after him, the mother of his daughter and his wife and neither of them were going to get a penny of his money. She said that this admitted hiding of assets caused her to listen to his messages on his answering machine. She had written down his messages accurately as set out in her affidavit of 8 December 1999. Having listened to the Respondent's explanation about messages and how Philip Ryan in London never gave telephone numbers even to his friends, when she had left court on Friday evening, knowing Philip Ryan's properties in Dublin because the Respondent has spoken to her about them many times, she had chosen one property in R Road and had located a women tenant in No 28. She had asked for Mr Ryan's telephone numbers, and took a note of them from her, being a Dublin telephone number and a mobile number. On her return home she had checked the telephone directory but Philip Ryan was not listed. However the 1993 directory did give Philip Ryan's telephone number against his name and she rang and heard an answering machine requesting the caller to leave a message or to call the mobile telephone number. As for 68 L Road in late August 1991 she had lent the Respondent exactly £20,000 which he needed for ongoing work. This was eventually repaid to her in November 1992. They were joint purchasers of 68 L Road and she had never agreed to sell her interest in 68 to the Respondent. Moreover she had never gone into Mr Maguire's office in 1995 nor did she sign any document selling any property to the Respondent. She refuted the suggestion in the Respondent's affidavit sworn on 15 December 1997 of paragraph 4 that she proposed to sell her interest in 68 to him for £23,000. She was doubtful about her signature on the indenture of conveyance.

While they lived together she enjoyed a high standard of living. She purchased her clothes in Richard Allen on Grafton Street and they took good holidays in the Canary Islands, Cuba, Cyprus and Morocco. In Morocco she had discovered that the Respondent had had a child by a Ms McI. This child was the subject matter of the maintenance proceedings in the Circuit Court in respect of which Judge Murphy adjourned attachment proceedings. It was in respect of maintenance for this child that this court had granted an exemption from the Mareva Order. The Applicant had also become aware of his relationship with EF.

In summer 1998 in the course of a long telephone call the Respondent had intimated that he intended to cause her embarrassment at the school at which she worked and she was so perturbed by this that she did not return to work at that school but had taken a much less suitable job in January 1999. She was now 51 and it was becoming more difficult to find a job as a remedial teacher.

The Applicant was subjected to a lengthy cross-examination on the instructions of the Respondent. She conceded that she had tapped his mobile telephone number 086-2629590 in respect of nine calls between 17 December 1998 and 23 December 1998.

On Tuesday 8 February 2000 a motion was brought on behalf of the Respondent's solicitor to be allowed to come off record because of a lack of funds from his client. This was combined with an application to the court to authorise the Respondent to pay his solicitor £60,000 out of his assets which had been frozen. Counsel for the Applicant drew attention to the order made by Lavan J on 21 March 1997 and by McGuinness J on 9 March 1999 and requested that the Respondent should swear an affidavit with regard to the proposed source of funds in view of the fact that, if the funds were to be forthcoming from the Ulster Bank, then this would affect the Applicant's equity. I pointed out that the court had allowed the Respondent to pay his wife's solicitors £20,000 (McGuinness J having nominated the sum of £60,000) and a sum to his own solicitor and had then allowed his solicitor to represent him and that the court had in effect recognised that he had purged his contempt to an extent by putting in a composite affidavit although the completeness and veracity of this were under challenge. I was informed that the Applicant had paid £2,500 to Kenny Stephenson and Chapman, her new solicitor, and that on 9 March 1999 the Respondent had obtained a loan from Ulster Bank of £50,000 in respect of fees due. I indicated that an affidavit and probably a letter from Ulster Bank would be required indicative of the Bank's attitude towards furnishing a further advance but for the present the Mareva injunction was to continue. I indicated that the court would look favourably on making an order for the release of funds from the freezing order provided that the Respondent put in evidence that the Ulster Bank was prepared to lend him a further advance.

Under further cross-examination the Applicant said that she had £38,000 in AIB Ranelagh but that her bank statements in respect of this had been stolen in her "legal bag". She produced a letter from the Department of Education dated 4 April 1996 in respect of her pension entitlements. On 1 July 2007 she should have 35 years pensionable service and would be over 55. Her pension would be more than £11,000 together with a lump sum of £32,748. While she had paid the insurance on 16 The L she had never made mortgage payments on this property, although she had made the last few mortgage payments in respect of the house at M Road. Her money and energy had gone into the buildings and not all of the money expended by her had been reimbursed to her. The cheques given by her in 1991 had been for about £10,000 but those cheques had been in the "legal bag" which was taken from her house. She explained that she had paid for their two holidays in late 1994 and that it was not until about April 1995 that she was repaid by J O'D in respect of this.

The Applicant recounted how she had demanded repayment of monies expended and she made this demand in or about February 1993. Counsel for the Respondent put a note of demand dated 21 February 1993 to the Applicant. This copy of the request for a bankers draft for £6,928.72 before Friday 26 had on the bottom of it in the Respondent's handwriting:

"24 February 1993

Draft for £6,928.72 as requested. A receipt will not be necessary. Thanks J."

The Applicant said that she could not recall getting that draft and would be quite sure that she did not get a bank draft. She said that she did receive a cheque in 1995 which was post dated and for £500. She said that this cheque, which was cashed on 13 July 1995, had been in her "legal documents bag" which had been stolen.

John Elliot was then recalled and gave his valuations on nine further properties; these were all properties which had ended up in the names of Sean Daly, John Daly, Sean Deane or John Deane. Mr Elliot valued 5 A Avenue at £135,000, 4 St I Avenue at £140,000, 35 I Parade at £130,000, the rear of 34 B Avenue at £150,000, 38 E Street at £130,000, 14 R Street at £240,000, the rear of 68 L Road at £20,000, 54 H Cottages at £160,000 and 51 H Cottages at £150,000. Mr Elliot also put a valuation of £46,000 on the rear of 86 R Road, £140,000 on the rear of 57 G Square and £60,000 on the rear of 26 V Street. In respect of these three properties J O'D himself said that he bartered these to Deane and Daly for work done.

The Applicant was then strongly cross-examined about her contribution to the renovations of the properties. She insisted that the £6,928.72 due to her was not for lights, interior decorations and furnishings but was for plumbing and electrical materials, glass and timber and such like. She had bought material from Hickeys in Henry Street for curtains and she made up the fabric herself for every apartment since 1981. She had bought an antique mahogany fire surround for 68 L Road and this was in the basement front room. She had used her antique MGBGT for carrying two-metre length timbers and even fireproof doors. I came to the conclusion that she had made a very considerable contribution both in time, work and money to the renovations of the properties. She also said that in 1990 the Respondent led Dublin builders providers to believe that he was opening a shop in 10 L Road and by this he secured wholesale prices on the basis that he was retailing. It was suggested to her that she only had a say in the layout of the three houses which were bought in their joint names and not in any others. She refuted this as being totally untrue and said that the same procedures applied in respect of every house they renovated and that in every summer except in 1987 she was on site by 8.30 am during the school holidays. She was repeatedly attacked with regard to her credibility and veracity in respect of her recollection with regard to the purchase and renovation of 74 G avenue. Despite the theft of her documents in her "legal bag", during this very lengthy cross-examination her recollection was clear and consistent. After lengthy cross-examination about details of expenditure and refurbishment work her veracity remained unscathed. She was adamant that she never received the bank draft nor had she ever before seen the words on the bottom of her demand dated 21 February 1993. She contributed money towards the renovations both from her salary and from her rentals from G Avenue. In summer 1991 the Respondent was the subject of a tax investigation which had been going on from 1988 and she had mortgaged 84 G Avenue to raise £20,000 for outgoings. In April 1991 the Respondent had also bought a shopping centre in Greystones for £530,000. Around that time he also led her to believe that he had bought a property at R Road. In the course of her examination she was criticised for failure to discover three documents but it transpired that all three had in fact been included in her affidavit of discovery. From her net proceeds from the sale of 84 O Avenue she had used about £30,000 on paying legal bills and had a residual sum of £40,277.41. She said that the neighbours to 4 St I Avenue referred to the Respondent as John O'Shea.

In late December 1992 she had realised that the Respondent was living with EF. On 14 February 2000 the Applicant was re-examined. The note of demand of 21 February 1993 was again handed to her. She confirmed that she had never seen the writing on the bottom part of the note before it had been put to her in cross-examination and that she had never received the bank draft referred to in the note. She said that the last occasion on which she had seen this document was in April 1999. It was in her black bag in which she carried her legal documents and the writing below her name was not on the note when the bag was stolen on 14 April 1999. She then produced the actual note which she had left on the table for her husband in 16 The L. The note which had been handed to her on Thursday was a draft copy of the actual note which she had left with lists of items of expenditure by her which were written out by her on three sheets, with the note which she had actually left. The copy with the forged addition by way of "draft for £6,928.72 as requested" was an addition to the copy stolen in her "legal bag". Furthermore the note which was left on the kitchen table had extra writing on it which was in the Respondent's handwriting and appeared to be telephone notes made from prospective workmen. As further proof of the authenticity of her version of this brazen forgery she produced an envelope which had been clipped on with a paper clip to her note and list of items, this read in the Respondent's manuscript:-

"cost of work carried out at 74 G Avenue between 10/11/89-16/02/90, £3,988 plus interest."

She said that when she got that note back with her husband's comments her understanding was that he was not going to give her any of the £6,928.72. Under cross-examination she said that the originals which had now been produced with the words "this Friday" doubly underlined had been left in by her to her former solicitor years ago and she had drawn them to her present solicitor's attention only that morning. They had been with her former solicitor since 1995. She had located them in the box of documents that morning.

Finally the Applicant said that she had paid £64,553 in fees to her former solicitor and this did not include the £20,000 paid by the Respondent. She had since paid £2,500 to her present solicitor and £1,313 for transcripts.

Stuart Gallagher, tax accountant of Cooney Carey, Chartered Accountants and Tax Consultants, was called on behalf of the Respondent. He had been advising the Respondent since he came to McGrath & Co, his former employers in about 1991. He produced a schedule of assets of the Respondent as of 1 February 2000. His responsibility was to prepare the tax return and he had not prepared the accounts himself as these were done by the accountants. The valuations of the three admitted properties were given as 57 G Square at £300,000, 10 R Road at £175,000 per the former contract and 16 The L at £200,000. The endowment policies were valued at £52,720 and these were the policies lodged with the Ulster Bank. A sum of £13,325 was due in respect of maintenance in respect of the Respondent's non-marital child and £4,235 was due to the child's solicitor. A sum of about £15,000 was due in respect of accountancy and tax consultancy fees and a sum of £33,117 was included in respect of capital gains tax and income tax due with his liabilities in the order of £326,855. His gross rental income was shown at £30,732 with £27,000 going in expenses so that there was only a net profit on this of £3,836. This schedule made no mention of the Respondent's income as a rent collector for others and only showed rental incomes coming in from 57 G Square and 10 R Road. On the schedule 57 G Square and 10 R Road were in with a valuation at cost of £123,433 which bears no relation to their market value. Mr Gallagher made it clear that he had not been made aware by the Respondent that he had been having difficulty with the Revenue Commissioners. He said that he was not aware of any property having been disposed of by the Respondent other than at market value. He confirmed that it would be very unusual for a client to dispose of six properties without consideration except between connected parties such as spouses or members of a family. He had never come across a sale for no consideration from an unconnected party. He would regard it as very unusual if there was a pattern of sales for no financial consideration to an unconnected party. If a client, instead of paying people, does work for them, as a tax accountant he would have to account for this in the accounts. The Respondent had never told him of his practice of doing work in order to pay off fees and so he had not transmitted this information to the Revenue on the Respondent's behalf.

I digress for a moment to point out that no explanation was forthcoming from the Respondent in respect of the rent roll with regard to 10 R Road and 57 G Square which would appear to be in excess of £68,000 per annum nor the 15% commission on the rentals from Mr Maguire's property and on Dr Cogan's property.

By way of further complication in this already elongated and complex case, a motion was then brought on behalf of O'Connor and Bergin to be allowed to come off record because their client, the Respondent, had long since failed to recoup them in relation to outlay and costs. Mr Bergin had already continued with Counsel to bear the burden of this difficult case and I have no doubt that this application was only brought in extremis. The Respondent indicated that he wished Mr Bergin to continue to represent him and he wanted the case brought to a conclusion. The court had indicated that the release of funds made available by the bank would be favourably looked upon if they were forthcoming from the Ulster Bank despite the existence of the Mareva injunction. Counsel for the Applicant made it clear that they did not accept that the Respondent did not have funds available and would seek to have funds paid into court as security for costs on foot of the order of McGuinness J, being an equivalent amount to the sum to be advanced to the Respondent's solicitor. Leave was then given to Mr Bergin to come off record for the Respondent as funds had not been procured by the Respondent.

Odran Young was then called as a Valuer on behalf of the Respondent. He valued 57 G Square at £300,000 in September 1997 and 16 The L at £200,000. He said that he would now value 57 at £320,000. He thought that he still held the £7,500 paid as a deposit in respect of No 10 R Road.

Since the Respondent was now representing himself I invited Counsel for the Applicant to summarise the position so that the Respondent might consider overnight whether he wished to call further evidence or if he wished to give further evidence himself and as to what submissions he wished to make. The motion in respect of the application to have evidence taken in England was still before the court and Counsel indicated that the Respondent would have to decide whether to call Mr Deane, Mr Daly and Mr Ryan. Counsel indicated that if the Respondent did give evidence then he would be cross-examined. He had the option of calling further witnesses both on the motion and on the main action and he was entitled to make closing submissions in respect of both. The Respondent had been in the witness box under cross-examination when at the behest of Counsel for the Respondent the evidence in the main action had been interposed and accordingly if Mr OD were to return to the witness box there might be further cross-examination of him. Counsel confirmed that the Applicant was seeking the making of the order for the taking of evidence in London. The Respondent indicated that he wished to give evidence with regard to his conversation with the manager of the Ulster Bank. He said that he had pointed out to the manager that he held equitable deposits of deed but Mr Rowland was unwilling to pay out any more money in respect of solicitor's fees until the case was over. I adjourned the case overnight to enable the Respondent to consider his course of action. On Wednesday 16 February 2000 the Respondent said that he expected to have five or six witnesses present but unfortunately none had arrived. He said that he did not wish to give further evidence. The implications of this had been clearly explained to him. The Respondent reiterated that he did not wish to give any further evidence. He said he had already given lengthy evidence and was happy to take his chance with the evidence given. Counsel for the Applicant pointed out that the Respondent was actually under cross-examination on the motion and that he would be asking the court to draw inferences from the refusal to submit to further cross-examination. Counsel also made the point that the issues, which arose with regard to credibility in respect of the document, dated 21 February 1993, arose while the Respondent was legally represented.

The Applicant's solicitor was called to produce the sheets in relation to searches made by Ellis & Ellis.

Counsel for the Applicant then gave a brief synopsis of the submissions which he intended to make and requested the court to adjourn the matter until Friday, 18 February 2000 to enable the Respondent to prepare himself either to give evidence or to call witnesses or to close his case. He indicated no objection would be taken if the Respondent changed his mind and decided to give evidence. The gist of the Applicant's case was that the Respondent had lied repeatedly and had fabricated an extraordinary story about Deane and Daly and that he had set out deliberately to hide his assets from his wife, the court, the Revenue Commissioners and his own accountant. He had spent years constructing the fiction of Deane and Daly in order to hide his beneficial ownership of properties and that the only conclusion to be drawn from the note dated 24 February 1993 was that he had forged this to convey the false impression that he had given his wife a bank draft for £6,928.72. He submitted that the Respondent's story explaining Tutis Court was incredible and similarly his story about Deane and Daly and Philip Ryan being incontactable was unbelievable. The Respondent had sworn he had only collected rents for Mr Maguire and Dr Cogan. The evidence of Lorraine Kendellen was to the contrary and she gave categoric evidence that he called himself Michael Murray and was her landlord for over 6 months and collected the rent. He had never mentioned this property at 2 St Brendan's Road. Not only did the Respondent use the false name of John McMahon when he was applying to Cablelink but also the names of Deane and Daly were among his aliases. Conor Faughnan from Eircell had given evidence that the telephone number used by J O'D had been applied for in the name of John Daly with the address of 10 R Road.

The Applicant's contention was that serious difficulty came in their marriage about Christmas 1992 because of his liaison with EF. They had by that stage built up a large and valuable property portfolio and the Respondent systematically disposed of this portfolio to leave only 3 properties visible and admitted, namely 57 G Square, 10 R Road and 68 The L. He adopted the deliberate strategy of divesting himself of his assets and this was in accordance with the statement he had made on the telephone to his wife in 1998. As for the partnership of Deane and Daly this was a myth created by the Respondent. He had alleged that these were men whom he had known for 20 years and who had worked on nearly all of his investment properties and whom he met for lunch nearly every day. It was quite incredible that he had no way to contact them and that he knew nothing of their families and had no address or telephone number for them. Furthermore the Applicant in her 15 years of involvement in the building up of the property portfolio had never heard of the names of either Deane or Daly and had neither met nor spoken to either of them either in person or by telephone. Mr Maguire the solicitor who had acted in transaction between the Respondent and Messrs Deane and Daly had no attendance memo on either of them nor had he any fee note to either Deane or Daly. Pat O'Brien the architect said he had no independent knowledge of either Deane or Daly or as to whether they existed. Mr O'Brien had no letter on file, no attendance note on file and no fee note on file to either Deane or Daly. The Respondent maintained that Deane and Daly were his principal workmen and that they would source other trades for him when required. This was in conflict with the Applicant's evidence that tradesmen were contacted by small advertisements. In March 1999 the Respondent himself had given evidence that he used small ads to contact workmen. Indeed this was confirmed by telephone messages written on the back of the list of items stapled to the document dated 21 February 1993. He urged the court to find that the Respondent had substantial property assets, which he had hidden from his wife and the court and also much undisclosed income in the nature of rents which he had also deliberately concealed from the court. He said that he would be asking for orders for the transfer of property on the lines of the orders made in JD v DD [1997] 3 IR 64. He would be seeking the court to make an order that the alleged contract in relation to 10 R Road no longer existed but, if it did exist, that it should be set aside as having been made to a connected party so as to dispose of property at an undervalue. This is the contract which Mr Maguire, his solicitor, had said was dead. There was an issue as to who was the beneficial owner of this property since the contract in 1996 had been to Stratfield Ltd and this contract had been entered into after the plenary summons was issued in 1995. This property had been valued at £750,000 whereas the consideration in the alleged contract had only been £175,000. It was significant that Bernadette Murphy had given evidence in July 1999 about entering into negotiations with the Respondent and had been shown the name of the vendor in the contract as Stratfield Ltd which was a strong indication that there was a connection between the Respondent and Stratfield Ltd. Counsel for the Applicant said that he had outlined the submissions that he would be making so that the Respondent would have full knowledge of the case that was being made on behalf of the Applicant and would be given an opportunity to refute this either by evidence or by his submissions. Counsel went on to submit that the evidence of the Applicant was to the effect that she and her husband operated a joint venture in assembling and managing a property portfolio and that their intention was that this would be for them when they reached the age of 50 and this involved their contributions and future expectations. In his submission the Applicant had given careful and meticulous evidence with regard to her contributions by way of the giving of funds, the collection of rents, the collection and furnishing of materials, payments for materials and the making of curtains and the cleaning of flats. The Respondent submitted that he had disclosed his assets and that the assets should be divided. He resuscitated his allegation that he had paid for 84 G Avenue. The matter was adjourned to Friday, 18 February 2000. The Respondent read a statement by way of closing submission. Much of this was contentious and was not based on oral testimony and the Respondent was alerted to this. He concluded by asking the court to divide the assets in a fair manner.

Counsel for the Applicant in his closing submission said that this was a case that should have been settled and was not because the Respondent had persisted in denying that the Applicant had any participation in the property business and had deliberately hidden the property portfolio. He had denied having any other properties other than the three admitted properties and he had only admitted collecting rents for Mr Maguire and Dr Cogan. Apart from Mr Elliot every other witness had had to be compelled to come to court under subpoena. The issues for the court to decide were the question of whether a partnership had existed and then the extent of the assets. With regard to the partnership assets, I accept the Applicant's evidence in its entirety and where there is any conflict between her evidence and that of the Respondent I have no hesitation in preferring the Applicant's evidence. I have no doubt that the Respondent tried to deceive the court by uttering the forgery dated 24 February 1993 in respect of the bank draft. I accept the Applicant's evidence that she contributed considerably to the building up of the property portfolio and that she collected rents on the south side on Fridays and on the north side on Saturdays. I am sure that she did collect, store, count and bag the money. I believe that she also cleaned the rented properties and made curtains for them. I accept her evidence that at one stage there were 107 tenants. I also accept that she had considerable dealings with the workmen and that she met Martin Killeen many times and had transported him and paid him. I accept that particularly during the summer holidays she collected the materials as on the list, and I accept her evidence about the builder's providers from whom she collected the materials. I also accept that she worked in the evenings taking phone calls from tenants and workmen and that she was very much involved in the building up of the property assets. I accept her evidence that she never met Deane and Daly and I doubt that they exist; if they do exist, then they were used as human fronts by the Respondent. I believe that her returned cheques in relation to her contributions were among the documents in her stolen legal bag and it is significant that at least one set of the documents from this bag appeared in court and was put to her in cross-examination, namely the details of the accounts of her calls to the Respondent's mobile phone. I also accept the evidence of Nicola Martin that he himself collected the cheques for rent which were negotiated through no less than six different bank branches. After her attendance in court in March 1999 she received a telephone call from the Respondent who told her that the rent was to be paid and the cheque should be made out to A O'Connor and then somebody other than the Respondent collected the rent cheque.

The Respondent has suggested that 10 R Road is subject to contract. On 27 July 1999 Bernadette Murphy gave evidence that in 1996 she answered an ad in respect of 10 R Road and as far as she was concerned the Respondent was the vendor. She produced the contract which she had signed. The vendor under the contract was stated to be Stratfield Ltd of 10 R Road. The vendor failed to complete and in 1997 Ms Murphy called to No 10 and asked J O'D why he had not completed. He said that the High Court had issued an injunction against him and she asked him how could such an injunction prevent the company from selling. There is a clear inference that Stratfield Ltd was a vehicle of the defendant to conceal his ownership. Mr Maguire expressed the view that this contract was dead and that the papers had been returned.

As for the existence of Deane and Daly, on 21 January 2000 and on 27 January 2000 in his evidence on the motion the Respondent said that Deane and Daly did nearly all the work on his properties. However on 10 March 1999 the Respondent had explained the manner in which he contacted people to work on his houses. He said that he used small ads in the newspapers and this was how he had contacted Mr Doyle to do roofing work. The Applicant's evidence about his method confirmed that he used small ads to get contractors and one of her functions was to deal with workmen ringing up in response to the small ads. Her evidence that he obtained tradesmen through the ads in the "Evening Herald" was corroborated not only by the Respondent's evidence about this but also from the phone notes in the Respondent's handwriting taken on the back of the list of items associated with the note dated 24 February 1993 forged by the Respondent. I have come to the conclusion that all the property transactions involving Deane and Daly are more than likely to be fictitious and that the Respondent is in fact the beneficial owner of these properties.

As for the bank reference obtained from Mr Rowland, it will be recalled that the Respondent said that this was an old reference which he had got some six years before from a bank manager whose name he could not remember. I do not accept his evidence that this was for the purpose of checking out bank rates but rather I am sure that it was to enable him to use the reference outside Ireland and this is why the phrase appears:-

"a suitable person to open a bank account".

It is significant that he took this bank reference with him at a time when there was a Mareva injunction directed against him in personam. The bank reference was not six years old from a bank manager whose name he could not recall. It was a bank reference dated 26 May 1997 and from Mr Rowland whose name was well known to him.

As for the evidence with regard to Tutis Court in London there were basic contradictions in the evidence given by the Respondent. When he gave his evidence in chief he told the court that he and Philip Ryan went to see the property at Tutis Court. He actually confirmed that evidence in answer to questions from me. Subsequently under cross-examination as to where Tutis Court was, he said that he had never been to Tutis Court and did not know where it was. He could not even remember the name and address of the estate agent in whose office he had been. He was unable to remember the address or telephone number of Philip Ryan and he could not remember the name or address of the estate agent. It seems a little strange that he would put in a bid of £865,000 for Tutis Court without ever seeing the subject property or knowing its address. The intercepted telephone messages point to the Respondent being a customer of the AIB, in North Finchley particularly in view of the message with regard to the unpaid cheque. The message with regard to Tutis Court would indicate an involvement in property dealing in London.

As for the existence of Deane and Daly, the Respondent said that he had known Deane and Daly for twenty years and they worked on nearly all his properties. He has brought neither Philip Ryan nor Deane or Daly to court. His wife was able to obtain phone numbers for Philip Ryan very quickly. She had never heard the names of either Deane or Daly over the fifteen years that she was working with her husband on properties. Mr Maguire the solicitor who acted on the instructions of the Respondent for Deane and Daly said that he had never witnessed the signatures of Deane and Daly on memorials nor had he any correspondence on his file to or from Mr Deane or Mr Daly nor was there any fee note in respect of Mr Deane or Mr Daly. Likewise Mr O'Brien the Architect had no correspondence, attendance note or fee note involving Mr Deane or Mr Daly. Counsel for the Applicant suggested that the Respondent had concocted a deliberate plot to hide his assets and income from the court and from his wife and that he had tried to suborn the witness Pat O'Brien by addressing him with a description of Deane. He had also forged a document to deceive the court and there was a strong inference that he had removed his wife's "legal bag", in order to deprive her of evidence helpful to her case. There is much to support the reality of these suggestions.

It is clear that the Respondent wove a tangled web by operating under false names. I accept the evidence that one of the Respondent's mobile phone numbers was applied for in the name of John Daly of 10 R Road and that this application was made by the Respondent. Secondly, I also accept the Applicant's evidence that the Respondent used false names when people rang in answer to advertisements. Thirdly, the application to Cablelink was made in the handwriting of the Respondent using the name John McMahon. Fourthly, Lorraine Kendellen was a clear witness and identified the Respondent as being her landlord at 2 St B Road over a period of six months when she knew him as Michael Murray. I accept the evidence of Nicola Martin and Nora and Robert Fogarty that the Respondent was collecting rents from properties which he had said he had sold to Deane and Daly. I considered his story of his bartering properties with Deane and Daly in return for their work to be inherently unlikely and in this context I rely on the evidence of Stuart Gallagher, his tax accountant, who said that he was never told of such transactions and in all his experience he had never come across such a transaction where a party had transferred property for no financial consideration to an unconnected party. The pattern emerged that after 1993 the Respondent divested himself of nine properties to Deane and Daly with the same solicitor being involved. Mr Elliot values these properties at about £1,255,000. The pattern can be seen in the schedule M which is appended hereto. The purported sale of 86 R Road by J O'D in May 1996, the purported sale of 68 L Road by J O'D and P O'D on 31 May 1996 and the purported sale of 51 O Road, by J O'D in January 1997 all took place after the special summons had issued. There is also the question of how 10 R Road came into the purported ownership of Stratfield Ltd. Unfortunately as the Respondent refused to give evidence the court has been deprived of his assistance in learning about these transactions. From his evidence given on the motion it seems that these purchases were by Deane and Daly who were subcontractors who lived about a year ago in a flat in Cricklewood in London. Ostensibly in a year and a half between May 1994 and August 1995 these two subcontractors acquired properties worth £1,500,000 when taken at Mr Elliot's valuations. There is a link between the Respondent and each of these properties which can be seen as set out seriatim:

1. 51 H Cross Cottages; according to Mr Maguire who acted for both the Respondent as vendor and Mr Daly as purchaser the memorial in respect of 51 shows an address for Sean Daly as being 4 B Terrace. According to Mr Maguire 4 B Terrace was a property which the Respondent owned and sold in April 1994.

2. 54 H Cottages; Mr Maguire was again the solicitor acting for the purchaser Sean Daly and his address was given as 54 Harold's Cross Cottages.

3. 5 A Avenue; Mr O'Brien gave evidence that he submitted a planning application in the name of John Daly on the instructions of J O'D. Mr Maguire was again the solicitor and the date of the acquisition by John Daly would appear to be 24 April 1995.

4. 14 R Street; Mr O'Brien gave evidence that he submitted a planning application in the name of J O'D on the instructions of J O'D. A further link to J O'D is that Mr Ryan, the Dublin Corporation Planning Officer, gave evidence that the planning form had the telephone number 088-590231 being J O'D's phone number. Mr O'Brien said that J O'D told him that the planning application should have been in the name of John Deane but the name on the planning application was never changed. Mr Maguire was again the solicitor for the purchaser of the property in the name of Sean Deane.

5. Rear of 68 L Road; this property was apparently acquired by Sean Deane on 26 August 1995 from J O'D.

6. 64 St I Avenue; this was acquired by Sean Deane on 25 May 1994. Mr Ryan said that the planning application was in the name of Sean Deane but the telephone number given for the applicant was 088-590231 ie J O'D's mobile phone number (and being the same as given as the contact number in respect of 14 R Street.

7. 35 I Parade; in September 1994 this was apparently bought in the name of Sean Deane. Mr O'Brien said that he put in a planning application in the name of John Deane but the person who gave him instructions was J O'D.

8. 34 B Avenue; this garage at the rear was ostensibly transferred from J O'D to Sean Deane on 12 August 1995.

9. 38 E Street; this does not show up on the searches nor has any memorial been located but there is a planning application in respect of this property in the name of John Deane. Mrs Hannon in evidence, which I accept, said that J O'D was himself building an extension to the premises and told her that he had planning permission and that there was nothing she could do about this extension which was taking the sun and light from her premises.

10. 2 St B Road; Lorraine Kendellen gave clear evidence that she paid rent to Michael Murray whom she identified as J O'D. He clearly held himself out as the landlord and collected the rent although the precise nature of his ownership is unclear and he has declined to give evidence about this.

The Respondent said that he bartered three other properties to Deane and Daly in addition to 5 and 8 listed above.

1. Rear 86 R Road; J O'D said that he bartered this to Deane and Daly. Mr Elliot puts a valuation of £46,000 on this property.

2 Rear of 57 G Square; valued at £140,000 by Mr Elliot.

3. Rear of 26 V Street; valued at £60,000 by Mr Elliot. While no memorials were produced in respect of these properties, J O'D said himself that he also bartered them to Deane and Daly premises no's 11, 12 and 13 having a combined value of £246,000. I am inclined to think that in order to achieve an equality of value in the properties which have been traced and located, which are in all probability in the beneficial ownership of the Respondent, the court should also make a property adjustment order in respect of 51 and 54 H Cottages to the Applicant, these having a value respectively of £150,000 and £160,000 but I propose to hear submissions from the parties in respect of these orders.

Counsel for the Applicant urged that an order on the basis of solicitor and own client costs should be made in favour of the Applicant against the Respondent on the basis of the perfidy of the Respondent and secondly the lengthy cross-examination of the wife which was conducted at the behest of the Respondent with his subsequent failure to stand over his instructions to Counsel or to give evidence or to explain his property transactions. There was a tangled web of deception in this case and it required considerable intricate detective work to piece together the jigsaw of the Respondent's dissembling machinations. On reflection I think that the Applicant in this case is entitled to an order for costs on a solicitor and client basis against the Respondent. His tangled web of deceit made this a lengthy case and it took meticulous detective work on the part of the Applicant and her present solicitor and Counsel to piece together the jigsaw to expose the web of deception woven by the Respondent.

I came to these conclusions without taking into account the likelihood of the Respondent having assets overseas. I reserve judgment on Thursday, 24 February 2000.

To my surprise on Monday, 28 February 2000 Counsel on behalf of the Applicant applied to re-enter the matter and I gave liberty to serve short notice thereof on the Respondent for 11am on Wednesday, 1 March 2000. Leave was sought to re-enter the matter then on the basis that Mr Maguire had informed the Applicant's solicitor that he no longer held the title deeds and secondly that the Applicant wished to call evidence from the Trustee Savings Bank in Baggot Street in respect of the Respondent's financial affairs.

On Wednesday 1 March 2000 the Respondent appeared in person and said that he regarded this application as unfair as he was unrepresented.

Counsel and solicitor appeared for Mr Maguire who had informed the Applicant's solicitor that he no longer held the title deeds. It was pointed out by Counsel for the Applicant that the existing Mareva injunction covered the properties in the names of Deane and Daly if in fact the Respondent had a beneficial interest in them. Mr Maguire's files had been brought to court and in the afternoon Mr Maguire gave evidence to the effect that there were no separate files in respect of the garage properties and no separate files for the back gardens. Mr Maguire said that he was not saying that the back gardens were not sold but just that he had no evidence of it and that he understood them to have been sold. The copy or counterpart documents would have been passed on to solicitors for the purchasers of the main house. Counsel asked him about his own solicitor's file with his attendance notes and fee notes but Mr Maguire said that there were no separate files in respect of the garage properties or the back gardens. He had produced all the files he had. He was not saying the back gardens had not been sold; he just had no evidence of it. Any counterpart deeds would have been passed on to the Solicitors for the purchasers of the main house. Mr Maguire said that Mr OD, had recounted that he introduced the grantees Deane and Daly by bringing them in to his office but he could not recall them. There was no evidence that Deane or Daly ever signed a receipt for title deeds from his office. He was not in a position to say what person had collected the title deeds and he did not know where the title deeds of the properties in the names of Deane and Daly were now. The most recent note about the collection of deeds was in respect of 35 I Parade on 24 August 1995.

Counsel for the Applicant called Martin Huggard the present manager of the Trustee Savings Bank, Baggot Street branch. He was appointed manager in December 1998. His predecessor was the Respondent's brother who had been manager in Baggot Street for about ten years. He was transferred to the branch in Rathmines. Mr Huggard informed the court that he had brought with him documents in respect of J O'D. The first set of documents dealt with two closed deposit accounts and a mortgage account which was also closed. The first deposit account was numbered 990626 30019850 and was closed on 23 February 1996. The second was numbered 990604 30106993 and this account was also closed on 23 February 1996. There was also a mortgage loan account in the name of J O'D being account no 62650035025 which was closed on 22 February 1996. The first of these three accounts was in the name of S O'D (the Irish version of J O'D) c/o TSB Bank 2/4 Upper Baggot Street, Dublin 4; the second of these deposit accounts was in the name of S O'D (same Irish name) of 2 Sunbury Avenue, Mill Hill, London NWZ7E, England. The mortgage account was in the name of J O'D of 2/4 Upper Baggot Street, Dublin 4.

The next account produced by Mr Huggard was in the name of Mr Sean Deane 10 G Square, opened 21 December 1993, and closed 18 March 1998. The mandate gave the address as c/o TSB Baggot Street and gave Sean Deane's date of birth as 16 June 1954. The mandate was undated.

Mr Huggard then produced an analysis document which I have marked "A".

1. On 4 March 1997 there was a draft in the amount of £30,520 being draft no, 019036 payable to J O'D. This was funded by £16,220 withdrawal from Joe Smith 00166511 and £14,300 withdrawal from Sean Deane 00024431. This draft was presented on 12 March 1997 through Irish Nationwide (IOM) Ltd. I was informed that IOM stands for "Isle of Man". The account of Mr Joe Smith of 108 Rathmines Road, Dublin 6 was opened on 27 January 1995 and closed on 20 March 1998.

2. The second draft was of 7 April 1997 for the sum of £79,245 being draft no 019329 payable to Thomas Collins. This was funded by a withdrawal of £2,975 from Joe Smith 00166511, £1,750 withdrawal from Sean Deane 00024431 and £74,520 withdrawal from Thomas Collins 00096712. The draft was cashed on 12 May 1997 through TSB Baggot Street branch and subsequently lodged to the account of Thomas Collins 00096712, account no 9906260096712 in the name of Mr Thomas Collins of 108 Rathmines Road, Dublin 6. This was opened on 24 March 1995 and closed on 20 March 1998. The mandate was not witnessed or dated.

3. The third draft was dated 25 June 1997 in the amount of £86,313 being draft no 020059 payable to J O'D, this was funded by £5,480 withdrawal from Joe Smith 00166511, £1,800 withdrawal from Sean Deane 00024431, and £79,036 withdrawal from Thomas Collins 00096712. This draft was cashed on 20 August 1997 through TSB Baggot Street branch and subsequently funded another draft payable to Mr J O'D for £135,383.52.

4. Bank draft dated 19 August 1997 for £16,744 being draft no 020479 payable to Mr J O'D. It would seem that this draft was funded by a cash/cheque exchange. This draft was cashed on 20 August 1997 through TSB Baggot Street branch and subsequently funded another draft payable to Mr J O'D for £135,383.52.

5. On 20 August 1997 a draft for £135.383.52 being draft no 020488 was payable to Mr J O'D. This was funded by £16,744 cashed TSB draft issued 19 August 1997; £86,313 cashed TSB draft issued 25 June 1997; and £32,326.52 cashed Friends Provident cheque payable to J O'D. This draft was presented on 8 September 1997 through First National Building Society.

6. On 4 December 1997 a draft in the sum of £28,995.68 being draft no 021536 payable to J O'D. This was funded by £11,000 withdrawal from Joe Smith 00166511; £9,000 withdrawal from Sean Dean 00024431; £3,600 withdrawal from Thomas Collins 00096712; £5,395.68 appears to be paid in cash. This draft was presented on 6 August 1998 through First National Building Society.

7. On 18 March 1998 a draft in the amount of £21,222.14 being draft no 022479 was made payable to Mr Michael Malone. This was funded by £7,430 withdrawal from Joe Smith 00166511; £3,288 withdrawal from Sean Dean 00024431; £1,300 withdrawal from Thomas Collins 00096712; and £9,204 appears to have been paid in cash. This draft was presented on 6 August 1998 through First National Building Society.

These bank drafts make it clear that J O'D was ignoring the Mareva injunction which had been made by the court against him personally in respect of bank accounts. As for the bank accounts themselves, the pattern of activity on these accounts especially that in the name of Sean Dean and that in the name of Joe Smith indicate regular lodgements of the same amount. These periodic payments by way of their regularity and amounts look like rental income. There is a significant withdrawal on the account in the name of Mr Thomas Collins of 10 R Road on 25 August 1995 being a withdrawal of £59,000 in the name of J Daly.

After lunch Mr Huggard produced a TSB Foreign Exchange Money Transfer dated 19 August 1997 in the sum of GBP £216,916.17 with IR punt value of £240,297.08 to AIB GB, 241 High Road, Illsford, Essex; the beneficiary account was Radia & Co Solicitors account no 32059001. Attached to this was a manuscript note dated 7 August addressed to the Respondent's brother listing nine drafts enclosed and sterling £15,605. A draft for £86,313 was payable to J O'D, a draft for £32,328.02 was payable to J O'D a draft for £35,117.01 was payable to J O'D, a draft for £37,604.87 was payable to S O'D. (Irish version of a draft for £32,650.20 was payable to S O'D, a draft for £9,950 was payable to Thomas Collins, a draft for £85,000 was payable to Thomas Collins and an Irish Nationwide draft for £20,000 was payable to Jack OD, and there was a sterling demand draft payable to J O'D in the sum of £15,605.41.

The total withdrawals amount to about £470,000. The Respondent asked the manager whether if he had a friend and the friend asked the manager to make a draft payable to the Respondent would he do this. The manager replied that he would have to have instructions in writing and be happy about the transaction.

Michael Conlon, the head of personnel for TSB, gave evidence that he was aware of issues concerning the Respondent's brother and of an investigation having been carried out. A conclusion was arrived at that the Respondent's brother had breached the High Court Order and serious and drastic action was taken in respect of the former manager. The conclusion was reached that the accounts in the name of Thomas Collins, Joe Smith and Sean Deane were accounts in fictitious names. The bank was satisfied that the former manager was aware or should have been aware of the High Court Freezing Order which had been made on 21 March 1997. He referred to the transfer dated 19 August 1997 in respect of the sum of GBP £216,916.17 by way of foreign exchange money transfer. The former manager had been with the bank for about 23 years and stood dismissed pending an internal appeal. The Respondent declined to give evidence but said that he introduced a good number of clients to the TSB over a twenty-year period. Counsel for the Applicant made it clear that the evidence produced had only recently come to their knowledge.

The evidence of the bank officials is corroborative of the Respondent having acted under aliases for many years and confirms that he uses false names in respect of property and financial transactions. I am more than satisfied on the balance of probabilities that he operated three bank accounts in the false names of Thomas Collins, Sean Deane and Joe Smith in the TSB branch. The amount of the withdrawals total about £470,000. The evidence of the officials also establishes the certainty that the Respondent was involved in financial transactions both in the Isle of Man and in England. It is more than a reasonable inference to draw from the transfer of sterling to a solicitor in Essex that he was involved in some transaction there which was almost certainly a property transaction. This refutes the Respondent's sworn evidence that he was not involved in property transactions abroad. Furthermore the evidence establishes that the Respondent has been repeatedly, deliberately and flagrantly in breach of the order of the High Court. The existence of the three further accounts in the names of Collins, Smith and Deane make it clear from the large lodgements and withdrawals that the Respondent has considerably greater assets than appeared. Many of the lodgements to the accounts have the appearance of periodic rental lodgements. The evidence of the transfer of funds to England when taken in parallel together with the provenance of the drafts drawn on a range of financial institutions indicate that he may well have further assets in these institutions being Friends Provident, Eagle Star, Lifetime, Hibernian and Irish Nationwide as well as the Trustee Savings Bank.

Counsel urged the court to make an order for costs against the Respondent on the basis of solicitor and own client costs, submitting that the court should take the view that the Applicant should not suffer in any way in respect of costs which had been incurred due to the misconduct of the Respondent. He submitted that it would be unjust if the Respondent did not have to pay the costs on this basis as he had dissembled and had lied and had deceived the court and had forced the Applicant to prove each and every part of her case. The Respondent made a brief submission to the effect that he had given sworn evidence that he did not have property or bank accounts in the UK and that when buying and selling houses his practice was always to collect the title deeds and bring them into the bank as they always ask for security.

The applicant's personal life was committed outside of her teaching to the building up of the property portfolio with the expectation that at the age of 50 she would be able to retire and have a pleasant lifestyle. The collection of rent from 107 tenants and the managing and refurbishment of the properties would entail considerable work every week. Her uncontradicted evidence was that she led a quiet social life and she was thoroughly involved during holiday time and at the weekends in the renovation work as well as the collection of rent and cleaning of properties. With 9 or 10 investment properties her input would have been a necessary ingredient in the building up of the portfolio.

Relevant Law

The parties are agreed that there is a need for an order for judicial separation. I have no hesitation in making such an order because of the breakdown of this marriage and I take into account the deliberate concealment of assets and the carrying on of extra-marital sexual relationships by the husband as indicative of a complete breakdown of trust between the parties. In ID v DD [1997] 3 IR 64 there is a helpful review of the law and the relevant provisions governing the situation which arose in a rather milder case than the present. In JD McGuinnness J took into account two elements of the husband's conduct and made a substantial award in circumstances where the wife had worked in caring for the home and family and was in the main financially dependent on the husband. The husband was a prominent businessman and the family had ample financial resources. The wife had made no contribution to the business run by the husband. McGuinness J took into account that the husband had set out to make certain assets unavailable to his wife by setting up a family trust. This was in reality to make assets unavailable to his wife and also to put pressure on his wife as a claim by her, from the point of view of their children, would be reducing the trust assets available to them. McGuinness J took this into overall account although she refrained from making orders putting pressure on the trustees in the exercise of their discretion. Section 16 subs 2(a) of the Family Law Act, 1995 provides that in the making of financial orders and determining the provision of such orders, the court should in particular have regard to "the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future." McGuinness J held that the existence of the trusts and the comparative likelihood of either of the spouses gaining benefit from them, should be considered in relation to the court deciding whether to make a periodical or lump sum maintenance order, since section 16 subs 2 of the Family Law Act, 1995 directs the court to have regard to "other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future." During the course of the proceedings in JD, both parties had sworn affidavits of means but the affidavit of the husband was incomplete in several matters. It had failed to disclose that subsequent to the issuing of the proceedings, he had transferred certain monies to the Isle of Man for the purpose of establishing a trust. Section 35 subs 2(a) II of the Family Law Act 1995 empowers the court to order the setting aside of a disposition "if it is satisfied that the other spouse or other person has, with that intention, made a reviewable disposition and that, if the disposition were set aside, relief or different relief would be granted to the applicant . . .". She held that the Isle of Man trust was clearly a reviewable disposition under section 35 of the Family Law Act 1995. It was an effort by the Respondent to reduce the monies available for distribution to the applicant and, accordingly, an order pursuant to section 35 subs 2(a) II should be made setting aside this disposition. In the present case I have come to the conclusion that there was a deliberate concealment of the assets which the Respondent transferred into the names of Deane and Daly in order to hide them from his wife and the court.

While the desirability of finality was referred to in the Supreme Court decision in F v F (Judicial Separation) [1995] 2 IR 354, McGuinness J in JD reviews the provisions in the Family Law Act, 1995 and the Family Law (Divorce) Act, 1996 and concludes that the Oireachtas has made it clear that a "clean break" situation is not to be sought and that, if anything, financial finality is virtually to be prevented. Under both the Acts of 1995 and 1996 she said there appeared to be no limit on the number of occasions in which a property adjustment order may be sought and granted. Accordingly the court, in making virtually any order in regard to finance and property on the breakdown of a marriage, is faced with the situation where finality is not and never can be achieved. This also appears to mean that no agreement on property between the parties can be completely final since such finality would be contrary to the policy and provisions of the legislation. At page 89 she said:

"the statutory policy is, therefore, totally opposed to the concept of the "clean break". This policy is not only clear on the face of the statutes but was most widely discussed, referred to and advocated in the considerable debate that surrounded the enactment of divorce legislation. Such an approach unfortunately not only renders the court's task in making financial and property orders more difficult; it also I fear will create considerable difficulties for parties and their legal advisors when endeavouring to reach a settlement and avoid costly court proceedings."

She then discussed the opposite tendency in England towards attaining certainty and finality of litigation. In the context of maintenance at page 90 she discussed at what level should a lump sum payable to a wife be set in the context of a relatively wealthy family. "The Family Law Act, 1995, like the preceding Act of 1989, provides statutory guidelines to assist the court in exercising its undoubtedly wide discretion in making this type of order. Section 16 (which basically re-enacts s 20 of the Act of 1989) provides that in the making of financial orders and determining the provision of such orders, the court shall in particular have regard to the following matters:-

'(a) the income, earning capacity, property and other financial resources which each of the spouses concerned has or is likely to have in the foreseeable future,

(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future (whether in the case of the remarriage of the spouse or otherwise),

(c) the standard of living enjoyed by the family concerned before the proceedings were instituted or before the spouses separated, as the case may be,

(d) the age of each of the spouses and the length of time during which the spouses lived together,

(e) any physical or mental disability of either of the spouses,

(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution made by each of them to the income, earning capacity, property and financial resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family,

(g) the effect on the earning capacity of each of the spouses of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of that spouse having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family,

(h) any income or benefits to which either of the spouses is entitled by or under statute,

(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it,

(j) the accommodation needs of either of the spouses,

(k) the value to each of the spouses of any benefit (for example, a benefit under a pension scheme) which by reason of the decree of judicial separation concerned that spouse will forfeit the opportunity or possibility of acquiring,

(l) the rights of any person other than the spouses but including a person to whom either spouse is remarried.'

In the circumstances of JD McGuinness J decided that considerable reliance should be placed on a lump sum provision while the periodic maintenance should also play an important part. In the making of the necessary calculations full regard must also be paid to the guidelines set out in s 16 of the Act of 1995. In that case in the context she came to the conclusion that she did not think any injustice would be done by disregarding the adultery of the husband. In the present case, I propose to take into account the factor that the husband has to provide for the maintenance of his extra-marital child. In JD McGuinness J was able to deal with the setting up of the trust by making an order in that respect pursuant to s 35 setting aside the disposition to the Isle of Man Trust. In the present case Counsel for the Applicant urges that all the dispositions to Deane and Daly should be reviewable. He contends that the only persons who would be adversely affected are Deane and Daly, if they exist, and he submits that they are in fact an alias for the Respondent. In JD McGuinness J endeavoured through the making of a lump sum order to ensure that the Applicant would continue into the future to enjoy the lifestyle to which she was accustomed and accordingly considerable reliance should be placed on lump sum provision while periodic maintenance should also play an important part. In the present case the parties enjoyed and had the prospects and plans and portfolio for a pleasant lifestyle. The family home at M Road was in a good location and the house with gardens had considerable potential as a family home, although the Respondent's building materials and equipment may have detracted from its amenity. I accept that the affidavit of means put in by the Applicant would show that she is joint owner of 16 The L subject to a mortgage of £70,000 and has a Mercedes motor car with a 90D registration. She has a gross income as a teacher of £30,829 and she has the interest on money on deposit with AIB standing at £37,440. She has a pension as a primary teacher with 28 years service, 1/8 final salary per year or so. She has outgoings including £350 for the mortgage on a monthly basis of £1,853.79. I accept the figures which she has given. Unfortunately I do not accept the figures which have been given by the Respondent as it seems to me that he is the beneficial owner of a considerably greater number of properties than he is prepared to admit and is also more than likely to be enjoying the rents therefrom. It seems to me that it will be necessary to approach the orders to be made in this case by way of orders in respect of reviewable dispositions and by property adjustments.

In view of the conclusions reached by McGuinness J about the policy of allowing future reviews (which I propose to follow) in the circumstances of assets probably having been hidden abroad, it seems to me that an order should be made in respect of the request for the taking of evidence abroad so that the Applicant's advisors are enabled to pursue inquiry abroad with regard to the Respondent's assets. In the meantime it is desirable that as much certainty should be achieved as possible and accordingly I have come to the conclusion that the parties both contributed to a partnership with regard to the building up of the property portfolio and the justice of the situation requires that a half share of the properties known at present should be transferred into the Applicant's name. I propose to invite the assistance of the parties with regard to the appropriate division of the properties in the light of my conclusion. Rather than the making of an order for the payment of maintenance at this stage, there should be a property adjustment order which leaves the Applicant with a half share of the portfolio of properties. It seems to me that for convenience it would be preferable that she should have the admitted properties and 51 and 54 H Cottages but I will hear submissions on this aspect if necessary.

Overview

Around Christmas 1992 the Respondent's relationship with EF became known to the Applicant. The Respondent left their home at The L for some months in early 1993 although he had a key and returned at times. At the start of 1993 the Respondent had control of twelve properties. This would have been the critical time when he developed his plan to sell and conceal his control of nine properties which it would seem he sold for a sale value of about £1,078,000. In fact properties to the value of about £480,000 were sold after the special summons had issued. The pattern developed after 1993 that when the Respondent was selling Deane and Daly would appear as the owners of the properties. Mr Elliot valued these properties at £1,255,000. Mr Deane and Mr Daly, whom the Respondent described as a bricklayer and a carpenter who did subcontracts, started to appear as the named owners of properties worth over £1,500,000 either as transferees of properties from the Respondent or as owners in their own names or as applicants for planning permission, although in each case Mr O'Brien, the architect, said that his instructions came from the Respondent. Mr O'Brien made it clear that he would not recognise Mr Deane. This pattern of property transactions ties in with the conversation about June 1998 which the Respondent had on the telephone with his wife when he told her that two women were after his assets and that he had concealed them. On 19 October 1995 application was made to Eircell for a mobile telephone, the name of the applicant for the number 088-629590 was John Daly on the application form with an address at 10 R Road which was an admitted property of the Respondent. It is not contested that at a later stage this was the mobile telephone number used by the Respondent and this is a simple and clear indication that the Respondent is in fact John Daly. There is evidence that on several occasions the Respondent used this as his number. Firstly, for example, Nora Fogarty gave evidence on 27 July 1999 that in the rent book which she kept for about 15 years she recorded the rents which she paid to the Respondent and had his name and phone number as 087-629590. This piece of evidence that the Respondent was John Daly was not refuted. The Respondent swore repeatedly that he only collected rent for Mr Maguire and Dr Cogan. However while he gave evidence to the court that he had sold the premises at the rear of 86 R Road, it seems clear that he was still collecting rents from there. The gist of the Respondent's evidence was that he had difficulty in contacting Mr Deane and Mr Daly. One would have thought that if Mr Daly existed and had a mobile telephone number then the Respondent would have been able to telephone him. The Respondent's evidence about Deane and Daly was that they lived together and worked together and he appears to have conveyed property to them jointly. There is a strong inference to be drawn that the Respondent used the names of Deane and Daly. For instance, Pat O'Brien the architect was instructed by the Respondent to make planning permission applications and retention applications in these names. He also used their names to take conveyances of properties such as the six garages at the rear of premises which he said had been transactions done by way of barter in return for work done by Deane and Daly. It would seem that the same solicitor is alleged to have acted for both parties in these transactions and there is no written letter or attendance note to or from either Mr Deane or Mr Daly or any third party which is confirmatory of their existence. Stuart Gallagher, the Respondent's tax adviser, said that in his career he had never come across a conveyance to an unconnected party for no consideration. Furthermore he said that these property transactions were never mentioned to him. I think that the clear inference is that these transactions were fraudulent or non-existent and that Deane and Daly never actually existed, at least in the manifestation of beneficial owners of the properties at issue. Despite the Respondent's story of his long time friendship and working relationship with Messrs Deane, Daly and Ryan he has not produced any of them in court to substantiate his case about his business in Dublin or in London. In the years 1994, 1995 and 1996 the names of Deane and Daly appeared as the purchasers of properties to a value in excess of £1,000,000 in the names of Deane and Daly, all being properties in which the Respondent had been involved.

The Respondent never revealed his interest in 38 E Street. The applicant became aware of the use by the Respondent of the name Deane and located a planning application in respect of 38 E Street in the name of John Deane. This led her to Mrs Hannon the neighbour in No 36. On 27 July 1999 Mrs Hannon said that in 1994 there was a change of ownership of No 38 and she identified the Respondent as the person building an extension in the back garden. She questioned him about the extension and he said that his name was John and that he had planning permission and there was nothing she could do about this. The name on the planning file was John Deane of 38 E Street. She met this man John on a number of occasions and in 1998 when she spoke to him he said that he hoped to sell. Apart from the tenants she saw nobody else come to the house except for the Respondent. The Respondent had never revealed his involvement in this property to the Court and the planning application was made in the name of John Deane for a property of which the neighbour regarded the Respondent as the owner. He was himself working on the extension and there is a reasonable inference to be drawn that the Respondent was using the name of Deane and was the owner of 38 from 1994 to 1998.

As for 2 St B Road, again the Respondent never mentioned this property. On 18 January 2000 Lorraine Kendellen gave clear evidence that the Respondent using the name of Michael Murray was her landlord and he took a deposit and collected rent of £625 per month from her for a period of six months. She had contacted him by telephone and he came and fixed the lock. The Respondent has never refuted this evidence that he operated in respect of this property under another false name and was collecting rent and holding himself out to be the landlord of this property.

On 27 July 1999 Nicola Martin gave evidence that she worked for Hollybrook Ltd which rented the premises at the rear of G Square for £117 per month and the rent was collected from her every three months by the Respondent up to March 1999. There were two other curious features to this episode in that all cheques were made out at the request of the Respondent to Multi-Line Enterprises with an address at 68 L Road and subsequently after the case came to court, the Respondent ceased to collect the rent in person.

I have come to the conclusion that the Respondent has woven such a tangled web of deceit in this case that, rather than making an order for party and party costs or for solicitor and own client costs, the court in this particular instance should make an order for solicitor and client costs in favour of the Applicant against the Respondent. Many consultations more than the usual number would have been required in this case due to the devious dissembling by the Respondent.

I will hear further submissions in respect of the terms of the orders to be made to carry out the effect of the conclusions in this judgment