High Court upholds disposal orders for property proceeds of crime, allowing partial restitution to one respondent.

Neutral Citation Number: [2011] IEHC 464

THE HIGH COURT

1996 10143 P

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN

MICHAEL F. MURPHY

APPLICANT

AND

JOHN GILLIGAN, GERALDINE GILLIGAN, DARREN GILLIGAN AND TRACEY GILLIGAN

RESPONDENTS

Judgment of Mr. Justice Feeney delivered on 20th day of December, 2011.

On the 27th January, 2011 this Court delivered judgment in four separate applications brought by each of the respondents pursuant

to s. 3(3) of the Proceeds of Crime Act 1996 (the Act of 1996). The judgment followed a full hearing including oral evidence, cross-

examination and legal argument. Each of the respondents was represented by counsel and contended that the property the subject

matter of the s. 3 order was not the proceeds of crime. It was claimed that none of the funds used to purchase the properties either

directly or indirectly constituted the proceeds of crime but rather that the funds had been legally obtained from lawful pursuits. As

part of the respondents’ s. 3(3) applications each of the respondents also argued that the s. 3 order should be discharged or varied,

insofar as such s. 3 order affected each individual respondent, in that the s. 3 order caused an injustice to the particular respondent.

The s. 3(3) hearing provided each of the respondents with an effective and full hearing to enable each of them to ventilate any

matters which they desired in respect of the s. 3 order and in support of their s. 3(3) applications.

The Supreme Court observed in the judgment of Geoghegan J. in Murphy v. Gilligan [2009] 2 I.R. 271 that it was open to the

respondents in these proceedings to bring either a s. 3(3) application or a s. 4 application and it was a matter for the respondents’

advisers as to which of those applications was to be viewed as providing the more appropriate remedy. That position was expressly

set out by Geoghegan J. in Murphy v. Gilligan (at p. 298, para. 50) where he stated:

“I have already touched on the issue of whether the substantive matters which the defendants want to litigate can

still be litigated. In my view, they can be and indeed that view has been expressed in previous judgments of this

court. Although anything I say in this regard may be obiter dicta, I am firmly of the view that an application under

s. 3(3) can still be brought and that that might well be a more appropriate remedy than raising the questions in the

s. 4 application but that is all a matter for the defendants' advisers.”

The defendants/respondents’ advisers chose to raise the substantive matters which they wished to litigate within s. 3(3) applications

and all of those matters were dealt with in the judgment delivered by this Court. The s. 4 application brought by the applicant was

before the Court at the same time as the s. 3(3) applications. The Court determined to proceed with the s. 3(3) applications and to

give judgment in those matters prior to hearing the s. 4 application. That approach was to ensure that any matters that the

respondents wanted to litigate in relation to the properties would be dealt with in a written s. 3(3) judgment. In the s. 3(3)

applications the respondents argued that the s. 3 order should be discharged or varied in that the property was not the proceeds of

crime or bought with the proceeds of crime and also that the s. 3 order should be discharged or varied as the order caused an

“injustice”.

The respondents had a choice of having the substantive matters which they desired to raise in respect of the s. 3 order argued either

by means of a s. 3(3) application or within the s. 4 application and each of the respondents proceeded on the basis that the more

appropriate way for them to proceed was to deal with those matters was by a s. 3(3) application. The s. 3(3) hearings provided a full

and effective forum to litigate the issues of the ownership of the properties and the source of funds used to purchase such properties

and also provided an opportunity to identify any injustice that resulted from the s. 3 order.

The s. 4 hearing took place in circumstances where the Court had already delivered its judgment in relation to the s. 3(3)

applications. The Court had in its judgment addressed the issue of ownership possession and control of the properties and the source

of funds used to purchase such properties and had also dealt with all matters raised by the respondents including any potential

injustice. The arguments in relation to the s. 4 disposal order were therefore limited by reason of the scope of the s. 3(3) hearing and

the conclusions and findings set out in the judgment of the 27th January, 2011. The limited nature of the arguments in relation to s. 4

arose in circumstances where each of the respondents had within their own s. 3(3) application claimed ownership of particular

properties and asserted that such properties were funded from assets which were not the proceeds of crime and such claims were

adjudicated upon by the Court. Each of the respondents had also, within the s. 3(3) applications, contended that the s. 3 order

caused an injustice and that matter was also dealt with in the judgment of the 27th January, 2011.

Section 4 of the Proceeds of Crime Act 1996, provides for the making of disposal orders and s. 4(1) provides that a disposal order

cannot be made unless there has been a s. 3 order in force for not less than seven years. The s. 3 order in this case was made in

1996 and seven years has elapsed. Section 4(2) provides:

“Subject to subsections (6) and (8), the Court shall make a disposal order in relation to any property the subject of

an application under subsection (1) unless it is shown to its satisfaction that that particular property does not

constitute, directly or indirectly, proceeds of crime and was not acquired, in whole or in part, with or in connection

with property that, directly or indirectly, constitutes proceeds of crime.”

The s. 3(3) judgment dealt with each of the properties the subject matter of the s. 3 order and the issue as to whether or not such

property constituted directly or indirectly the proceeds of crime or was acquired in whole or in part or in connection with property

that, directly or indirectly, constitutes the proceeds of crime. The findings in that judgment cannot be reviewed or revisited in this s.

4 judgment.

Sub-section (6) of s. 4 provides that before deciding whether to make a disposal order:

“. . . the Court shall give an opportunity to be heard by the Court and to show cause why the order should not be

made to any person claiming ownership of any of the property concerned.”

The s. 3(3) proceedings provided an opportunity to each of the respondents to claim “ownership”.

Section 4(8) provides:

“The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.”

The issue of a potential injustice being caused to any of the respondents was litigated within the s. 3(3) hearing. The Court has given

its judgment in relation to those claims of “injustice”.

Following the Court’s judgment in the s. 3(3) applications, each of the parties was provided with an opportunity to identify any

matter, which the Court had not already considered within the s. 3(3) proceedings, and to raise any matters that arose from the

judgment of the Court in those proceedings relevant to the s. 4 application.

Each of the parties was provided with an opportunity to make both written and oral submissions in relation to the s. 4 application.

Submissions were made on behalf of John Gilligan and it was contended that a disposal order under s. 4 should not be made “on

grounds that the reliefs sought in the proceedings are statute-barred”. That claim was based upon an argument that both the s. 3

order made against John Gilligan and the subsequent s. 4 application were statute-barred in that the reliefs claimed by the applicant

in the s. 4 application and granted in the s. 3 order constituted a penalty or a forfeiture pursuant to s. 11(7)(b) of the Statute of

Limitations 1957. The starting point for the argument made on behalf of John Gilligan was a statement made in the Supreme Court

judgment of Keane C. J. in Murphy v. G.M. [2001] 4 I.R. 113 at p. 137.

“The orders (in the Act of 1996) which the court is empowered to make, accordingly, under the Act, may equate to

the forfeiture of the property in question.”

It was urged that the High Court should follow that “dictum” and deem the applicant’s claim against John Gilligan as constituting an

action to recover a penalty or to forfeit his assets. It was claimed that if the Court accepted that the applicant’s claim against John

Gilligan constituted an action to recover a penalty or forfeiture, then a two year limitation period applied and the applicant’s claim was

statute-barred.

The argument made on behalf of John Gilligan based upon a dictum in the Supreme Court judgment in Murphy v. G.M. fails to have

regard to the full content of the judgment. The Supreme Court held in its judgment (at p. 153):

“The issue in the present case does not raise a challenge to a valid constitutional right of property. It concerns the

right of the State to take, or the right of a citizen to resist the State in taking, property which is proved on the

balance of probabilities to represent the proceeds of crime. In general such a forfeiture is not a punishment and its

operation does not require criminal procedures.”

Inherent within forfeiture is the concept of losing or giving up something as a penalty or of something being taken as a penalty or for

an offence. The taking of property under the Act of 1996 is not forfeiture in the true sense as there is no element of punishment and

the property is not “forfeited” as a result of any offence or penalty.

A s. 3 order, as explained below, does not constitute a forfeiture or penalty and has been so held by the Supreme Court. A s. 4

disposal order has yet to be considered by the Supreme Court in the context as to whether or not an order made under that section

constitutes a forfeiture or a penalty. The High Court has addressed the issue as to whether the Statute of Limitations 1957, s. 11(7)

applies to proceedings under the Act of 1996. That issue was addressed by Finnegan J. in the unreported judgment of McK v. H

delivered on the 12th April, 2002. In that judgment Finnegan J. addressed a claim that a s. 2 order should be discharged on the basis

that the alleged offences were committed more than two years prior to the commencement of the proceedings and accordingly the

proceedings were statute-barred by s. 11(7)(b) of the Statute of Limitations 1957. The judgment considered the terms of the

relevant section in the Statute of Limitations 1957 and examined the legislative history giving rise to that section and Finnegan J.

concluded (at p. 8 of the judgment) as follows:

“I am satisfied from an examination of the legislative history including an examination of the enactments that are

repealed by the Statute of Limitations 1957 in the Schedule Part II that the legislative intention behind section

11(7) of the Statute of Limitations 1957 is to re-enact the provisions of the Common Law Procedure Amendment

Act Ireland 1853 section 20 in relation to actions by common informers.”

Later in the judgment (also at p. 8) Finnegan J. concluded:

“Having regard to the foregoing I am satisfied that the provisions of the Statute of Limitations section 11(7) have

no application to actions taken under the Proceeds of Crime Act 1996.”

That finding was revisited by Finnegan P. in the unreported judgment of McK v. M and Ors. delivered on the 12th February, 2003. He

addressed the issue (at p. 10) of the judgment where he held:

“As the fourth issue of behalf of the Defendant it was argued that the decision in McKenna v. H High Court

Unreported 12th April 2002 should not be followed. I there held that the Statute of Limitations 1957 section 11(7)

(b) applied to actions by common informers or actions for penalties or forfeitures formerly lying at the suit of the

Crown and accordingly did not apply to the Proceeds of Crime Act 1996. In so holding I held that the following

passage from Limitation of Actions, Franks in (1959) is a correct statement of the law in Ireland –

‘The 1939 Act provides that an action to recover any penalty or forfeiture or sum by way of penalty or

forfeiture, recoverable by virtue of any enactment shall not be brought after the expiration of two years

from the date on which the cause of action accrued. Since the abolition of the common informer

provisions in 1951 this provision appears to have become redundant.’

As the Common Law Procedure Amendment Act Ireland 1853 section 20 is in identical terms to the Civil Procedure

Act 1833 section 3 in the United Kingdom and the Statute of Limitations 1957 section 11(7) is in identical terms to

the Limitation Act 1939 section 2(5) the same as the case in this jurisdiction. Counsel for the Defendant correctly

points out that the Common Law Procedure Amendment Act Ireland 1853 section 20 does not in its terms apply to

forfeiture but only to penalties.”

Finnegan P. went on to consider further authorities on pages 11, 12 and 13 of his judgment and concluded (at p. 13) as follows:

“Thus insofar as Counsel for the Defendant argued that there was at the commencement of the Statute of

Limitations 1957 no statute limiting the time within which a forfeiture action could be commenced in Ireland I am

satisfied that this is not the case. The premise for that argument is incorrect.”

Finnegan P. ultimately concluded (at p. 14) as follows:

“It is quite clear that the Act had very limited application – applying only to forfeiture for treason or felony and was

not of general application. Forfeiture consequent upon outlawry was expressly preserved and other forfeitures not

thereby affected. Actions by common informers whether for forfeiture or penalty were not abolished in the United

Kingdom until the Common Informers Act 1951 which Act also applies to the Crown acting as a common informer. In

these circumstances the premise upon the Defendant’s second submission is based is false.”

Finnegan P. concluded that the Statute of Limitations 1957 section 11(7) does not apply to proceedings under the Proceeds of Crime

Act. This Court follows and adopts that reasoning and conclusion and is satisfied for the reasons set out in the two judgments of

Finnegan P. that the section of the Statute of Limitations relied upon by John Gilligan, namely s. 11(7) of the Act does not apply to

proceedings under the Proceeds of Crime Act 1996.

The making of a disposal order is in no way dependent upon or results from a finding that a respondent should forfeit or give up

property as a result of a penalty or as a result of a particular offence. A s. 4 order under the Act of 1996 does not result in a

respondent losing or giving up property as a penalty or being subject to the imposition of a penalty for an offence, as the issue as to

whether or not an item of property is the proceeds of crime, or whether a disposal order should be made in respect of such property,

does not raise a challenge to a valid constitutional right of property. It follows that since this Court is satisfied that a disposal order

under s. 4 of the Act of 1996 is not an action to recover a penalty or forfeiture it could not in any event be affected by s. 11(7(b) of

the Statute of Limitations Act 1957. That would be the case even if the finding and conclusion of Finnegan P. was incorrect and the

section of Statute of Limitation 1957 was held to apply to the Act of 1996 and this Court had already held that it does not and has

adopted that finding as made by Finnegan P.

The Supreme Court in F. McK. v. G.W.D. (Proceeds of Crime outside State) [2004] 2 I.R. 470 considered a claim in that case that s.

11(7)(b) of the Statute of Limitations Act 1957, applied to an order pursuant to s. 3 of the Act of 1996. The Court held that an order

under s. 3 did not constitute a forfeiture. It did so on the basis that a s. 3 order was a freezing order which did not have the effect

of depriving the defendant of his property interest. Fennelly J. held (at p. 483, para. 40) as follows:

“The first issue then is whether an application pursuant to s. 3 of the Act of 1996 is an action for forfeiture so as to

benefit from the two year limitation period provided by s. 11(7)(b) of the Statute of Limitations 1957. The

defendant has not proposed any definition of forfeiture for the purposes of the section. He has relied on a

statement of Keane C.J., delivering the judgment of the court in Murphy v. G.M. [2001] 4 I.R. 113, at p.137:-

‘The orders which the court is empowered to make accordingly, under the Act, may equate to the

forfeiture of the property in question.’

This statement is referable to the Act as a whole and not specifically to s. 3. In the passages leading up to that

dictum, however, the court explained the place of a s. 3 order in the statutory scheme.”

The Supreme Court’s finding that the Statute of Limitations 1957 had no application to an order pursuant to s. 3 of the Act of 1996

did not consider or deal with a similar argument in respect of s. 4 but was limited to consideration of an order under s. 3 of the Act of

1996. Fennelly J. held (at p. 484, para. 42):

“The dictum cited by the defendant appears in the same paragraph and must be understood as referring to the

potential effect of the order under section 4. It is unnecessary, in the present case, to decide whether an order

under section 4 amounts to a forfeiture for the purposes of the Act of 1957. It is clear that the Court did not say,

in Murphy v. G.M. [2001] 4 I.R. 113, that a section 3 order effected a forfeiture. The plaintiff has sought to trace

the provenance of the section through the Common Law Procedures Acts and to explain their former relevance to

claims by common informers. It is unnecessary to enter into that subject-matter. It is sufficient to say that the

effect of section 3 is, as stated in Murphy v. G.M., to freeze the interest of the property owner but not to deprive

him of it. It allows the Court to make an order restraining the owner ‘from disposing of or otherwise dealing with the

whole or, if appropriate, a specified part of the property or diminishing its value’. Such an order is not, in any normal

sense, an order of forfeiture. It would do violence to the language of s.3 to hold that it effects a forfeiture. I would

reject this ground of appeal.”

An order under s.4 does not amount to a forfeiture or a penalty for the purposes of the Act of 1957. A disposal order under s. 4 is

part of a statutory scheme provided for within the Act. In the judgment of Geoghegan J. in Murphy v. Gilligan [2009] 2 I.R. 271 (at p.

298), he commented on how the Act of 1996 should be interpreted in the following way:

“This would seem a suitable and relevant point in the judgment to make some general comments about how this Act

should be interpreted. As I see it, it is a unique piece of legislation and this same view has been expressed, of

course, by Keane C.J., Fennelly J. and other judges in previous cases. That being so, I think that there is a danger

of driving up a blind alley, if in interpreting any particular section of this Act, attempts are made to find analogies in

other legislation.”

That approach informs this Court in relation to how it should view a s. 4 disposal order and interpreting the unique piece of legislation

which is the Act of 1996. This Court is satisfied that a s. 4 order is not in any normal sense an order of forfeiture as there is no

element of a respondent losing or giving up something as a penalty or of something being taken as a penalty for an offence. The grant

of a disposal order under s. 4 and the taking thereby by the State of property which has been proved on the balance of probabilities

to represent the proceeds of crime is not in the true or proper sense a penalty or forfeiture. The taking of property under the Act of

1996 is not and cannot be equated with a punishment and its operation does not require criminal procedures. A disposal order under

the s. 4 of the Act of 1996 is not an action for recovery of a penalty or forfeiture as provided for in the Statute of Limitations Act

1957.

Secondly, it is clear from the analysis of the scheme provided for in the Act of 1996 as carried out by the Supreme Court in Murphy v.

G.M. and a later consideration by the Supreme Court of the same Act in Murphy v. Gilligan [2009] 2 I.R. 271 that the effect of a s. 3

order is to freeze the interest of the property owner but not to deprive him of it. That remains the situation until a s. 4 disposal order

is commenced. Therefore, even if a s. 4 order was interpreted as being a forfeiture, it is only on the commencement of a s. 4

application that it could in any way be contended that an application for forfeiture commenced. The cause of action would not have

accrued until the s. 4 application was commenced. This s. 4 application could not have been commenced until seven years had

elapsed from the date of the making of the s. 3 order. The Supreme Court in Murphy v. G.M. identified that relief could not be granted

under s. 4 until the expiration of seven years from the date of the s. 3 order (see p. 128 of the judgment). It appears from the

judgment of the Supreme Court in that case that a s. 4 application can be brought by a separate set of proceedings after seven

years. The argument made by John Gilligan is that time under the Statute of Limitations Act 1957 and the cause of action commenced

when the property was purchased. That would result in a s. 4 application being statute-barred before it as being capable of being

commenced. The Court cannot interpret the Act of 1996 in such an illogical manner and render the provisions of s. 4 null. That would

be to disregard the provisions of the Act.

The Act expressly provides that a s. 3 order must be in existence for seven years before a s. 4 application can be commenced. It

follows that an action or application for a s. 4 order is a course of action which cannot accrue until seven years after the date when

a s. 3 order was made.

It was claimed on John Gilligan’s behalf that the evidence established that much or most of the property the subject matter of these

proceedings had been in the possession of the defendants for a period in excess of two years prior to the commencement of the

proceedings in 1996. It is contended on behalf of John Gilligan that the applicant’s claim against him and the other defendants

constitutes an action to recover a penalty or forfeiture and is covered by the Statute of Limitations Act 1957. The cause of action

accrued on the date when the property was purchased or obtained by the defendants. It was further contended that the Proceeds of

Crime Act 1996 prescribed a seven year period within which a freezing order must be in place pursuant to s. 3 of the Act of 1996,

prior to a disposal order under s. 4 being available, did not affect the date of accrual of the cause of action as it is merely a

procedural bar on an application being brought. John Gilligan sought to rely on the authority of Coburn v. Colledge [1987] 1 QB 702.

However, consideration of that authority identifies that a cause of action accrues when “every fact which it would be necessary for

the plaintiff to prove, if traversed, in order to support his right to the judgment of the court” is present. Applying that approach to

the Act of 1996 it is clear that one of the matters which the Criminal Assets Bureau would have to prove prior to making a s. 4

application was that a s. 3 had been in existence for at least seven years. It would not be possible to establish that proof until seven

years had elapsed from the making of the s. 3 order and this Court is satisfied that the earliest date upon which an applicant has a

right to the judgment of the Court in the making of a s. 4 order was seven years after the s. 3 order was made.

Even if the s. 4 order is covered by the provisions of s. 11(7)(b) of the Statute of Limitations Act 1957, and the application for s. 4

relief is deemed a penalty or forfeiture, this Court is satisfied that the cause of action entitling the making of a s. 4 application cannot

have accrued until seven years after the s. 3 order was made on the 16th July, 1996. The cause of action giving rise to the possibility

of a s. 4 application did not accrue until the 16th July, 2003 at the earliest and the s. 4 applications were commenced within two

years thereafter. It follows that, even if the provisions of the Statute of Limitations Act 1957 do apply to the making of a s. 4 order,

that the s. 4 application herein was made within two years from the date on which the cause of action accrued.

Tracey Gilligan made submissions to the Court in relation to the s. 4 application and identified that she had established in the s. 3(3)

hearing “that at least 18.69% of the value of the property, (namely, the house at 1, Willsbrook View, Lucan), was obtained with

monies which were not the proceeds of crime”. It was contended on her behalf that the application under s. 4 of the Act of 1996 was

premature in that the determination of the Court in the s. 3(3) hearing in effect varied or discharged the s. 3(1) order and that, as a

consequence, a “new interlocutory order comes into force” and accordingly the Court should not make a disposal order under s. 4 of

the Act until that new order has been in force for not less than seven years. The claim that an application under s. 4 of the Act is

premature ignores the wording of s. 4 which states that where an interlocutory order has been in force for not less than seven years

in relation to specified property, the Court on application to it on behalf of the applicant may make a disposal order under s. 4. What

triggers the entitlement to seek a disposal order is the passage of seven years from the making of an interlocutory order. The fact

that following the s. 3(3) hearing that the Court determined that the original s. 3 order should be varied in respect of her property

does not create a new interlocutory order. Section 3(3) allows and permits a s. 3 order to be discharged or varied. If it is discharged

there is no s. 3 order and no disposal order under s. 4 can be brought. If it is varied it is the original s. 3 or interlocutory order which

is varied and that order dates from the date upon which it was made. It is the existence of a s. 3 order for over seven years which

provides the entitlement to bring a s. 4 application and that application is properly before the Court.

It was further argued on behalf of Tracey Gilligan that in considering the s. 4 disposal order in respect of her house, the Court should

consider whether in the light of its finding in respect of that property in the s. 3(3) judgment it would be proportionate to make a

disposal order in respect of that property. Tracey Gilligan expressly relied on the statement of the Supreme Court in Murphy v. G.M.

that application of legislation such as the Proceeds of Crime Act 1996 (at p. 153):

“must be sensitive to the actual property and other rights of citizens but in principle and subject, no doubt, to

special problems which may arise in particular cases, the person in possession of the proceeds of crime can have no

constitutional grievance if deprived of their use.”

It was urged that in addressing the issue of injustice that the Court should take into account Tracey Gilligan’s personal circumstances

including but not limited to her financial circumstances, the fact that she is a single mother with two children, the fact that her eldest

child now resides in Ireland and her youngest was four years of age in May 2011. It was urged that Tracey Gilligan desired to return

to Ireland and had put the Bar which she operated in Spain up for sale and that she hoped to return to Ireland with her youngest

child so that that child could start school in Ireland. It was urged on Tracey Gilligan’s behalf that given the difficult personal and

financial circumstances in which she found herself that the Court should discharge the order made under s. 3(1) and allow her to

return to her family home. It was also urged that the Court should take into account that to force a sale on a co-owner of property

against whom no allegation of criminality is being made when there is no compelling reason why the applicant’s position could not be

protected by a charge on property and when the property market is depressed would amount to an injustice.

Whilst the Court addressed the issue of injustice within the s. 3(3) hearing, the Court must take into account all the circumstances

and one of those circumstances is the finding by the Court that approximately 20% of the capital cost of Tracey Gilligan’s house was

either directly or indirectly provided from funds which did not emanate from the proceeds of crime. The Court also has to take into

account the present personal circumstances of Tracey Gilligan including her desire to return to this country and to seek to have her

youngest child educated in Ireland. If she succeeded in returning to Ireland with her youngest child, then she would be close to her

elder daughter who is residing with her grandmother. It was also argued in the alternative, on behalf of Tracey Gilligan, that if the

Court was minded to make an order under s. 4 in respect of her house that the Court in exercising its discretion and ensuring that

justice is achieved that it would be “appropriate and reasonable for the Court to stay any sale on the said premises until Ms. Gilligan’s

children have reached the age of majority or have completed full-time education”. The period of the proposed stay would be for some

fourteen years or greater depending upon what type of education Tracey Gilligan’s youngest child pursued. It is the case that Tracey

Gilligan has indicated an intention to return to Ireland and to use the house as a family home. The Court must take due regard of such

stated intention but the current position is that Tracey Gilligan has not returned to Ireland and has not lived here for many years. The

house is not occupied by her and has been available to her since the making of the s. 3 order either as a residence or to be rented. It

is manifest that any disposal order in respect of that house must take account of the Court’s finding in the s. 3(3) hearing in relation

to the origin of funds in relation to the purchase and improvement of that property. However, the claim made on Tracey Gilligan’s

behalf that the finding of the Court in relation to that property and the origin of funds should allow or permit Tracey Gilligan to have

that property available to her as a residence either permanently or for at least fourteen years is untenable. The Court has regard to

Tracey Gilligan’s contribution to the purchase and improvement of the house but the Court must also have regard to the fact of its

finding that over 80% of funds used were the proceeds of crime. In endeavouring to exercise a balanced and proportionate

consideration of the issue of injustice, the Court must also take into account that the house has been available for use by Tracey

Gilligan from the date of its purchase. The legislation requires the Court to address any potential injustice and that task must be

carried out in such a manner as ensures that it is sensitive to the actual property and rights of citizens such as Tracey Gilligan. The

Court must ensure that no injustice is caused and therefore must apply a fair, balanced and even-handed approach. It is necessary

to balance the financial contribution made by or on behalf of Tracey Gilligan and her personal circumstances with the finding by the

Court that over 80% of the capital cost of the purchase of the house came from the proceeds of crime. In carrying out that balancing

exercise and in arriving at a fair and proportionate outcome, the Court should have regard to the fact that the house is not at this

point in time a family home, that the s. 3 order was made over fifteen years ago, that notwithstanding that 80% of the capital cost

of the house came from the proceeds of crime that Tracey Gilligan has had the exclusive use or benefit of the house for over fifteen

years and further that if a disposal order were not to be made with some temporal limit and if Tracey Gilligan was permitted to reside

or have use of the house without cost that she would in effect continue to benefit without charge from the proceeds of crime. The

Court also has to place in the balance the legitimate public interest which underpins the Proceeds of Crime Act which is society’s

interest in depriving persons of the benefit of the proceeds of crime. The balance must be exercised against a background that justice

must be viewed not only from the point of view of the litigant who has been identified or established as having an interest in the

property but also from the point of view of the State’s right to take property which is proved on the balance of probability to

represent the proceeds of crime.

In the light of the extended occupation and/or use which Tracey Gilligan has had of the house and of the fact that the proportion of

the capital cost of the purchase price of the house out of the proceeds of crime represented over 80% of such cost, the Court is

satisfied that on balance no injustice would be done to Tracey Gilligan if the property were to be sold and she were to receive 20% of

the net purchase price after deduction of expenses. Such a payment would represent, when taken together with the use and

occupation of which Tracey Gilligan has had of the house, a fair and proportionate outcome taking account of the Court’s judgment of

the 27th January, 2011.

The Court therefore proposes to make orders that will result in the sale of the property and that, on disposal of the property, that

20% of the net proceeds after the costs and expenses of sale have been deducted be paid to Tracey Gilligan.

Geraldine Gilligan swore an affidavit on the 18th March, 2011 and claimed that it would constitute a grave injustice if a s. 4 order was

granted in respect of her home at Mucklon, Enfield, County Kildare. She sought in the first instance to rely on the fact that a period

of over fourteen years has elapsed since the proceedings were initiated and also on the fact that the applicant in separate

proceedings has refused her application for social welfare payments which refusal she identified as being under appeal. Geraldine

Gilligan claimed that the applicant not only seeks to deprive her of her home but to render her penniless in circumstances where she is

innocent of any crime and she seeks from the Court that the Court should not make a s. 4 order for the disposal of her home as to do

so would be disproportionate. In oral argument before the Court it was also urged on behalf of Geraldine Gilligan that one of the

factors to take into account in addressing the issue of injustice under s. 4 was the fact that her granddaughter is now resident with

her and that her home is needed for that child as the child’s mother, Tracey Gilligan, continues to reside in Spain.

Geraldine Gilligan resides at the property in Mucklon, Enfield, County Kildare and that house together with the lands immediately

adjacent thereto was purchased in 1987. The Court has found in its s. 3(3) judgment that the entire of the funds used to purchase

that house represented the proceeds of crime. In considering the issue of injustice the Court takes into account all matters raised by

Geraldine Gilligan and in particular the fact that it is her home and the fact that she requires it not only for her use but also to provide

accommodation for her granddaughter and also the current financial circumstances of Geraldine Gilligan. The Court has already

addressed the issue of a serious risk of injustice in para. 50 of its judgment of the 27th January, 2011 and determined that

notwithstanding Geraldine Gilligan’s claim that the house is used by her as a home, the making of a s. 3(3) order would not give rise to

a serious injustice. The additional matter of the house being available as a residence for her granddaughter does not to any significant

extent alter the basis upon which the Court concluded that there would be no injustice to Geraldine Gilligan, in all the circumstances

in making a s. 3(3) order and that such order would not give rise to an injustice. The fact that the house is currently used as a home

and is also used to provide accommodation for her granddaughter is taken into account by this Court. However, in circumstances

where the issue of injustice has already been considered by the Court and where no significant additional matter has been identified

which would cause the Court to alter its determination in relation to the issue of injustice the Court will not alter its finding in relation

to injustice. In considering injustice in the context of s. 4 as opposed to the context of a s. 3(3) application, the Court must take into

account that the s. 4 order can give rise to an immediate and binding disposal order. That possibility is clearly of particular relevance

where the disposal order would relate to a property used as a home. However, that additional matter which requires to be taken into

account in considering injustice under s. 4 as opposed to injustice under s. 3(3) can be dealt with by means of a provision of a stay

on any disposal for a period of months.

Darren Gilligan swore an affidavit on the 16th March, 2011 in relation to the s. 4 order sought in respect of the property at 6, Weston

Green, Lucan, County Dublin. He identified that he is the registered co-owner of that property and that since in or about April 2008 to

the date of his affidavit his only source of income is unemployment assistance. He also identified that at the time when he was not in

receipt of social welfare payments and had no other means of support that he let out the property at 6, Weston Green and moved

into 13, Corduff Avenue. That property is also within these proceedings. The property at 6, Weston Green, Lucan, has been rented

out since January 2007 and the income generated from that property is paid to the receiver as per the Court order of 6th March,

2008. Darren Gilligan averred that he has nowhere else to live other than at 13, Corduff Avenue, and that he is unable to afford any

other form of accommodation. The circumstances identified by Darren Gilligan in his affidavit are the same as those as existed when

the Court considered the issue of injustice under s. 3(3). The Court has already determined that there would be no injustice in making

a s. 3(3) order in respect of both those properties, that is the property at 13, Corduff Avenue and at 6, Weston Green. Both those

properties were purchased with funds which came from the proceeds of crime and the reasons which led the Court to determine that

it was appropriate to make a s. 3(3) order in respect of both properties remain unchanged. The only additional matter which arises at

the s. 4 hearing is that an order for the disposal of the property could have the immediate effect of rendering Darren Gilligan without

accommodation. That matter can be taken into account and addressed in a proportionate manner by means of a stay.

Section 4 of the 1996 Act provides for the making of a disposal order where seven years have elapsed since the s. 3 order. Section

4(2) provides that subject to subs. (6) and subs. (8), the Court shall make a disposal order. Section 4(6) applies to Tracey Gilligan’s

house and the Court will make a disposal order which takes into account the finding that some 20% of the capital cost of the

property was contributed by or on behalf of Tracey Gilligan. In respect of the other properties the Court in its judgment of 27th

January, 2011 held that the entire purchase price of those properties came from the proceeds of crime. The Court has considered the

provisions of s. 4(8) and the issue of “injustice”. “Injustice” was considered by the Court in its judgment of the 27th January, 2011.

The Court in this judgment has dealt with the additional matters which were raised at the s. 4 hearing. Section 4(2) uses the word

“shall” and it follows that the Court will make a disposal order where the requirements of s. 4 are met absent the Court being satisfied

that the properties were not purchased wholly or in part with the proceeds of crime or that a disposal order would create a serious

risk of injustice.

The Court will make a disposal order in respect of all of the properties set out at paragraph 3 of the judgment of 27th January, 2011

but will direct in relation to the property at 1, Willsbrook View, Lucan, County Dublin that the property should be sold and that 20% of

the net proceeds of the purchase price obtained, after the deduction of costs and expenses, should be paid to Tracey Gilligan and

that a receiver should be appointed for the purposes of arranging and completing such sale and that the remaining 80% of the net

proceeds of sale obtained should be transferred to the Minister for Public Expenditure and Reform. The Court will place a stay on that

disposal order up to 31st May, 2012. In respect of all the other properties the Court shall make an order that those properties shall

stand transferred to the Minister for Public Expenditure and Reform but a stay is to be placed on the disposal order in respect of two

properties, namely, Mucklon, Enfield, County Kildare together with the lands immediately adjacent thereto which was purchased in

1987 until the 31st May, 2012, and 13, Corduff Avenue, Blanchardstown, so that orders do not come into effect until 31st May, 2011

for the purpose of allowing Darren Gilligan and Geraldine Gilligan seek alternative accommodation. The Court will hear the parties on

the terms of the orders to be made.