High Court of Ireland Decisions

Judgment Title: Murphy -v- Gilligan & Ors

Neutral Citation: [2011] IEHC 464


High Court Record Number: 1996 10143 P

Date of Delivery: 20/12/2011

Court: High Court

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 IR 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 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.”

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.”

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.”

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 IR 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.”

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.”

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.”

“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.”

“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.”

“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.”

“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.”

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 IR 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 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 IR 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.”

“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.”

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 IR 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.”

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.