Court date set for Kennedy’s challenge of freezing order

The High Court will in June hear a challenge by a company of businessman Jim Kennedy against a freezing order on land which the Criminal Assets Bureau (CAB) says was rezoned as a result of corruption.

Jackson Way Properties Ltd (JWPL), of which Mr Kennedy is a director, claims CAB wrongfully obtained the freezing order on 17.6 acres in Carrickmines, Co Dublin, in 2006. It claims it has suffered loss and damage as a result and that the order, which prohibited the disposal of the land by JWPL, was a breach of its constitutional and European Convention rights.

CAB denies the claims.

The case was before Mr Justice George Birmingham yesterday to deal with discovery issues in advance of the hearing. The judge said the case should be mentioned again a few weeks before the hearing date, June 18, to ensure that it would be going ahead on that day.

On October 19, 2010, CAB brought a High Court action against JWPL seeking to have certain lands owned by the company at Carrickmines forfeited to the State on grounds of corrupt enrichment arising out of rezoning decisions.

The case opened before the late Mr Justice Kevin Feeney but it was put on hold when, that same day, Mr Kennedy was arrested and later charged with bribing councillors for rezoning votes.

His criminal trial on those charges, along with that of a number of county councillors, went ahead last July but was halted on its 13th day when the chief prosecution witness, Frank Dunlop, became seriously ill. Charges against Mr Kennedy and the councillors were withdrawn by the State.

In the meantime, in March 2011, JWPL brought its own proceedings seeking an inquiry as to damages it allegedly suffered as a result of the freezing order on part of the Carrickmines lands.

JWPL claimed CAB knew, or ought to have known when it brought the freezing order application in July 2006, that CAB could not make or maintain any claim for a freezing order in relation to a 17.6-acre parcel of the total 108 acres owned by JWPL in Carrickmines. CAB contended the rezoning of the 17.6 acres from agricultural to industrial use in July 1998 was secured by corruption.

The 108 acres were divided into four parcels, including the 17.6 acres, to the north-east and south-east of the M50.

One of the plots, 68 acres, was the subject of a failed rezoning motion and it remains agricultural. Another 20-acre plot was compulsorily purchased from JWPL by the local council to provide land for the motorway.

Mr Justice Birmingham, in a judgment last January on the JWPL discovery application, said JWPL was awarded almost €13m in compensation for the compulsory purchase. However, this has not yet been paid because, in November 2010, the High Court varied the freezing order on the Carrickmines lands so it would only apply to the 17.6 acres.

Mr Justice Birmingham said Mr Kennedy gave undertakings, in November 2010, to the court in relation to the €13m award which was an effective security swap between CAB and JWPL pending the outcome of the proceedings.

CAB says JWPL’s proceedings are misconceived and/or frivolous or vexatious. They disclose no reasonable cause of action and constitute an abuse of process, it is claimed.

CAB also opposed JWPL’s application for discovery of certain documents particularly as extensive disclosure took place in the context of the criminal case against Mr Kennedy. Almost all documentation sought would be privileged, it was claimed.

In January, Mr Justice Birmingham ordered CAB to make limited discovery of documentation.