Murphy v Gilligan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Geoghegan |
| Judgment Date | 19 December 2008 |
| Neutral Citation | [2008] IESC 70 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 235 of |
| Date | 19 December 2008 |
[2008] IESC 70
THE SUPREME COURT
Murray C.J.
Geoghegan J.
Fennelly J.
Kearns J.
Macken J.
BETWEEN:
and
PROCEEDS OF CRIME (AMDT) ACT 2005
PROCEEDS OF CRIME ACT 1996 S3(1)
PROCEEDS OF CRIME ACT 1996 S3(3)
MCK (FJ) v C (F) & G (MJ) 2001 4 IR 521
MURPHY v GM 2001 4 IR 113
MCK (F) v F (A) 2002 1 IR 242
MURPHY v C (M) & ORS UNREP SUPREME KEANE 8.3.2004 2004/32/7509
PROCEEDS OF CRIME ACT 1996 S2(5)
ÉIRE CONTINENTAL TRADING CO v CLONMEL FOODS LTD 1955 IR 170
HENDERSON v HENDERSON 3 HARE 100
RSC O.3(21)(b)
RULES OF THE SUPERIOR COURTS (NO 2) (AMDT TO ORDER 3) 2001 SI 269/2001
PRACTICE AND PROCEDURE
Summons
Validity - Proceeds of crime - Commencement of proceedings under s 4 by way of special summons - Appeal to Supreme Court - Extension of time to appeal - Principles applicable - Whether final order contemplated under s 3 - Words and phrases - Meaning of "injustice" - Murphy v GM [2001] 4 IR 114 and F(McK) v AF (Statement of claim) [2002] 1 IR 242 and Murphy v MC [2004] IESC 70 (Unrep, SC, 8/3/2004) and Henderson v. Henderson (1843) 3 Hare 100 considered; Éire Continental Trading Co Ltd v Clonmel Foods Ltd [1955] IR 170 applied - Proceeds of Crime Act 1996 (No 30), ss 3 & 4 - Defendants' appeal dismissed (235/2006 - SC - 19/12/2008) [2008] IESC 70
Murphy v Gilligan
Facts: A number of appeals lay to the Supreme Court in respect of proceedings as to the freezing of assets pursuant to the Proceeds of Crime Act 1996, as amended. On of the appeals before the Court related to orders of the High Court refusing to discharge an order in the interests of justice pursuant to s.3(3) of the Act of 1996. In the event that the Court dismissed the appeals before it, the Court was asked to extend the time for appealing against another order of the High Court. The issue arose as to whether a plenary hearing was necessary so as to resist the order. The High Court had held that the relief to discharge the order for injustice related to the earlier order and not any injustice leading to the making up of the order. An order for receivership had not yet been made.
Held by the Supreme Court per Geoghegan J. (Murray CJ, Fennelly, Kearns & Macken JJ. concurring) that no injustice was done bringing the proceedings by special summons. The appeals would be dismissed and the motions refused.
Reporter: E.F.
Mr. Justice Geoghegan delivered the 19th day of December 2008
Judgment delivered by Geoghegan J. [Nem Diss]
This judgment will be dealing with a number of appeals and motions brought before this court by one or more of the above-named defendants. For the initial title of the judgment, I have adopted the title and record number of an appeal by Geraldine Gilligan, second-named defendant/appellant brought by notice of appeal dated the 3 rd July, 2006 against an order of the then President of the High Court, Finnegan P. I will, in due course, be indicating what the other appeals and motions relate to and I will list their formal titles in a schedule to the judgment. All the appeals and motions relate to proceedings brought by the then Chief Superintendent, Michael F. Murphy, the above-named plaintiff/respondent who was a "member" of An Garda Síochána within the meaning of the Proceeds of Crime Act, 1996. The above-named John Gilligan is the separated husband of the above-named Geraldine Gilligan and they are the parents of the above-named Darren Gilligan and Tracey Gilligan.
I have decided to structure this judgment in a somewhat unorthodox manner. I am doing so because I have come to the conclusion that it would be pointless to embark on these specific appeals and motions without first explaining in considerable detail this unusual Act - the Proceeds of Crime Act, 1996 and the case law in which it has been judicially interpreted by this court. I will start with the Act itself and the relevant sections.
The general scheme of the Proceeds of Crime Act, 1996 is that if a court is satisfied on the evidence tendered by the applicant that property over a particular value is the proceeds of crime, a freezing order may be made in respect of that property which may remain in force for at least seven years. After that period, an application may be made to the court that the property or part of it be transferred to the Minister for Finance or to such other person as the court may determine. That order is known as a "disposal order". As I will be demonstrating, various opportunities are given under the Act to enable a person to claim the frozen property or any part of it by establishing that it is not directly or indirectly the proceeds of crime. The statutory machinery relevant to these appeals and motions which was availed of is as follows:
First of all, there was an application ex parte by the Chief Superintendent being a person authorised by the Act to bring it for an order under that section which is described as an "interim order" prohibiting the persons named in the order which were the above-named defendants from disposing of or otherwise dealing with a certain specified property during the period of twenty-one days from the date of the making of the order. There is express provision in the section enabling an aggrieved party to have the order varied or discharged if it is shown that the property or a specified part of it is not the proceeds of crime or that the value does not exceed the threshold. The interim order was made by Costello P. on the 21 st November, 1996 and no application was brought within the twenty-one day period to have it discharged or varied.
The next stage in the procedure is that the same applicant makes an application for what is perhaps unfortunately though not inaccurately called an "interlocutory order". This application is an application under section 3 of the Act. Section 1 of the Act defines "interlocutory order" as meaning an order under section 3. I should perhaps mention that the Proceeds of Crime Act, 1996 has been amended by the Proceeds of Crime (Amendment) Act, 2005. The relevant parts of these proceedings pre-date that Act. As section 3 is a key part of the legislation and highly relevant to these proceedings, I think it important to cite in full almost the whole of the section. It reads as follows:
2 "3. - (1) Where, on application to it in that behalf by the applicant, it appears to the Court, on evidence tendered by the applicant, consisting of or including evidence admissible by virtue of section 8 -
(a) that a person is in possession or control of -
(i) specified property and that the property constitutes, directly or indirectly, proceeds of crime, or
(ii) specified property that was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and
(b) that the value of the property or, as the case may be, the total value of the property referred to in both subparagraphs (i) and (ii) of paragraph (a) is not less than £10,000,
the Court shall make an order ("an interlocutory order") prohibiting the respondent or any other specified person or any other person having notice of the order from disposing of or otherwise dealing with the whole or, if appropriate, a specified part of the property or diminishing its value, unless, it is shown to the satisfaction of the Court, on evidence tendered by the respondent or any other person -
(I) 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, or
(II) that the value of all the property to which the order would relate is less than £10,000:
Provided, however, that the Court shall not make the order if it is satisfied that there would be a serious risk of injustice.
(2) An interlocutory order -
(a) may contain such provisions, conditions and restrictions as the Court considers necessary or expedient, and
(b) shall provide for notice of it to be given to the respondent and any other person who appears to be or is affected by it unless the Court is satisfied that it is not reasonably possible to ascertain his, her or their whereabouts.
(3) Where an interlocutory order is in force, the Court, on application to it in that behalf at any time by the respondent or any other person claiming ownership of any of the property concerned, may, if it is shown to the satisfaction of the Court that the property or a specified part of it is property to which paragraph (I) of subsection (1) applies, or that the order causes any other injustice, discharge or, as may be appropriate, vary the order.
(4) The Court shall, on application to it in that behalf at any time by the applicant, discharge an interlocutory order.
(5) Subject to subsections (3) and (4 ), an interlocutory order shall continue in force until -
(a) the determination of an application for a disposal order in relation to the property concerned,
(b) the expiration of the ordinary time for bringing an appeal from that determination,
(c) if such an appeal is brought, it or...
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