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Judgment
Title: | Murphy & anor -v- Gilligan |
Neutral Citation: | [2017] IESC 3 |
Supreme Court Record Number: | 275 & 280/12, 327/08, 278 & 279/12, 86/06, 71/06, 235/06, 276 & 277/12, 320/08, 295 & 296/12, 293/08, 129/06, 172/08 |
High Court Record Number: | 1996 10143 P / 2006 1118 P / 2005 2628 P |
Date of Delivery: | 01/02/2017 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., McKechnie J., MacMenamin J., Laffoy J., Dunne J. |
Judgment by: | Dunne J. |
Status: | Approved |
Result: | Appeal dismissed |
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THE SUPREME COURT
SC No. 172/98
SC No. 129/06
SC No. 293/08
SC Nos. 295 & 296/12
SC No. 320/08
SC No. 276 & 277/12
SC No. 235/06
SC No. 71/06
SC No. 86/06
SC Nos. 278 & 279/12
SC No. 327/08
SC Nos. 275 & 280/12
Denham C.J.
McKechnie J.
MacMenamin J.
Laffoy J.
Dunne J.IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996 AND 2005
BETWEEN
MICHAEL F. MURPHY
PLAINTIFF/RESPONDENT AND
JOHN GILLIGAN, GERALDINE GILLIGAN, DARREN GILLIGAN AND TREACY GILLIGAN DEFENDANTS/APPELLANTS AND
IN THE MATTER OF AN APPLICATION UNDER THE PROCEEDS OF CRIME ACT, 1996
2004 No. 536SP
BETWEEN
FELIX J. McKENNA
PLAINTIFF/RESPONDENT FIRST NAMED DEFENDANT/APPELLANT GERALDINE GILLIGAN, DARREN GILLIGAN AND TREACY GILLIGAN DEFENDANTS
Judgment of Ms. Justice Dunne delivered the 1st day of February, 2017
There are a number of appeals before this Court brought by the defendants/appellants in the proceedings. I will refer to them collectively as “the Gilligans” but if the context demands, I will refer to them individually. As is evident from the title of these proceedings, the proceedings arise from a series of applications made by the plaintiff/respondent, the then Chief Superintendent, Michael F. Murphy, who, for ease of reference, will be referred to as Mr. Murphy or, where more appropriate to describe the body to which he belonged, as the Criminal Assets Bureau (“CAB”).
The Gilligans have appealed three judgments of the High Court (Feeney J.), the first of which was delivered on the 27th January, 2011 and two further judgments delivered on the 20th December, 2011. The judgment of the 27th January 2011 ([2011] IEHC 62) concerned applications brought by each of the Gilligans pursuant to s. 3(3) of the Proceeds of Crime Act 1996 (hereinafter referred to as the Act of 1996). The next judgment of the 20th December 2011 ([2011] IEHC 464) was in respect of s. 4 applications brought by CAB in respect of properties owned by the Gilligans and the final judgment related to a challenge to the Act of 1996 on grounds based on the European Convention on Human Rights in proceedings brought by Geraldine Gilligan and John Gilligan. It is relevant to point out that John Gilligan previously brought proceedings challenging the constitutionality of the Act of 1996. Those proceedings were heard jointly with other proceedings and were the subject of an appeal to the Supreme Court which is reported as Murphy v. G.M. [2001] 4 IR 113. Subsequently, a further challenge was brought to the Act of 1996 by Geraldine Gilligan and John Gilligan challenging its validity and seeking to have declarations made that all or parts of s. 3 of the Act of 1996 were repugnant to the Constitution together with a claim that the Act was incompatible with the European Convention on Human Rights within the meaning of s. 5 of the European Convention on Human Rights Act 2003. Given that it was accepted by all parties concerned that the issues as to constitutionality had been previously determined by the Supreme Court those proceedings proceeded solely on the basis of the arguments in relation to the Convention claims. Feeney J., in his second judgment of the 20th December 2011 ([2011] IEHC 465), dismissed the claims of John and Geraldine Gilligan relating to the Convention.
The final matters before this Court relate to motions issued on behalf of the Gilligans in which they have sought to set aside a judgment of this Court delivered on 19th December, 2008 ([2009] 2 IR 271) which was delivered at an earlier stage of these proceedings and I will refer to those motions collectively as the “Greendale” motions.
At the heart of this appeal is the contention on behalf of the Gilligans that there was no trial of the issue as to whether or not the property at issue in these proceedings was acquired directly or indirectly with the proceeds of crime when the operative s. 3 order was made freezing the property in the hands of the Gilligans pursuant to the Act of 1996. As a result, it is contended that there was no valid s. 3 order; thus, the hearing before Feeney J. was without jurisdiction and could not stand and ultimately no disposal order under the Act of 1996 could be made in respect of the property.
The judgment of Feeney J. of the 27th January, 2011
I propose to consider the Greendale motions to begin with. In order to understand the basis upon which the Greendale motions have been brought it is necessary to look briefly at the judgment of Feeney J. delivered on the 27th January, 2011 which dealt with the four separate applications brought by the Gilligans pursuant to s. 3(3) of the Act of 1996. As was pointed out by Feeney J. at para. 1.3 of his judgment:
“Applications under s. 3(3) of the [Act of 1996] can be taken by persons affected by a s. 3 order where a s. 3 order is in force.”
He relied on the decision of the Supreme Court at an earlier stage in these proceedings in the case of Murphy v. Gilligan [2009] 2 IR 271. In particular he made reference at para. 1.3 of his judgment as follows:
“Applications under s. 3(3) of the [Act of 1996] can be taken by persons affected by a s. 3 order where a s. 3 order is in force. As was set out in the judgment of Geoghegan J. in the recent Supreme Court decision (at 294):
‘It is not in dispute and cannot be in dispute that an operative order under s. 3(1) was and remains in force.’”
Feeney J. went on, at para. 1.4, to say:
“It is the existence of that operative order which provides this Court with jurisdiction to consider an application under s. 3(3) which is predicated upon such application being taken in circumstances where an interlocutory order, that is a s. 3(1) order, is in force. That position was identified in the judgment of Geoghegan J. in the Supreme Court when, in obiter dicta (at 298), Geoghegan J. stated:
“… 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.’”
Thus, it can be seen that the jurisdiction of the High Court to deal with an application pursuant to s. 3(3) of the Act of 1996 was predicated on there being in place an order pursuant to s. 3(1) of the Act of 1996. Absent such a valid order, no proceedings could be heard pursuant to s. 3(3) of the Act of 1996. The Gilligans having failed to obtain an order pursuant to s. 3(3) of the Act of 1996, it followed that CAB could then proceed to look for an order for the forfeiture of assets pursuant to s. 4 of the Act of 1996. At the hearing before this Court, it was conceded on behalf of the Gilligans that unless it can be demonstrated on their behalf that the operative s. 3(1) order under the Act of 1996 is invalid, there will be an insurmountable hurdle to their appeals from the orders of Feeney J., in particular that of the order made on 27th January, 2011. In order to displace the s. 3(1) order it will be necessary to demonstrate that the decision of the Supreme Court in 2008 should be rescinded or varied.
It goes without saying that a final judgment or order of the Supreme Court is not easily rescinded or varied. The decision of the Supreme Court in Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514 set out the position as to setting aside a judgment of the Supreme Court. Thus, the Gilligans have brought a series of “Greendale” motions seeking to rescind the final judgment of the Supreme Court being the judgment of the Supreme Court reported at [2009] 2 IR 271.
In order to assist in understanding the arguments that have been made on the appeals before this Court, it would be helpful in the first instance to set out the relevant provisions of the Act of 1996:
Section 2
“2(1) Where it is shown to the satisfaction of the Court on application to it ex parte in that behalf by a member or an authorised officer -
(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 may make an order (‘an interim order’) prohibiting the person 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 during the period of 21 days from the date of the making of the order.
(2) An interim 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 interim order is in force, the Court, on application to it in that behalf 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 -
(a) the property concerned or a part of it is not property to which subparagraph (i) or (ii) of subsection (1)(a) applies, or
(b) the value of the property to which those subparagraphs apply is less than £10,000,
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 interim order.
(5) Subject to subsections (3) and (4), an interim order shall continue in force until the expiration of the period of 21 days from the date of its making and shall then lapse unless an application for the making of an interlocutory order in respect of any of the property concerned is brought during that period and, if such an application is brought, the interim order shall lapse upon -
(a) the determination of the application,
(b) the expiration of the ordinary time for bringing an appeal from the determination,
(c) if such an appeal is brought, the determination or abandonment of it or of any further appeal or the expiration of the ordinary time for bringing any further appeal,
whichever is the latest.
(6) Notice of an application under this section shall be given -
(a) in case the application is under subsection (3), by the respondent or other person making the application to the applicant,
(b) in case the application is under subsection (4), by the applicant to the respondent unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts,
and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.
Section 3
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 -
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 any further appeal is determined or abandoned or the ordinary time for bringing any further appeal has expired,
whichever is the latest, and shall then lapse.
(6) Notice of an application under this section shall be given -
(a) in case the application is under subsection (1) or (4), by the applicant to the respondent, unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts,
(b) in case the application is under subsection (3), by the respondent or other person making the application to the applicant,
and, in either case, to any other person in relation to whom the Court directs that notice of the application be given to him or her.
(7) Where a forfeiture order, or a confiscation order, under the Criminal Justice Act, 1994, or a forfeiture order under the Misuse of Drugs Act, 1977, relates to any property that is the subject of an interim order, or an interlocutory order, that is in force, (‘the specified property’), the interim order or, as the case may be, the interlocutory order shall -
(a) if it relates only to the specified property, stand discharged, and
(b) if it relates also to other property, stand varied by the exclusion from it of the specified property.
Section 4
(1) Subject to subsection (2), where an interlocutory order has been in force for not less than 7 years in relation to specified property, the Court, on application to it in that behalf by the applicant, may make an order (‘a disposal order’) directing that the whole or, if appropriate, a specified part of the property be transferred, subject to such terms and conditions as the Court may specify, to the Minister or to such other person as the Court may determine.
(2) 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.
(3) The applicant shall give notice to the respondent (unless the Court is satisfied that it is not reasonably possible to ascertain his or her whereabouts), and to such other (if any) persons as the Court may direct of an application under this section.
(4) A disposal order shall operate to deprive the respondent of his or her rights (if any) in or to the property to which it relates and, upon the making of the order, the property shall stand transferred to the Minister or other person to whom it relates.
(5) The Minister may sell or otherwise dispose of any property transferred to him or her under this section, and any proceeds of such a disposition and any moneys transferred to him or her under this section shall be paid into or disposed of for the benefit of the Exchequer by the Minister.
(6) In proceedings under subsection (1), 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.
(7) The Court, if it considers it appropriate to do so in the interests of justice, on the application of the respondent or, if the whereabouts of the respondent cannot be ascertained, on its own initiative, may adjourn the hearing of an application under subsection (1) for such period not exceeding 2 years as it considers reasonable.
(8) The Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice.
Section 8
(1) Where a member or an authorised officer states -
(a) in proceedings under section 2 , on affidavit or, if the Court so directs, in oral evidence, or
(b) in proceedings under section 3 , in oral evidence,
that he or she believes either or both of the following, that is to say:
(i) that the respondent is in possession or control of specified property and that the property constitutes, directly or indirectly, proceeds of crime,
(ii) that the respondent is in possession of or control of specified property and that the property was acquired, in whole or in part, with or in connection with property that, directly or indirectly, constitutes proceeds of crime,
and that the value of the property or, as the case may be, the total value of the property referred to in both paragraphs (i) and (ii) is not less than £10,000, then, if the Court is satisfied that there are reasonable grounds for the belief aforesaid, the statement shall be evidence of the matter referred to in paragraph (i) or in paragraph (ii) or in both, as may be appropriate, and of the value of the property.
(2) The standard of proof required to determine any question arising under this Act shall be that applicable to civil proceedings.
(3) Proceedings under this Act in relation to an interim order shall be heard otherwise than in public and any other proceedings under this Act may, if the respondent or any other party to the proceedings (other than the applicant) so requests and the Court considers it proper, be heard otherwise than in public.
(4) The Court may, if it considers it appropriate to do so, prohibit the publication of such information as it may determine in relation to proceedings under this Act, including information in relation to applications for, the making or refusal of and the contents of orders under this Act and the persons to whom they relate.
(5) Production to the Court in proceedings under this Act of a document purporting to authorise a person, who is described therein as an officer of the Revenue Commissioners, to perform the functions conferred on authorised officers by this Act and to be signed by a Revenue Commissioner shall be evidence that the person is an authorised officer.”
The provisions of the Act of 1996 set out above are set out in the form in which the Act was originally enacted. There have been amendments to the Act since 1996 which are not material to the arguments before the Court. Finally I should make brief reference to s. 6 of the Act which allows applications to be made to Court by a respondent for reasonable living and other necessary expenses (including legal expenses in or in relation to proceedings under this Act incurred or to be incurred by or in respect of the respondent and his or her dependants). The Court may make an order including such conditions and restrictions as considered necessary. When referring to a s. 3 order in the course of this judgment, I am referring to an order pursuant to s. 3 (1). I have used this term as that is the term used to describe such orders in many of the judgments and affidavits referred to in the course of this judgment.
Background
It is necessary to describe the history of the proceedings in some detail. The Proceeds of Crime Act 1996 was enacted on the 4th August, 1996. Its long title described it as “An Act to enable the High Court, as respects the proceeds of crime, to make orders for the preservation and, where appropriate, the disposal of the property concerned and to provide for related matters”. There was no provision initially in the Rules of the Superior Courts (“RSC”) as to how proceedings in the High Court under the Act of 1996 should be conducted. For that reason, in default of any other procedure provided for in the RSC, proceedings in this case were commenced by plenary summons issued on the 21st of November, 1996 (1996 No. 10143P) in which the plaintiff’s claim was for an order pursuant to s. 2 and thereafter pursuant to s. 3 of the Proceeds of Crime Act 1996 prohibiting the defendants with such other person as the Court might order from disposing of or otherwise dealing with the property described in the schedule thereto or such portion thereof as the Court might order. Ancillary relief was sought including an order pursuant to s. 7 appointing a receiver to take possession of such portion of the property as the Court might order and an order pursuant to s. 9 of the Act requiring the defendants to swear and deliver an affidavit specifying all property of which the defendants were in possession or control and the income and sources of income of the defendants during the past ten years. The plenary summons contained a schedule setting out a description of the property sought to be captured by the orders sought consisting of nine properties and five motor cars.
The plenary summons contains a number of endorsements indicating that it was served personally on Tracey Gilligan on the 27th November, 1996, the 27th November, 1996; on Darren Gilligan personally on the same date; on the 25th November, 1996 on Geraldine Gilligan by handing a true copy to her solicitor, Michael Hanahoe and thereafter the plenary summons was served on John Gilligan on the 27th November, 1996 at Her Majesty’s Prison, Belmarsh. He had been arrested on the 6th October, 1996 in Heathrow Airport in possession of £300,000 in cash. He appeared at Uxbridge Magistrates Court on a charge of concealing or transferring the proceeds of drug trafficking contrary to s. 4 of the Drug Trafficking Act 1994 in that jurisdiction and thus was in custody at the time when the plenary summons was served.
On the day that the plenary summons was issued, (the 21st November 1996), an interim order was made, on an ex parte application, pursuant to the provisions of s. 2 of the Act of 1996 restraining the defendants until after the 12th December, 1996 from disposing of or dealing with the property or any part of it set out in the schedule. Mr. Murphy was also given liberty to serve a notice of motion for “interlocutory reliefs” returnable on the 5th December, 1996.
The matter then came before the President of the High Court on the 5th December, 1996 on foot of the notice of motion which was grounded on an affidavit sworn by Mr. Murphy on the 21st November, 1996. At that hearing, the only member of the Gilligan family to appear in Court was Geraldine Gilligan. The order made on that date recites the fact that there was no attendance by the first, third or fourth named defendants. The Court on that date made an order pursuant to s. 3 of the Proceeds of Crime Act. The Court also adjourned the motion for further hearing to Thursday, 19th December, 1996.
A further notice of motion was listed for hearing on the 19th December, 1996 in which a number of orders were sought including an order pursuant to s. 7 of the Act of 1996 for the appointment of a receiver of the property and an order pursuant to s. 9 of the Act of 1996. In addition, an order was sought seeking liberty to amend the plenary summons to add a prayer for relief in the following terms:
“An order under s. 4 of the Proceeds of Crime Act 1996 directing that the whole or if appropriate such specified part of the property as set out in the schedule in this plenary summons be transferred to the Minister of Finance or to such other person as the Court may direct.”
On that day, the 19th December, 1996, an appearance was entered by Mr. Paul McNally, solicitor, on behalf of John Gilligan. An appearance had been entered the previous day on behalf of Geraldine Gilligan by Michael E. Hanahoe & Company, Solicitors. On the 19th December, 1996, the President of the High Court made a further order pursuant to s. 3 of the Proceeds of Crime Act 1996 in similar terms as previously and further ordered that the motion stand adjourned generally with liberty to re-enter. It is noted in the order that counsel for the first named defendant, counsel for the second named defendant and counsel for the fourth named defendant were represented and heard at the hearing of the motion on the 19th December, 1996. There was no attendance in court by or on behalf of the third named defendant. The notice of motion listed for that date seeking the appointment of a receiver together with other relief was then adjourned to the 24th January.
A series of affidavits were sworn by Darren Gilligan and Geraldine Gilligan leading up to that date and in respect of a motion issued by them pursuant to s. 6 of the Act of 1996 for the purpose of allowing them to discharge reasonable expenses in relation to the proceedings incurred or to be incurred by them. That motion was returnable for the 30th January, 1997. An affidavit was also sworn on behalf of Tracey Gilligan in relation to that application although the notice of motion stated that the application was being made on behalf of Geraldine and Darren Gilligan. In her affidavit, Tracey Gilligan also sought an order under s. 6 of the Act of 1996. (An appearance had been entered on her behalf by Solicitors, Michael E. Hanahoe & Company, on the 29th January, 1997).
I have been unable to locate a copy of any order made on the 24th January, 1997 but that date is notable for one aspect of the matter. (The transcript of that hearing is to be found at Tab 32, Book 1 Greendale proceedings). In the course of that hearing a number of parties were present and that appears to have been the first occasion on which the issue of reasonable expenses in respect of legal costs was raised by any of the Gilligans. As mentioned already a notice of motion was issued returnable for the 30th January in respect of the formal application under s. 6 of the Act of 1996 in that respect. There was also representation by a Mr. Grimes who purported to be a receiver of the properties at issue in the proceedings. Reference was made to a consultation which had taken place with John Gilligan the previous evening between Mr. Langwallner, counsel on behalf of John Gilligan, which consultation took place in Belmarsh Prison. In the course of the hearing, Mr. Peter Charleton, S.C. (as he then was), on behalf of CAB, referred to the possibility of an argument being made to the effect that there should have been oral evidence heard by the Court in accordance with s. 8 of the Act. He referred at page 8 of the transcript (page 204 of the Gilligan motion book (Part 3)) to the fact that there was an argument to be made that in the absence of oral evidence the Court would not have jurisdiction to grant an interlocutory order. The matter was adjourned on that date without hearing any oral evidence.
Costs hearings
The notice of motion issued on the 28th January, 1997 in respect of the application pursuant to s. 6 of the Act of 1996 came on for hearing before the President on the 30th January, 1997. All of the Gilligans with the exception of John Gilligan were represented in Court by counsel on that date. An order was made that the Gilligans recover “their reasonable costs to be taxed in default of agreement of drafting affidavits in support of their application for an order sought on the notice of motion and that such costs be discharged from the proceeds of sale of the properties or any of them referred to in the schedule” and the matter was then adjourned to the 6th February, 1997. Thereafter an order was made on the 7th February, 1997 in which the President of the High Court made what were subsequently described as provisional orders in relation to costs. That order was the subject of an appeal to the Supreme Court.
It is interesting to note in passing that a notice of intention to cross-examine deponents at trial was served on behalf of CAB in respect of Geraldine Gilligan, Darren Gilligan and Treacy Gilligan in respect of the affidavits sworn by them in the course of the s. 6 application.
In addition an affidavit was sworn on behalf of John Gilligan on the 13th February, 1997 by his solicitor, Mr. Paul McNally. In the course of that affidavit Mr. McNally set out a number of details in relation to the various properties referred to in the schedule to the plenary summons. In his conclusion he asked for an order discharging the interlocutory injunctions granted on the 21st November and refusing applications for the appointment of a receiver over John Gilligan’s assets on the grounds that those assets were purchased from legitimate funds and from gambling winnings. It was also asserted that the “injunctions granted herein . . . and the appointment of a receiver over . . . John Gilligan’s assets constitute an infringement of the first named defendant’s constitutional and other rights”.
A further affidavit was sworn by Mr. McNally on the 13th February, 1997 seeking to have an order discharging the orders made on the 21st November and an order refusing the application to appoint a receiver pending the final determination of the London High Court proceedings concerning Mr. Gilligan.
It would be appropriate at this stage to mention the order made by the Supreme Court on the 13th May, 1997 on the appeal from the orders of the President of the High Court made in relation to the application pursuant to s. 6 of the Act of 1996. Counsel for the second, third and fourth named defendants were present for that hearing and the appeal was allowed in full and the matter was remitted back to the President of the High Court for further consideration “on such evidence as he considers appropriate”. I will refer to the judgment on that appeal later in the course of this judgment.
The final s. 3 order
What has been referred to as the third or final s. 3 order was made on the 16th July, 1997 in the High Court (Moriarty J.). It is apparent from the said order that John Gilligan and Geraldine Gilligan were represented at the hearing of the application made that day. The order records the fact that an order pursuant to s. 3 of the Proceeds of Crime Act 1996 was made prohibiting the defendants or any of them “until further order of the Court” from disposing or otherwise dealing with the whole or if appropriate a specified part of the property set forth in the schedule or diminishing its value otherwise than by order of the Court. Oral evidence was given on that date on behalf of CAB. The proceedings were then adjourned until Monday, 28th July at 10.30 a.m.
It is contended on behalf of the Gilligans that all parties understood the orders made pursuant to s. 3 to be interlocutory orders and not final orders. No doubt their contention is based on a number of factors including the description of orders under s. 2 of the Act as “interim orders” and in respect of s. 3 the description of orders as “interlocutory orders”; the fact that the proceedings were commenced, in the absence of any Rules of the Superior Courts providing otherwise, by plenary summons and the fact that the order made on the 16th July, 1997 provided that it was to continue until further order. Obviously, in the light of subsequent decisions and in particular the decision of the Supreme Court in the case of F. McK v. A.F. [2002] 1 IR 242, (the McKenna case) such an understanding could not have survived the decision of the Supreme Court in the McKenna case which made it clear that an order made pursuant to s. 3 is not an interlocutory order although it is so described in s.3 of the Act of 1996 but is a final order. I will discuss this matter further in the course of the judgment. An issue has been raised as to the validity of the order made on the 16th July, 1997 given that this was the third occasion on which an order pursuant to s. 3(1) of the Act of 1996 had been made and I will also refer to this issue subsequently.
Further steps
There have been many other applications and proceedings over the course of this case and related proceedings and I will refer to a number of those. The next step in these proceedings was an application made by notice of motion on the 28th July, 1997. That was a further application for an order pursuant to the provisions of s. 6 of the Act of 1996 for the purpose of allowing the Gilligans to discharge reasonable expenses in relation to the proceedings out of the proceeds of the properties referred to in the proceedings and, in effect, this application was made possible by the earlier decision of the Supreme Court on the 13th May 1997. The Notion of Motion in that regard was mentioned to the Court on the 16th July, 1997 and given a return date of the 28th July, 1997.
The motion listed for the 28th July, 1997 was brought on behalf of the Gilligan family with the exception of John Gilligan. In respect of that motion it appears that a number of affidavits were filed, namely, five affidavits sworn by Geraldine Gilligan, two affidavits sworn by Darren Gilligan and a further affidavit sworn by Treacy Gilligan. An affidavit sworn by Geraldine Gilligan on the 28th July, 1997 refers to the previous proceedings and affidavits sworn in connection with the previous application pursuant to s. 6 of the Act of 1996 which was heard by the President of the High Court and which was the subject of the successful appeal to the Supreme Court. In essence the relief sought was to have available to her assets presently vested in her which were made the subject of the s. 3 order in order to fund a defence to the proceedings. Orders were made on foot of the notice of motion on the 31st July, 1997. It will be appropriate simply to refer briefly to the orders made in respect of Geraldine Gilligan as the orders made in respect of Darren and Treacy Gilligan were in similar terms. It was provided that there was to be no payment for costs at the present time. It was then provided that if the property referred to in the first schedule of the order be sold the costs of defending these proceedings including any previous applications in this Court and in the Supreme Court should be paid out of the proceeds of the sale, the judge hearing the proceedings to measure them or direct their taxation and the basis on which they should be taxed. Should the property not be sold then liberty is given to re-enter the motion to order that the property be charged.
A further notice of motion was issued by Geraldine Gilligan returnable for the 10th November, 1997 in which she sought the approval of the incurring of expenditure on accountancy services. In addition she also sought an order requiring Mr. Murphy to deliver a statement of claim. In correspondence preceding the issue of that motion, it is interesting to note a letter exhibited in an affidavit of Mr. Michael Hanahoe sworn to ground the motion and dated the 7th October, 1997 from the office of the Chief State Solicitor. In that letter it is stated as follows:
“It would appear that proceedings under the Proceeds of Crime Act of 1996 do not contemplate the delivery of the statement of claim. All remedies under that Act appear to be available by way of motion. If your client wishes to bring the matter before the Court at this stage it would appear that the appropriate manner to do so would be by way of a motion seeking relief pursuant to s. 3, subs. (3) of the Proceeds of Crime Act 1996.”
This would appear to be the first reference to the possibility of bringing the matter back before the Court by way of an application pursuant to s. 3, subs. (3) of the Act of 1996. In the meantime a number of affidavits were sworn by Mr. Murphy and on his behalf in relation to concerns over the use of some of the vehicles referred to in the schedule to the s. 3 order and in relation to the properties listed in the schedule. The concerns related to the use of the vehicles without insurance or whilst those using them were disqualified from driving and secondly the insurance status of some of the properties.
An order was made by the High Court (Shanley J.) on the 19th December, 1997 which refers to the plaintiff’s notice of motion issued on the 5th December, 1996 and the motion issued on behalf of the second, third and fourth named defendants filed on the 7th November, 1997 which is the motion returnable for the 10th November, 1997. The order recites that having heard counsel for the plaintiff and counsel for the second, third and fourth named defendants respectively “It is ordered that the fees of the defendants’ auctioneers expressed to be in the region of £1,000 be charged on the property of the said defendants as attached in the schedule to the order”. The order then recites as follows:
“It is further ordered that the motions be adjourned to Friday the 16th day of January 1998 with consent to the interim orders continuing.”
A notice of intention to cross-examine a deponent was served by the Chief State Solicitor in respect of Mrs. Gilligan on the 12th January, 1998 in relation to affidavits sworn by her on the 25th July, 1997 and the 28th July, 1997.
A motion was then listed on behalf of Mr. Murphy returnable for the 16th January, 1998. A series of orders were sought amending clerical errors in certain items described in the schedule to the order of 16th July, 1997 together with similar relief in relation to the various properties described in the schedules on the plenary summons and in various orders. In practical terms nothing turns on this notice of motion. An order was made on foot of that notice of motion on the 30th January, 1998 which noted that there was no objection by the first named respondent or the second named respondent to the making of orders in terms of the notice of motion. The solicitor for the third named and fourth named respondent was present.
A further notice of motion was then issued on behalf of Darren and Tracey Gilligan seeking relief pursuant to s. 6 of the Act of 1996. The notice of motion was returnable for the 13th February, 1998 and was grounded on affidavits of Darren and Tracey Gilligan. That notice of motion resulted in an order being made whereby the High Court (Shanley J.) certified for legal aid in respect of Darren and Treacy Gilligan. It was also provided that Garrett Sheehan & Company, Solicitors, be their solicitors and to allow him to nominate junior and senior counsel.
A notice of motion was issued on the 26th February, 1998 on behalf of Geraldine Gilligan returnable for the 6th March, 1998 seeking an order dismissing the plaintiff’s claim for failure to deliver a statement of claim to her within the time prescribed by the Rules of the Superior Courts or in the alternative an order dismissing the plaintiff’s claim for want of prosecution.
A further notice of motion was issued on behalf of Geraldine Gilligan on the 30th March, 1998 returnable for the 3rd April of that year. In that notice of motion it was sought to amend the notice of motion dated the 26th February, 1998 by the addition of a further paragraph seeking to set aside the order of the High Court made on the 5th December, 1997 “and all the proceedings had herein by reason of the non-compliance of the plaintiff herein with the Rules of the Superior Courts and the procedures practice therein prescribed in respect of pleadings and proceedings applicable to cases commenced by way of plenary summons and in particular failing to comply with Order 1 of the said Rules”. A series of affidavits were sworn by Geraldine Gilligan dealing with matters such as the question of the appointment of a receiver, a relief sought by Mr. Murphy in the proceedings, issues relating to the insurance of various properties and further details as to persons in possession of various properties. In addition Geraldine Gilligan was seeking discovery of documents in relation to the contentions and averments of Mr. Murphy in the proceedings. Discovery was also an issue raised on behalf of Darren and Tracey Gilligan as can be seen from an affidavit of their solicitor, Richard English, sworn on the 2nd April, 1998. Mr. Murphy, in response to that affidavit, objected to the making of discovery in his affidavit sworn on the 30th April, 1998. He also dealt with the issues raised by Geraldine Gilligan in a further affidavit sworn by him on the same date. It is interesting to note a number of comments made by Mr. Murphy in the course of his affidavit. On the issue of discovery, he indicated that his counsel had indeed confirmed to counsel for Geraldine Gilligan that “no voluntary discovery will be made . . .”. He went on to say that she understood the case being made against her and against her interests and seems unwilling to provide her own legal advisers with meaningful instructions which might enable them to consider whether or not she was in a position to bring an application pursuant to s. 3(3) of the Act of 1996. He also took issue with an averment of Geraldine Gilligan relating to her “lack of legal representation” and pointed out that she was able to instruct senior and junior counsel and her solicitors to act on her behalf in relation to Revenue proceedings in the High Court in November 1996 and that she remained in the same position as of that date. He argued that the application for discovery was an attempt to defer and delay the completion of the appointment of the receiver in the proceedings.
An order was made on the 9th July, 1999 by the High Court (O’Higgins J.) refusing the motion brought on behalf of Darren and Treacy Gilligan seeking discovery.
Subsequently on the 16th July, 1999 O’Higgins J. made orders dismissing two notices of motion brought by Geraldine Gilligan seeking to have the proceedings dismissed for failure to deliver a statement of claim or alternatively for want of prosecution and also refused the application made by her for discovery. That order was then the subject of an appeal brought by Geraldine Gilligan to the Supreme Court.
It is worth bearing in mind that the various applications being made in relation to the appointment of a receiver, issues as to insurance concerns on the part of CAB, discovery and provision of legal aid or funding were taking place before the decision in the McKenna case referred to previously. Bearing that in mind, it is useful to consider the observations of Murphy J. in delivering the judgment of the Supreme Court (Murphy v. Gilligan (Unreported, Supreme Court, 13th May, 1997, Murphy J.)) in relation to the appeal from the decision of the President of the High Court in respect of the first order made in respect of s. 6 of the Act of 1996 when the Gilligans were seeking orders in relation to the funding of their costs. In his judgment in that matter Murphy J. described an order made pursuant to s. 3 of the Act of 1996 in the following terms (at p. 4):
“An order so granted is described in s. 3 of the Act of 1996 as ‘an interlocutory order’. The pattern of conventional civil proceedings in the High Court might lead one to anticipate that as soon as practicable after the making of the interlocutory order, and subject to the completion or disposal of any formal or procedural matters, the issue as to whether the particular property did or did not constitute the proceeds of crime or was or was not acquired with property that constituted proceeds of crime would be determined in a plenary hearing before the High Court. That is not the case. The order described in the [Act of 1996] as ‘an interlocutory injunction’, unless revoked by the Court, continues in full force and effect for not less than 7 years from the granting thereof and until a ‘disposal order’ within the meaning of s. 4 of the [Act of 1996] is made by the court on the application by the Applicant. The application for a disposal order does provide the person having possession or control with the final opportunity to show, as presumably he was unable to show in the previous 7 years, that the property in question was not tainted in the manner envisaged by the Act. But primarily the purpose and effect of the disposal order is to terminate the period of suspension and finally to deprive the respondent of any right which he or she might have in the property which would then stand transferred to the Minister for Finance or such other person as the court would determine.
During the limited period in which an interim order is in force or the lengthy period for which an interlocutory order may endure, the property the subject matter thereof remains in the possession and control of the respondent subject to the power conferred upon the Court to make a variety of orders for the preservation thereof. In particular the Court may, whilst any such order is in force, exercise the power conferred upon it by s. 7 of the Act of 1996 to appoint a receiver to take possession of the property and, in accordance with the Court’s directions to manage, keep possession or dispose of or otherwise deal with such property.” (italics in original)
This is a useful description of the main provisions of the Act of 1996.
At page 8 of the same judgment Murphy J. commented:
“Whilst it may not be material to the present proceedings, it is appropriate to record that counsel on behalf of the Appellant indicated that whilst his clients accepted that what may be described as a ‘freezing order’ has been made in relation to the schedule property and is currently in operation in relation thereto it is intended to argue, at an appropriate stage, that an interlocutory order as the same is defined by s. 3 of the Act of 1996 has not been made having regard to the nature of the evidence tendered in support of the application therefor.” (italics in original)
The observation made by Murphy J. makes it clear that the understanding of the parties to that appeal was that there would be an opportunity at a later stage (however that might arise) to challenge the underlying s. 3 order but not in the context of a plenary hearing before the High Court as that term is usually understood. Those observations were, of course, made prior to the making of the order of the 16th July 1997. As is clear, from those comments, a party affected by a s.3 order retained an opportunity to demonstrate that the property at issue was not the proceeds of crime in the course of an application for a disposal order pursuant to s. 4 of the Act of 1996.
The Constitutional Challenge to the Act of 1996
Another aspect of the matter which is of some interest relates to the application by Mr. Murphy for the appointment of a receiver over the assets, the subject of the s. 3 order.
A hearing took place in respect of the appointment of a receiver in the High Court before Laffoy J. on the 13th February, 1997. At that hearing, John Gilligan was represented by Mr. David Langwallner and the other Gilligan family members were represented by Mr. Adrian Hardiman, S.C. (as he then was). Mr. Peter Charleton, S.C. (as he then was) appeared on behalf of Mr. Murphy. It transpired at the outset of the hearing that that very day a plenary summons had been issued by John Gilligan challenging the constitutionality of the Act of 1996. Given that a constitutional challenge had been made to the Act of 1996, counsel on behalf of Mr. Murphy did not seek to pursue his application that day to have a receiver appointed to sell the property at issue and retain the proceeds of sale pending a final disposal after the statutory period of seven years. The hearing before Laffoy J. dealt instead with the time scale for the delivery of pleadings in the constitutional challenge proceedings. Counsel on behalf of the other Gilligans supported an application to adjourn the application pursuant to s. 7 and it was clear that at that time their focus was on the appeal to the Supreme Court in relation to the application pursuant to s. 6 of the Act. It was noted in the course of the hearing that whilst there was a mechanism in the legislation for “unfreezing when a freezing order is made,” it was also noted that such mechanism had not been invoked. The outcome of the hearing was that the application on behalf of Mr. Murphy for the appointment of a receiver was adjourned and directions were given as to the delivery of pleadings in the constitutional action and the application before the Court was then adjourned.
At this point it would be prudent to refer to the constitutional proceedings which were issued on behalf of John Gilligan. Those proceedings were heard before the High Court (McGuinness J.) commencing on the 18th March, 1997 (1997 No. 1667P). Judgment in that matter was delivered on the 26th June, 1997 and the report of the judgment is to be found at [1998] 3 IR 185. In an affidavit sworn on the 4th July, 2014 in these proceedings, John Gilligan commented that “the only issue that the High Court ruled on in my constitutional challenge was whether the Proceeds of Crime Act 1996 was civil or criminal in nature”. In fact, as is clear from the judgment of the High Court in that case, Mr. Gilligan challenged the constitutionality of the Act in a number of respects as is set out in page 195 of the reported judgment, namely, the claim that the Act failed to protect the right to a fair trial and the right to fair procedures by assuming without charge, indictment, trial or conviction the existence of a criminal offence and by requiring the plaintiff to prove on affidavit that he is not and was not a criminal and that his assets are not the proceeds of crime. It was contended that in compelling the plaintiff to account for his assets that the Act failed to protect his privilege against self-incrimination and his right to silence. It was also claimed that by assuming, without due process of law, that he is guilty of a criminal offence the Act fails to uphold the presumption of innocence. It was further claimed that s. 6(1) of the Act by giving the Court discretion as to whether to allow funds to be released for legal expenses was in breach of Article 40.3 of the Constitution and that the Act failed to protect the property rights of the plaintiff from unjust attack, in particular by the appointment of a receiver and the possible disposal of his assets. Reference was also made to the fact that the Act casts upon the plaintiff in those proceedings the burden of proving that he is not a criminal, thus reversing the normal burden of proof and that the Act was generally “in breach of natural justice, constitutional justice and what is described as ‘constitutionalised natural justice’” (at p. 196). An issue was also raised to the effect that the Act failed to protect his rights under European Community law, Article 6 of the European Convention on Human Rights and Article 1 of the First Protocol of the European Convention on Human Rights. An amendment was also made to the statement of claim to add in a claim that the Act was designed to have retrospective effect and that the Act was thus in breach of Article 15.5 and other Articles of the Constitution.
One of the issues that required to be considered was whether the proceedings under the Act of 1996 were in reality the trial of a criminal offence without the procedures for such a trial. McGuinness J. concluded (at p. 224) that forfeiture proceedings such as are provided for in the Act of 1996 were civil and not criminal in nature. She also concluded that there was no constitutional bar on the determination in civil or other proceedings of matters which may constitute elements of criminal proceedings. She was of the view that the procedures set out under the Proceeds of Crime Act 1996 were not criminal in nature. To that extent she stated that the standard of proof in procedures under the Act of 1996 may permissibly, therefore, be the balance of probabilities. Accordingly she concluded (at p. 224):
“The protections afforded by Article 38.1 of the Constitution are not applicable.”
She then dealt with the question of the reversal of the onus of proof and concluded that the plaintiff’s arguments in that regard could not be sustained. She then dealt with the challenge to the Act based on the argument that it infringed the privilege against self-incrimination or the right to silence. Again she rejected the arguments of the plaintiff in those proceedings. She then dealt with the issues raised by Mr. Gilligan in relation to the provisions of s. 6 of the Act of 1996. She concluded that (at p. 235):
“Section 6(1)(a) envisages a parallel system, where the court has a discretion to release monies to provide for legal representation of a respondent. It must be presumed that the court will use this discretion in a constitutional way and that persons will not wrongfully be deprived of legal representation.”
She then dealt with the issue raised to the effect that there was an attack on the plaintiff’s right to private property. She concluded that (at p. 237):
McGuinness J. then dealt with the claim made in relation to the contention that the Act of 1996 was retrospective in its effect and therefore in breach of Article 15.5 of the Constitution. She rejected that argument. Finally she dealt with the issue of proportionality and concluded (at p. 243) that “viewing the provisions of the Act in the light of their proportionality to the threat posed to the common good”, she was satisfied that it had not been established that the provisions of the Proceeds of Crime Act 1996 were invalid having regard to the provisions of the Constitution. Accordingly the plaintiff’s case failed.
The decision of McGuinness J. in those proceedings was then appealed to the Supreme Court and the Supreme Court decision was given together with a judgment in a second case under the title Murphy v. G.M. [2001] 4 IR 113. Mr. Gilligan was represented in those proceedings by Dr. Michael Forde, S.C. and Mr. Donal O’Donnell, S.C. (as he then was) appeared on behalf of the State defendants.
In the course of the judgment of the Supreme Court (Keane C.J.) noted at page 128 as follows:
“No rules of court have been made prescribing the procedure to be followed in applications under the Act of 1996 and, specifically, indicating whether they are to be initiated by way of plenary summons, special summons, notice of motion or some other mode. There was therefore no reason in principle why the proceedings should not have been initiated by way of plenary summons claiming the only relief which was required at that stage, i.e. orders under ss. 2, 3, 7 and 9. It would seem at least debatable whether an application for a disposal order under s. 4 should have been included at that stage, since, as already noted, that relief could not be granted by the court until the expiration of a period of seven years from the date of the making of the interlocutory order. In the event, however, the learned High Court Judge indicated that, in his view, the plenary summons should be amended so as to include a claim under s. 4 and such an application was made and granted following the judgment on the interlocutory application.”
The Court went on to consider the constitutional challenge and concluded that the Act of 1996 enjoyed a presumption of constitutionality and that the onus was on the appellants to establish that it was invalid having regard to the provisions of the Constitution. It was also held that orders under ss. 3 or 4 could be made even though it had not been shown that there was mens rea on the part of the person in possession or control of the property. The fact that the person in possession or control of the property against whom the order was sought might not have been in any way involved in any criminal activity and might not have been aware that the property constituted the proceeds of crime, would not prevent the Court from making an order freezing the property under ss. 2 or 3, unless it was satisfied that there would be “a serious risk of injustice”. The Court might decline to make the order in a case where the person in possession or control was in a position to establish that he or she had purchased the particular property in good faith for valuable consideration: it might, on the other hand, make the order in circumstances where an innocent recipient of the property had made no payment for it. Accordingly, the Supreme Court dismissed the appeals from the constitutional challenge brought by Mr. Gilligan.
Further Applications
As mentioned previously, a number of other applications were being made in the principal proceedings while the constitutional challenge to the Act of 1996 was taking place. There was the motion by Geraldine Gilligan in which she sought to have a statement of claim delivered and also sought discovery. In addition she had also sought to have an order made setting aside the order of the 5th December, 1996. The motions in that regard were listed from time to time and were listed alongside the motions brought by Mr. Murphy seeking to have a receiver appointed. The reliefs sought by Geraldine Gilligan were refused by order of the High Court made the 16th day of July, 1999. Discovery motions brought by Tracey and Darren Gilligan were refused on the 9th July, 1999. According to Mr. Gilligan’s 2014 affidavit, counsel on his behalf had appeared from time to time before Mr. Justice O’Higgins. Mr. Gilligan said that counsel only appeared for the purpose of indicating that there were no instructions on behalf of John Gilligan in relation to the matters before the Court. In fairness, I think it is probably the case that insofar as the applications made on behalf of Darren and Treacy Gilligan and on behalf of Geraldine Gilligan were concerned there would have been no reason why John Gilligan would have required representation in relation to those particular matters. He would, of course, have had an interest in the motions which were being adjourned from time to time on behalf of the plaintiff, Mr. Murphy, seeking the appointment of a receiver.
Fresh application
On the 18th February, 2000 an application was made on behalf of the third and fourth named respondents for the first order pursuant to s. 3(3) of the Act of 1996 discharging the order made on the 16th day of July, 1997 in respect of the properties in which Darren and Treacy Gilligan resided. It was also sought to have an order for discovery made against Mr. Murphy in relation to the ownership and financing of those properties. A further notice of motion was issued on behalf of John Gilligan on the 21st February, 2000 seeking to have the proceedings dismissed on the basis that there was a refusal to furnish the statement of claim, that no substantive relief was sought in the plenary summons which claimed only interim or interlocutory reliefs of one kind or another and because ss. 4 and 8(1) of the Act of 1996 were invalid having regard to the Constitution or in contravention of the European Convention on Human Rights. An order was also sought varying the interlocutory order so that assets could be released to fund John Gilligan’s defence and related appeals. That application was grounded upon an affidavit of Mr. Paul McNally, the solicitor for John Gilligan. That application was dealt with by the High Court on the 24th March, 2000 and it appears that counsel for John Gilligan informed the Court that the only relief claimed was that set out at paragraph 1 of the notice of motion. The motion was adjourned pending the determination by the Supreme Court of the appeal in the constitutional proceedings which was at that stage still outstanding.
Subsequently an application was made on behalf of Mr. Murphy for liberty to amend the plenary summons to include a claim for relief under s. 4 of the Proceeds of Crime Act 1996. All of the Gilligans were represented at that hearing. The application was granted by the High Court (O’Sullivan J.) on the 19th May, 2000. An order for costs was made in favour of the Gilligans in respect of that motion. Mrs. Geraldine Gilligan lodged an appeal against the making of that order by notice of appeal dated the 7th June, 2000. Following a further application before the High Court (O’Sullivan J.) on the 8th June, 2000, at a hearing at which the solicitor for Mr. Murphy was present and counsel for Darren and Tracey Gilligan were represented, an application on behalf of Mr. Murphy to extend time to amend the plenary summons was refused with liberty to apply and the order made on the 19th May was amended to include provision that the amendment would be stayed in the event of an appeal. A notice of appeal was duly lodged on behalf of Tracey and Darren Gilligan on the 28th July, 2000. A further notice of motion was issued by Mr. Paul McNally, solicitor on behalf of John Gilligan, on the 30th September, 2002. In that notice of motion John Gilligan sought an order discharging the orders made against him “as they were made (and unsuccessfully resisted) on the basis that the s. 3 application was truly interlocutory and not in substance the trial of the action”. That application was grounded on an affidavit of Mr. McNally relied on the definition of “interlocutory”. Paragraph 3 of the affidavit is worth quoting:
“Accordingly when defending the application under s. 3:
(a) No application was made to strike from the plaintiff’s affidavits the extensive hearsay therein (which would not be admissible in the trial of any civil action under the laws of evidence presently in force in this State).
(b) It was decided not to join issue on the facts, as they could be disputed at the trial i.e. the s. 4 application when it was anticipated that the plaintiff would be obliged to furnish a fully particularised statement of claim, my client could get discovery of relevant documents, could call witnesses, could cross-examine the plaintiff’s witnesses, could subpoena witnesses and documents and objected to inadmissible hearsay (in the same way as all other defendants in proceedings commenced by way of plenary summons).”
Reference was made in the course of that affidavit to the decision of the Supreme Court referred to previously in the case of Murphy v. G.M. [2001] 4 IR 113 (the Constitutional challenge). Reference was also made to the decision in the McKenna case in which the Supreme Court held that a s. 3 order is not interlocutory in the sense in which the term “interlocutory” is usually understood but is a final order. The observation is then made that an injustice would be caused if the s. 3 order and other orders made in these proceedings was not discharged because if it had been clear that the s. 3 application was not truly interlocutory but was in substance the trial of the action he and counsel would have defended the application in an entirely different way.
That is the first occasion on which concern was expressed as to how the s. 3 orders came to be made against the Gilligans but as was stated by Mr McNally “It was decided not to join issue on the facts, as they could be disputed at the trial i.e. the s. 4 application.”
A number of appeals came before the Supreme Court on the 13th April, 2005. The appeal by Geraldine Gilligan against the application of Mr. Murphy to amend the plenary summons to include a claim for relief under s. 4 of the Act of 1996 was allowed. (That was the order of O’Sullivan J. made on the 19th May, 2000). In addition the Supreme Court dealt with appeals from the order of the High Court (O’Higgins J.) made on the 16th July, 1999 refusing Geraldine’s Gilligan’s application to dismiss the claim for failure to deliver a statement of claim together with an appeal in relation to a decision of the High Court to refuse Geraldine Gilligan’s motion for discovery. The order recites that:
“The Court ruling that the order of the High Court
(Mr. Justice Moriarty) made on the 16th day of July 1997 was a final order under s. 3 of the Proceeds of Crime Act 1996
It is ordered and adjudged that this appeal do stand dismissed and that the said order of the High Court do stand affirmed.”
Those orders were made as I have mentioned in a series of appeals being No. 152 of 2000, No. 252 of 1999 and No. 253 of 1999.
The next step in the proceedings is a notice of motion issued on the 27th July, 2005 on behalf of Geraldine Gilligan. In the course of that motion an order was sought pursuant to s. 3(3) of the Act of 1996 discharging or varying the s. 3 order made on the 16th day of July, 1997. Alternatively, an order was sought pursuant to the inherent jurisdiction of the Court and/or pursuant to the constitution and/or the European Convention on Human Rights setting aside in whole or in part the said order, together with consequential relief. That application was grounded on an affidavit of Mr. Terence Hanahoe, the solicitor for Ms. Gilligan. It was stated in that affidavit that it was evident that “Mr. Justice Moriarty was under the impression that he was making an interlocutory order which did not fundamentally prejudice the second named defendant’s position.” Mr. Hanahoe went on to say that the true legal nature of the order being made was a final order in the proceedings. It was further pointed out that at the time of making that order the High Court had yet to consider the grant of a further s. 6 order further to the successful appeal to the Supreme Court in relation to that matter. Thus it is contended that she did not have a real or meaningful opportunity to contest the s. 3 order and it is on that basis that it is sought to set aside the s. 3 order.
Challenges to the validity of the s. 3 order of the 16th July 1997
A motion was then issued on the 6th February, 2006 on behalf of John Gilligan which sought a series of orders and declarations including an order vacating the order of the 16th July, 1997. This notice of motion encompassed issues as to the constitutionality of the Proceeds of Crime (Amendment) Act 2005 and in particular ss. 6 and 10 thereof. A declaration was sought that:
“If on their proper construction those sections of the 2005 Act apply to these proceedings, to that extent they are repugnant to the Constitution and/or incompatible with the European Convention on Human Rights, inter alia retrospective effect and separation of powers.”
The affidavit grounding that notice of motion was sworn by Mr. Paul McNally on the 20th January 2006 and it would be helpful to refer to two paragraphs of the affidavit in which Mr. McNally at paragraph 5(e) stated:
“For several years after the [Act of 1996] came into force, I am advised by counsel and believes that applications under s. 3 of that Act were consistently treated as interlocutory hearings by all counsel appearing on behalf of the Criminal Assets Bureau and also by all High Court judges dealing with such cases, including two learned Presidents of this Court, as well as the Honourable Mr. Justice Moriarty on 16th July, 1997.”
Mr. McNally continued:
It should be recalled that the constitutional challenge was decided in the High Court on the 26th June, 1997 just before Moriarty J. made the order of the 16th July, 1997 and his appeal to the Supreme Court was rejected on the 18th October, 2001.
Mr. McNally in his affidavit referred to the finding of the Supreme Court where the following observation was made ([2001] 4 IR 113 at 154):
“As to the claim that the period of seven years which must elapse before a disposal order is made is unduly oppressive, that rests on the misconception that the application for a disposal order can in some sense be equated to the trial of an action in respect of which the legislation earlier provides for interlocutory orders being made. That is clearly not the nature of the scheme provided for in the Act. A person who is affected by the provisions of an interlocutory order can apply at any time before the expiration of the seven year period for an order discharging or modifying the interlocutory order.”
Mr. McNally then went on to argue that that interpretation could not stand because it was reached in a manner that contravened the European Convention on Human Rights and was itself in contravention of the Convention. He argued that there had been a denial of audi alteram partem and a failure to state reasons “other than that the view taken by this application was misconceived”,
That motion, together with the notice of motion issued on behalf of Geraldine Gilligan referred to above, came on for hearing before the President of the High Court (Finnegan P.). An issue paper was prepared and filed by Michael E. Hanahoe & Company, Solicitors for Geraldine Gilligan, which was agreed by “the first, second and fourth named defendants”. The key questions were as follows:
The remaining issues were ancillary matters dependent on the answers to the above issues.
I pause at this moment just to reflect on one issue. It is clear that at this time the case being made on behalf of all of the Gilligans was that the relevant “final” order was that made on the 16th July, 1997 by Moriarty J. There was no suggestion that the procedure which led to the making of that order was in any way defective or that the “final” s. 3 order was one or other of the orders made by Costello P. as is now contended by the Gilligans.
The transcript of the hearing before Finnegan P. in relation to this matter has been exhibited by John Gilligan in his affidavit of the 14th July, 2014. In the course of his ex tempore judgment, Finnegan P. observed that s. 3 was a “final order” in the real sense of a final order. He further noted that it was subject to two possibilities of review, namely on an application pursuant to s. 4 which did not arise in the course of the application before him at that time and secondly, on an application pursuant to s. 3(3) of the Act of 1996. It is important to consider how the matter had developed in front of Finnegan P. and was argued as that informs the ruling that was given. Finnegan P. observed at page 72 of the transcript:
“There are two circumstances in which the Court can re-open the matter under s. 3(3); the respondent at any time, not withstanding that there has been a finding that the property is the proceeds of crime, that is a finding under paragraph 1 of subs. (1) which for accuracy sake:
‘The specified property and the property constitutes directly or indirectly the proceeds of crime or was acquired in whole or in part with or in connection with the property or directly or indirectly constitutes the proceeds of crime’.
So an application can be made to review the order relying on that portion of s. 3(3). As I understand it that ground will be relied upon by the fourth named defendant and may also be relied upon by the third named defendant, but I have adjourned that. That is not relied upon as I understand it by the first or second named defendant. So therefore, all I need to consider is whether the remainder of s. 3(3) gives the court any power or jurisdiction in effect to look at the process whereby the s. 3 order was obtained and, if dissatisfied with that, interfered (sic) with it.
I am satisfied that that is not the intent or effect of s. 3(3). It is not a licence for the court to re-open something which has been determined by a final order and to do so at large. Section 3(3) envisages that where an order exists it is a valid order but that it may cause an injustice. And that, as I understand it, it causes an injustice by being in force. Then the court can ameliorate that injustice if necessary by discharging the order or by varying it. . . .
I do not believe that on an application pursuant to s. 3 it is appropriate for the court to have regard in any sense and for any purpose to proceedings that led to the making of the order and I do not propose to consider the same. I will deal with these applications on the basis of anything that has happened that results since the making of the order or outside the making of the order and outside any issue as to the validity or proprietary (sic) of the order in its operation and that is the only basis I will deal with it.”
The hearing continued subsequently with arguments in relation to an issue of estoppel and legitimate expectation. Insofar as the issue of estoppel is concerned Finnegan P. commented:
“There can be no question of estoppel here because there was no representation. There was a misapprehension common to the parties to the original s. 3 application. It is as simple as that.
If it is the case that this court can re-open a matter where a final order has been made which was not appealed then in every case, where subsequent to the hearing of the case the law was correctly interpreted in another case, the matter would have to be re-opened and that simply does not happen and cannot happen. I see no reason why the final order in this case should be different, unless s. 3(3) applies where there is a statutory provision to enable such an approach. I have already held that s. 3(3) does not apply.”
An appeal was lodged on behalf of behalf of Mr. Gilligan from the rulings of Finnegan P. by notice of appeal dated the 10th April, 2006. Some time later an appeal was lodged on behalf of Geraldine Gilligan. (It was necessary to extend the time in which to make that appeal but nothing turns on that).
Before dealing with the decision of the Supreme Court in relation to the appeal from the decision of Finnegan P., I should mention some other applications that came before the Court. There was a further notice of motion dated the 28th July, 2006 in which an order was sought on behalf of John Gilligan and Tracey Gilligan seeking an order pursuant to Order 27, rule 1 or an order under Order 122, rule 11 (of the Rules of the Superior Courts) or the Court’s inherent jurisdiction dismissing these proceedings. That application was grounded on an application of Mr. Paul McNally sworn on the 19th July, 2006. Mr. McNally in that affidavit complained of the fact that no statement of claim had been served. He also stated that as appeared from an attendance note in relation to the hearing on the 16th July, 1997, that Moriarty J. in dealing with the matter treated the application as an interlocutory one in the universally accepted sense of the word, that is not final as to the issue in dispute, and was procedural rather than substantive. By way of response an affidavit was sworn by the Bureau Legal Officer on the 6th October, 2006. He set out the history of the proceedings and pointed out that the order of the High Court made on the 16th July, 1997 remained in place, was not appealed and that “to the best of my knowledge” no application for an extension of time within which to appeal against the making of the order had been made. It was noted that an application had been made on behalf of Mr. Murphy in January 1998 to correct typographical errors in the order of the 16th July, 1997. That application was not opposed. He went on to say that:
“It was initially believed that the delivery of a statement of claim was inappropriate in proceedings under PoCA. This view was upheld by this Honourable Court but ultimately did not find favour with the Supreme Court.”
He pointed out that the issue of the delivery of a statement of claim was not raised by John Gilligan until he sought to dismiss the proceedings by reason of the failure to deliver a statement of claim for the first time in February 2000. That came before O’Sullivan J. on the 24th March, 2000. The motion brought by John Gilligan was adjourned until the determination by the Supreme Court of the constitutional challenge and was never re-entered thereafter. As previously mentioned, a similar application had been brought on behalf of Geraldine Gilligan and was subsequently dismissed together with her application for discovery. Appeals were lodged to the Supreme Court and those were the matters ultimately heard on the 13th April, 2005. In his affidavit, the Bureau Legal Officer described the ruling of the Supreme Court as follows:
“The Court ruled that, as a s. 3 order had been made (and that the s. 3 order had not been appealed), the appeals must accordingly fail and expressed the view that there proceedings in being pursuant to s. 4 of PoCA in which any allegations of injustice could be raised.”
Reference was also made by the Bureau Legal Officer to the fact that as early as the 13th May, 1997 the Supreme Court had made observations in relation to the nature of an order under s. 3. This was also addressed by the Supreme Court in the decisions in the case of M v. G.M., reported at [2001] 4 IR 113 to which reference has previously been made and McK v. A.F. reported in [2002] 1 IR 242.
The relief sought in the notice of motion issued on behalf of John and Tracey Gilligan was refused by the President of the High Court on the 20th November, 2006.
A further notice of motion was issued on behalf of Geraldine Gilligan before the Supreme Court seeking an order extending the time to appeal against the judgment and order of Moriarty J. made on the 16th July, 1997. The basis of the appeal was stated to be the mistake which occurred, namely that she and her legal advisers (as well as Mr. Murphy, his legal advisers and the learned judge) were labouring under the impression that the order was truly interlocutory only and that she would not be prejudiced by a failure to appeal.
That notice of motion was grounded on an affidavit of Mr. Michael Hanahoe, Solicitor, sworn on the 21st February, 2008. A further motion was issued before the Supreme Court on behalf of Mr. Murphy returnable for the 11th July, 2008 seeking that various appeals be linked, that the case be case managed and seeking further directions from the Court. That notice of motion was grounded on an affidavit of the Bureau Legal Officer sworn on the 9th June, 2008. A replying affidavit was sworn by Geraldine Gilligan on the 19th June, 2008 which disagreed with the suggestion that some appeals had been left in abeyance but she did not take issue with the suggestion that the Supreme Court would give such directions regarding case management or listing as was considered appropriate by the Court. John Gilligan then issued a further notice of motion in the High Court seeking an order dismissing the proceedings on the grounds that the same were an abuse of the process of the High Court and that “the judge went ahead with the case when there was a Supreme Court stay on the s. 3 and 4”. That notice of motion on behalf of Mr. Gilligan appears to have been filed by himself. In that context, John Gilligan exhibited an order made by the Supreme Court on the 6th October, 2006 in relation to a motion issued on behalf of Geraldine Gilligan pursuant to the notice of motion dated the 25th July, 2006 seeking an order staying the trial of s. 4 applications to have the properties forfeited pending the outcome of the appeal against the judgment and order of the President of the High Court made on the 21st February, 2006 concerning s. 3(3) of the Act of 1996. The Supreme Court ordered that the High Court action be stayed pending the outcome of the appeal and liberty was granted to have a number of appeals heard together. A similar order was made on the same day in respect of a motion of John and Tracey Gilligan filed on the 25th July, 2006 seeking a similar order. The outcome of that application was the same. In his affidavit grounding the motion issued by John Gilligan and which was grounded on an affidavit sworn by him and which was received in the High Court on the 2nd July, 2008, Mr. Gilligan deposed in paragraphs 5 and 6 as follows:
“5. I do not agree that CAB have even a true legal s. 3, as the first one was got on the 5th December, 1996 with no Gilligans present or even told what the CAB was in court looking for, I was in prison in England and my son and daughter was not put on notice like I was not, my daughter and son was not put on notice until January 1997, and by that time CAB had got a second s. 3 on the 19th December, 1996 and their third s. 3 on the 16th July, 1997, the learned President of the High Court made a ruling that what he was giving CAB on the 16th, July 1997 was not in any way a s. 3 order.
6. I say each of the 3 section orders (sic) are entirely different from real s. 3 orders because for CAB to get themselves a lawful s. 3 order they have to serve statement of claim and they have not done so in over my eleven year and my constitutional European right gives me the right to a full hearing before any court can give them a lawful s. 3 order and to this day of June 2008 that has not been done, so any order they have is not a true order.”
He went on to claim that it was an abuse of process to carry on with the case before the outcome of his appeals pending the s. 3 and stay orders being ruled upon. Mr. Gilligan represented himself before the High Court in relation to that application, which was heard before Feeney J. on 17th July, 2008. Having heard the application, an order was made refusing the relief sought in the notice of motion. That order was in due course appealed to the Supreme Court by a notice of appeal dated the 23rd July, 2008.
An application was then brought to the Supreme Court on the 14th October, 2008 on behalf of Tracey Gilligan seeking an extension of time in which to appeal against all three s. 3 orders, namely the orders of the 5th December, 1996, the 19th December, 1996 and the 16th July, 1997. That motion was grounded on an affidavit of Mr. Paul McNally sworn on the 3rd March, 2008 in which it was stated:
“The said s. 3 orders caused ‘injustice’ within the meaning of s. 3 having regard to all or any of the following:
(a) The absence of any formal hearing at the time of the making of the orders.
(b) The fact that the judges, namely Judge Costello, the then President, and Judge Moriarty, when making the said orders were under the impression that they were making interlocutory orders.
(c) That at the time of the making of the first two orders my clients did not have legal representation and that at the making of the order of 16th July, 1997 she did not have the benefit of legal counsel as the s. 6 order was made subsequent to the said order of 16th July, 1997. In these circumstances my client did not have a meaningful opportunity to contest the s. 3 application brought by the plaintiff.
(d) The circumstances of the making of the s. 3 orders contravene my client’s rights pursuant to the Constitution and the European Convention of Human Rights.”
Legal submissions were furnished to the Supreme Court in support of that application and it is worth quoting briefly from paragraph 7 of those submissions in which it was stated:
“It is submitted that, in the circumstances, Costello’s J.’s order (sic) and any of the ensuing 1997 ‘confirming/affirming’ orders were interlocutory ‘interlocutory’ orders and not final ‘interlocutory’ orders and, accordingly the s. 4 proceedings involved in this appeal cannot yet (if ever) even get off the ground. Given the unanimous understanding at the time they were obtained and the stance since taken by the CAB regarding pleadings until the AF case [2002] 1 IR 242 was decided, the plaintiff is estopped from treating those orders now as final ‘interlocutory’ orders. Elementary fair procedures as guaranteed by the Constitution and by the European Convention on Human Rights prevents those orders being treated as final orders obtained following the trial of a witness action. Should those orders now be deemed to be final and not interlocutory in the near universal understanding of that term, the observation of the ECJ in Re Eurofoods IFSC Limited (Case C341/04) [2006] Ch 508 at paragraph 67 comes to mind, regarding the proceedings brought in the Parma court: they were ‘in flagrant breach of the fundamental right to be heard which a person concerned by such proceedings enjoys’.”
Those submissions are to be found at Tab 96 of Book 3 of the Greendale booklet. Also included in Tab 96 are written legal submissions on behalf of Geraldine Gilligan in respect of her appeal to the Supreme Court from the judgment of the President of the High Court dismissing the application made pursuant to s. 3(3) of the Act of 1996. In the course of those submissions it was stated at paragraph 9 on page 13 as follows:
“It is submitted that the hearing that took place in front of Judge Moriarty was procedurally flawed in that the second named defendant was not properly represented. Mr. Justice Moriarty specifically made known to the second named defendant that she would not be prejudiced by virtue of the fact that the order was a procedural order and that therefore she did not need legal representation. It is further submitted that the hearing of the President of the High Court was flawed insofar as he was unwilling to take into account the exceptional nature of the hearing before Judge Moriarty having regard to the unique circumstances of the parties before him at the hearing under s. 3(3) of the said Act.”
Geraldine Gilligan in the course of those submissions raised a number of other issues. Thus reliance was placed on the provisions of Order 28, rule 12 of the Rules of the Superior Courts which provides:
“The Court may at any time, and on such terms as to costs or otherwise as the Court may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.”
Relying on the provisions of the Rules it was contended that it was open to the Court to set aside a final order of the Court. In that regard reference was made to Limerick VEC v. Carr [2001] 3 IR 480 and to Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514 amongst other decisions.
Geraldine Gilligan also raised an issue in relation to the denial of her entitlement to the principle of audi alteram partem and she contended that her right in this regard had been denied. An issue was also raised as to fair procedures. Thus it was contended that in the course of an application under s. 3(3) of the Act of 1996 the application is sufficiently wide to enable the concerns raised such as the lack of fair procedures and the failure to hear the other side. It was contended that a s. 3(3) hearing can look at any other injustice and is not limited to the effect of the order but can look to the nature of the order itself.
I appreciate that this is a detailed account of various procedural steps, applications and proceedings brought by the parties following the initiation of proceedings in 1996 leading up to the decision of the Supreme Court in 2008 but it seems to me to be helpful to do so in order to see examine the points raised and arguments made at various stages of these very lengthy proceedings. The current appeals relate to the orders made by the late Mr. Justice Feeney as set out previously. Those orders were made on the basis that the decision of the Supreme Court in 2008 in upholding the making of the orders against the Gilligans pursuant to s. 3(1) of the Act of 1996 in 1996 and 1997 were valid and thus, in order to have any chance of success in the appeals before this Court, it is necessary to demonstrate that the decision of the Supreme Court in 2008 requires to be rescinded or varied to protect constitutional justice. It is for that reason that a series of motions (the Greendale motions) seeking to set aside the Supreme Court decision of 2008 reported in [2009] 2 IR 271 have been brought by the Gilligans. Hence there are two stages to the present appeal. There are the appeals from the decisions of Feeney J. and there are the Greendale motions seeking to set aside the decision of the Supreme Court in 2008.
The Greendale motions
I pause at this stage to consider briefly a number of judgments arising from the decision in the Greendale case. A useful commentary on the Greendale line of authorities is to be found in Delany and McGrath, Civil Procedure in the Superior Courts, 3rd Ed., (Dublin, 2011) at 24 - 55 et seq. Thus at 24 - 56 the authors say:
“A useful summary of the circumstances in which this jurisdiction may be exercised is set out in the following terms by Denham J. in Re Greendale Developments Limited (No. 3):
‘The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.’”
That approach has been followed in a number of other cases. Thus in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412, Denham J. reiterated what had been said in Re Greendale. It was stressed that the jurisdiction arises only in rare and exceptional cases where there has been a clear breach of a constitutional right or justice.
Similarly, in his judgment in L.P. v. M.P. [2002] 1 IR 219, Murray J. in the Supreme Court stated (at p. 229):
“The judgments of this court in In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R 514 and Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 establish that a final order may be rescinded or varied where a party discharges the burden of establishing that there are exceptional circumstances showing that such a remedy is necessitated by the interests of constitutional justice.”
As the authors note at 24 - 61:
“Murray J. added that the courts have an inherent jurisdiction to amend or set aside a final order in exceptional circumstances where it is established that there has been a fundamental denial of justice through no fault of the parties concerned and when no other remedy such as an appeal is available.”
It is clear from the authorities referred to above that a judgment which is a final order will only be set aside in rare and exceptional cases and the circumstances relied on must show that it is necessary either in the interests of constitutional justice or to vindicate or protect a constitutional right that a final order be set aside. Murray J. in the course of his judgment in L.P. v. M.P. added that the exceptional circumstances which could lead to the inherent jurisdiction of the Court being exercised must constitute “something extraneous going to the very root of the fair and constitutional administration of justice” (at p. 230). It is in the light of those principles that one has to consider whether the judgment and order of the Supreme Court in 2008 comes within the exceptional circumstances which necessitate its setting aside by reason of the interests of constitutional justice. I will refer again later to these judgments and to the important principles set out therein.
The judgment of the Supreme Court in 2008
Geoghegan J., in the judgment of the Court, embarked on a detailed review of the Act of 1996 together with the case law on that Act. It would be useful to refer in detail to a number of passages from that part of the judgment. The review of the case law commences at paragraph 17 and I propose to refer briefly to paragraph 23 of the judgment at page 286. Having referred to the judgment of Fennelly J. in the case of F. McK v. AF (Statement of Claim) [2002] 1 IR 242, Geoghegan J. referred to his own judgment in that case and said as follows:
“23. My judgment was along similar lines and heavily relied on the two judgments of Keane C.J. cited above. However, I will cite one particular passage from it because of what I perceive as some confusion as to what has been meant by the expression ‘final order’ with reference to s. 3. I say the following, at pp. 245 to 246: -
‘It is abundantly clear, therefore, that orders under s. 3 are final orders even though they can be discharged and are not just temporary orders. No significance is to be attached to the name which the Act has given them, except possibly to the extent that it might be reasonable for the rules-making committee to provide for procedures whereby the plaintiff could actually get into court shortly after the initiating document issued, a result which is achieved by the ordinary interlocutory injunction procedures. This would happen if the Rules provided that the procedure was to be by originating motion on notice or indeed by special summons. But in the absence of any special rules or an order of the High Court permitting the procedure by special summons, the plaintiff must proceed as he has done by plenary summons.’”
Geoghegan J. then continued:
“24. That passage makes it clear what I, and what I believe the court, in other cases has meant by ‘final order’ in this context. It is an order which completes the s. 3 proceedings, though under s. 3(3) it may be subsequently varied or discharged. It automatically becomes discharged if an order is made more than seven years later determining a s. 4 application.”
Geoghegan J. then goes on to refer to what he describes as “the definitive judgment on the structure of the Act of 1996, namely the judgment of Keane C.J. in Murphy v. M.C. [2004] IESC 70 (Unreported, Supreme Court, 8th March, 2004) in which Keane C.J. refers to the earlier decision in the case of F.McK v. F.C. (Proceeds of Crime) [2001] 4 I.R. 521. at pp 8 to 9:
It is the contention of the Gilligans that the Supreme Court in its judgment of 2008 fell into error and that it should be set aside. They point to paragraph 30 of the judgment in which the order made by Costello P. on the 5th December, 1996 is described as “what can only be categorised as a temporary s. 3 order” by virtue of the fact that it was expressed on its face to be in force until Thursday, the 19th December, 1996 albeit that it was stated to be an order made pursuant to s. 3. Geoghegan J. in paragraph 29 noted that while there was no specific provision in the Act of 1996 for such form of order he could not see any reason why it should not be made where appropriate. Geoghegan J. went on to refer in paragraph 30 to the order made by Costello P. on the 19th December, 1996 where again an order was made pursuant to s. 3 of the Act of 1996 and the motion was then “adjourned generally with liberty to re-enter”. Criticism is then made of the following part of paragraph 30 in which Geoghegan J. made the following observation:
“I have deliberately put the operative part of the order in quotation marks because it would appear from subsequent documentation that there has never been clear unanimity even between the parties as to whether the date of that order or the date of a subsequent s. 3 order made by Moriarty J., and to which I will be referring, should be regarded as the commencement date for the purpose of calculating the seven year period. In the event, I do not think that anything turns on this question. If I had to decide it, I would conclude that the operative s. 3 order is the order made by Moriarty J. It is not clear why Costello P. allowed the motion to stand adjourned with liberty to re-enter. It would seem to suggest that he saw the potentiality at least of unfinished business. It is possible that he was informed that more accurate descriptions of the properties might have to be given at a later date which in fact happened or it could be related to the fact that according to the order, there was no attendance in court on behalf of the third defendant. At any rate, I fail to see that any problem arises on this question.”
Criticism of this part of the judgment is focused on the fact that subsequently in paragraph 48, Geoghegan J. observed that “it would have been contrary to the provisions of the Act of 1996 to have made a whole series of temporary orders”. It is contended on behalf of the Gilligans that despite the finding that there was no provision in the Act for the making of a “temporary s. 3(1) order” the Court did not go on to consider the consequences which flowed therefrom in the context of the Gilligans. Geoghegan J. also said in the course of that paragraph:
“At the time of the orders of Costello P. and Moriarty J., the primary concern of the defendants was the obtaining of an appropriate s. 6 order that would enable them pay their lawyers. Their lawyers did not need the Supreme Court to tell them in even a single, never mind several judgments, that an application could be brought under s. 3(3) and indeed that ownership issues could be ultimately reopened in a s. 4 application. But not only was no long term injustice going to be caused by a s. 3 order being made at the time it was made but in fact, in my view it would have been contrary to the provisions of the Act of 1996 to have made a whole series of temporary orders. Sections 2 and 3 provide for freezing procedures intended to be carried out quickly but with the safeguard that an intermediate application can be made. The opening words of s. 3(1) refer to an application being made to the court and it appearing to the court ‘on evidence tendered by the applicant’ that a person is in possession or control of certain property, etc. This does not mean, of course, that a person interested cannot resist an order under s. 3(1) but the absence of means to pay lawyers is not a reason why the court should delay in making the order. Section 3(3) is deliberately enacted with a view to preventing any error or injustice. There are passages in the skeleton submission filed on behalf of the plaintiff with which I particularly find myself in agreement. It is pointed out, for instance that ‘no appeal against the s. 3 order was brought at the time that it was made’.”
Complaint is also made in the submissions on behalf of the Gilligans as to what is described as speculation as to events that had occurred in the early part of the proceedings before Costello P. and Moriarty J. and in particular in relation to what occurred on the 16th July, 1997. The point was made that in dealing with the matter in this way the Court did not hear any argument or evidence as to the circumstances in which the s. 3 order had been “wrongly made”. Specific reference in this regard was made to paragraphs 33 and 37 of the judgment of Geoghegan J. It is worth recalling at this point that the Court was dealing with events that had occurred some eleven years earlier. Geoghegan J. noted in paragraph 35 of his judgment that:
“It was heavily suggested at the hearing of this appeal that in making the order of the 16th July, 1997, Moriarty J. was not treating it as a final s. 3 order but was under the misapprehension (a misapprehension which it is suggested counsel on both sides were under also) that before a s. 3 order would be finally made there would be some kind of plenary hearing.”
He went on to note and I think it is important to bear this in mind as follows at paragraph 36:
“The two most important items before this court now involve potential attacks on that order of Moriarty J. The appeals before this court do not involve requesting the court to interpret the order differently from the express terms of the order unamended. Rather, the main appeal before this court is against orders of Finnegan P. in an application under s. 3(3) of the Act of 1996 to have the order of Moriarty J., made on the 16th July, 1997, discharged in the interests of justice.”
He went on to observe that if those appeals were dismissed the Court was being asked to extend the time for appealing against that order of Moriarty J. I would pause to observe that it is important to bear in mind the issues that were in fact before the Supreme Court in those appeals.
The other principal complaint made by the Gilligans against the judgment is the finding (see paragraphs 49 and 51 of the judgment) that “no conceivable injustice could arise” in not extending the time for an appeal against the s. 3 order as the issues between the parties could be dealt with in a s. 4 application or alternatively in an application pursuant to s. 3(3). The point is made on behalf of the Gilligans that in a s. 3(3) hearing the burden of proof would rest on the Gilligans and further that there was no consideration by the Supreme Court that the lapse of time since the s. 3 order had been made would have an effect on the evidence available to them. It was contended that the lapse of time would have impaired the availability of evidence available to them.
Again I think it is important to bear in mind precisely what was said by the Supreme Court. At paragraph 39 of the judgment in dealing with the approach that could be taken by the Gilligans, Geoghegan J. had this to say:
“39. A major difficulty in this case is that whereas the defendants or some of them may well have believed and may well have been advised that they could have a plenary hearing whereby issues of ownership could be litigated, it does not follow that they had addressed their minds to the precise stage at which this would be done. It could be done by way of defence of an application under s. 3(1) but it could also be done equally effectively by way of an application under s. 3(3) to say nothing of ultimate rights under s. 4. Indeed, there may be some evidence to suggest that at one stage a receivership application was going to be used, if possible, as the vehicle for opposition. Discovery was sought for the purposes of that application. It came before O'Higgins J. who did not consider it was relevant to that application. What is absolutely clear, however, is that from a very early stage, i.e. , the judgment of Murphy J. in these very proceedings, the legal advisers understood or ought to have understood the structure of the Act of 1996 and the nature of the orders to be made under it.”
The Court then went on to deal with the main appeals which were those against the orders of Finnegan P. It should be remembered that what was at issue before Finnegan P. was an application pursuant to s. 3(3) for an order discharging the order of Moriarty J. made on the 16th July, 1997 on procedural grounds. In other words, the application before Finnegan P. was not to discharge the order on the basis that the properties at issue had not been acquired from the proceeds of crime but rather was an application to resist the making of an order on what might be described as “judicial review” grounds. That being so, it is difficult to understand how the Supreme Court can be criticised for not dealing with issues which did not arise on the appeals such as the effect of lapse of time on the evidence available to them on a s.3 (3) hearing.
For completeness, I think it would be helpful to refer to part of paragraph 43 of the judgment of Geoghegan J. in which he made the following observation:
“It may well be that Moriarty J. in making the s. 3 order believed that even within the framework of s. 3(1) it was a temporary order and that at some later stage there could be a plenary hearing before some kind of final s. 3(1) order was made. He may or may not have been encouraged in that view by whatever he was told by counsel for the plaintiff but I would have a completely open mind on that aspect of the matter given the subsequent correspondence to which I have already referred and subsequent affidavit evidence emanating from the plaintiff. It would always have been understood that an application could be brought under s. 3(3) and, of course, there could ultimately be a s. 4 application. It is difficult to be sure, therefore, what exactly Moriarty J. meant or whether possibly he himself misunderstood whatever he was told about the statutory procedure. I am not going to concern myself further with this problem because as I read the transcript of the proceedings before Finnegan P., he was prepared to assume that Moriarty J. may have believed and indeed may have been encouraged to believe that there would be a plenary hearing before an operative order under s. 3(1) was made. I am prepared to approach the appeal in the same way because, as I will be explaining, I am satisfied that it does not affect either the outcome of the appeal or the issue which I will be dealing with later on in the judgment as to whether an order should be made extending the time for appealing the order of Moriarty J. It is not in dispute and cannot be in dispute that an operative order under s. 3(1) was and remains in force. By ‘operative’ I mean, of course, the order contemplated by s. 3(1) of the Act of 1996 with the resultant lapse of time for the purposes of the s. 4 application. As I have already indicated, there has been some doubt thrown on whether the time ran from the said order of Moriarty J. or from the temporary order though purporting to be made under s. 3 by Costello P. in the previous November. Nothing turns on that now as the period has run in either event. I have already expressed the view that the operative s. 3 order which commenced the time period was the order made by Moriarty J. This appeal relates to the issue of whether that order ought to be set aside on grounds of ‘injustice’, the alleged injustice being procedural. I am quite satisfied, after careful consideration of the matter, that Finnegan P. was correct in his view that a s. 3(3) application for that purpose did not lie. I do not necessarily wholly agree with everything the former President said in the course of his interjections and judgment but I am convinced that he is correct in his conclusion and his basic reason for it.”
Geoghegan J. then quoted extensively from the ex tempore judgment of Finnegan P. Finnegan P. having concluded that it is not the intent or effect of s. 3(3) to give the Court a power or jurisdiction to look at the process whereby the s. 3 order was obtained “and if dissatisfied with that, interfere with it”. He expressed the view that that was not the intent or effect of s. 3(3). In those circumstances Geoghegan J. continued that he could find no fault with that interpretation of the section and that it was clearly correct. It was never intended as he said by the Oireachtas that High Court judge could judicially review another High Court judge pursuant to s. 3(3) because in reality that would be the defendants’ interpretation.
In effect the Gilligans have sought an order on foot of the Greendale motions that this Court should set aside and/or vacate the judgment and order of the Supreme Court delivered herein on the 19th December, 2008 and have further sought a declaration that on the 16th July, 1997 no trial took place in the proceedings and further that the only order pursuant to s. 3 of the Act of 1996 was that made by the High Court on the 5th December, 1996.
It is important to remember that, as can be seen from the issue paper set out previously, that when this matter was before Finnegan P., the case being made by the Gilligans was that the relevant final order was that made on the 16th July, 1997 by Moriarty J. Accordingly, the position before Finnegan P. was argued on that basis and subsequently while Geoghegan J. did express the view that there had never been “clear unanimity even between the parties” as to the relevant operative order (see paragraph 30 of the judgment) it is difficult at this remove to deal with the matter on the basis that the operative order was made on the 5th December, 1996 as is now contended by the Gilligans. It is part of the Gilligans contention that as there had previously been two s 3 orders made, Moriarty J. had no jurisdiction to make a further s. 3 order on the 16th July 1997.
As has been pointed out previously, the Act of 1996 is an unusual piece of legislation providing for the confiscation of property acquired by means of the proceeds of crime. Geoghegan J. in his judgment described the unique scheme of proceedings provided for under the Act. There may have been some initial confusion as to how the Act was to be operated but as Geoghegan J. pointed out (paragraph 18) as long ago as the 13th May, 1997 Murphy J. in his judgment in these very proceedings noted that “the summons [in these proceedings], even as amended, does not envisage a plenary hearing”. Since the decision in the case of F. McK v. F.C. referred to above it has been crystal clear that an order pursuant to s. 3 is a “final” order. It is also important to remember what is meant by the phrase “final order” in this context. As Geoghegan J explained in a passage previously referred to in the course of this judgment, a s. 3 order is an order that completes the s. 3 proceedings (i.e., the s. 3(1) proceedings) but such an order can be varied or discharged under s. 3(3). Further, such an order is automatically discharged if a s. 4 order is made more than seven years later. As can be seen from the extensive history of these proceedings, the making of a s. 3 order does not terminate the proceedings.
A number of other points were made by Geoghegan J. to which reference should be made. In considering the application for leave to extend the time in which to appeal from the order of Moriarty J. of the 16th July, 1997, he commented at para. 48 of the judgment that it was not necessary for the Supreme Court “to tell them in a single, never mind, several, judgments” that an application could be brought under s. 3(3) and that ownership issues could be ultimately re-opened in a s. 4 application. I have referred previously at p. 53 of this judgment to para. 48 in which Geoghegan J. concluded by noting as pointed out by CAB that ‘no appeal against the s. 3 order was brought at the time that it was made’.”
Geoghegan J. then dealt with the application for an extension of time for appealing against the s. 3 order of Moriarty J. He made the comment at the end of paragraph 49 et seq as follows:
“To return to the time limit question, the position would seem to be quite clear. Irrespective of whether there was any confusion or not in relation to the order of Moriarty J., an application to extend the time could still have been brought long ago. Over many years now the structure of the Act of 1996 has been explained by this court.
It would serve no purpose to extend the time now.”
He went on to express the view that an application under s. 3(3) could still be brought and that “that might well be a more appropriate remedy than raising the questions in the s. 4 application” but as he said that was a matter for the Gilligans’ advisers. Thus he concluded that he would refuse an order for an extension of time to appeal the order of Moriarty J. together with extensions of time in respect of the earlier orders of Costello P. (for the same reasons).
Geoghegan J. returned once again to the structure of the Act of 1996. Having considered the nature of applications brought under s. 3(1) and having observed that (at para. 52):
“[I]t would not have been intended or contemplated that there would be endless adjournments or indeed temporary s. 3 orders which were not provided for by the Act of 1996 while perhaps a year later or more, the respondent would be in a position to challenge the evidence relied on by the applicant. It was easily foreseeable, in my view, that such delay might not just be a consequence of proof gathering such as discovery, etc. It might be even more likely be related to the necessity or perceived necessity of the respondent to put himself or herself in funds to pay for lawyers. This might require an order under s. 6. That is precisely part of the reason for some delay in this case.”
He then went on to make a further observation which seems to me to be of some importance. At paragraph 53 et seq he said:
“This brings me to the rest of the machinery. For that very reason and with an eye on the Constitution, the Oireachtas enacted s. 3(3) which enabled the respondent in an application under that subsection and in a situation where an order under s. 3(l) was already in force to apply to a court to have that order discharged or varied. Such an order could be made if such respondent satisfied the court that the property or a specified part of it was property to which paragraph (I) of subs. (1) applies or in other words that the property frozen or part of it was not directly or indirectly proceeds of crime or if he satisfies the court that the order under s. 3(1) ‘causes any other injustice’. In the proceedings seeking a disposal order under s. 4 there is yet another opportunity given.
None of this was seriously disputed by counsel for the respondent at the hearing of the appeals and motions though he did, at times in a vague kind of way, reserve his position. At any rate, correspondence and affidavits emanating from the plaintiff seem to clearly accept that a remedy under s. 3(3) was available to any of the defendants. . . .”
Geoghegan J. concluded that there could be no question of estoppel or abuse of process by the Gilligans bringing an application under s. 3(3) of the Act of 1996 in circumstances where as he put it the substantive issues, “if in fact they arise, as to whether the properties are the proceeds of crime or not have never in fact been aired in court by the defendants with a view to the plaintiff’s claim being challenged”.
Thus the way was left open for the Gilligans to bring applications pursuant to s. 3(3) of the Act of 1996 as they did, in fact, do. Those were the applications heard by Feeney J. which are the subject of appeal to this Court.
Submissions of the Gilligans on the Greendale motions
The Gilligans seek to have the judgment of this Court in these proceedings of the 19th December, 2008 set aside. The issues which the Gilligans say should be revisited are as follows:
(a) Whether the High Court had power to make temporary s. 3 orders.
(b) If not what relief should have been granted by the Court? If yes, whether they were properly made and/or whether such findings by the Court were improperly made due to the fact that
(c) Which of the three s. 3 orders was operative, in circumstances where there was a finding by the Court (which finding is not challenged) that such orders were final in nature and not interlocutory (properly so called).
(d) Whether the Supreme Court should have set aside the High Court order of 16th July, 1997 and the previous s. 3 orders made on the 5th December, 1996 and the 19th December, 1996.
The finality of judgments and orders
In order to consider whether or not a judgment or order of the Supreme Court can be revisited for the purpose of setting aside a judgment or order previously given it is necessary to consider the circumstances in which such a final judgment or order of the Supreme Court can be set aside. The starting point for such a consideration must be Article 34.5.6° of the Constitution (formerly Article 34.4.6° until the enactment of the Thirty-third Amendment to the Constitution (Court of Appeal) Act 2013) which provides that the decision of the Supreme Court shall in all cases be final and conclusive. It goes without saying that, as a general proposition, decisions and orders made in the course of or at the conclusion of legal proceedings cannot be revisited otherwise than in the case of an appeal or in cases where a matter can be revisited to correct an error under the “slip” rule. A party who has been unsuccessful in their proceedings is not entitled to come back to court to argue the case again. To permit that would be unfair to the successful party and would mean that there would be no end to litigation. However, it has been recognised that there may be exceptional and rare circumstances which give rise to the possibility of a decision or order being revisited. It is therefore necessary to consider if the circumstances in which the Supreme Court has jurisdiction to vary or set aside an earlier order can apply to the circumstances relied on by the Gilligans on foot of the Greendale motions in this case.
I have already in the course of this judgment referred briefly to the decision of the Supreme Court in the case of In Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514 and to the passage from the judgment of Denham J. (as she then was) at page 544 and I think it would be helpful to refer to that passage again in which it was stated:
“The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”
It is clear from that judgment that the jurisdiction to set aside an order previously made will only be exercised very exceptionally. There are other circumstances in which it has been recognised that a final order can be set aside such as circumstances involving fraud (see for example, Tassan Din v. Banco Ambrosiano SPA [1991] 1 I.R 569). Equally, a Court has jurisdiction to correct an accidental error or slip in a judgment or an error in an order as mentioned above. Speaking of now Art. 34.5.6° of the Constitution, Murray C.J. in a ruling of the Court delivered on the 26th March, 2009 in The People at the Suit of the Director of Public Prosecutions v. Michael McKevitt [2009] IESC 29 observed (at para. 4):
“That is a clear constitutional statement that the decisions of this Court are in principle final. Prima facie this Court has no jurisdiction to hear an application to set aside a decision which finally determines proceedings before it. Very exceptionally the Court has jurisdiction to review a decision in the special circumstances referred to in the case-law summarised below.”
Denham J. in considering the issue of finality of judgments referred in her judgment In Re Greendale Developments Limited (No. 3) at page 539 to the importance of finality in respect of judgments. She observed:
“If an applicant seeks to have the court exercise its jurisdiction to protect constitutional rights there is also a very heavy onus of proof. The court has to balance the application against the jurisprudence, of the common law and the Constitution, of the finality of an order. Whilst the Supreme Court is guardian of constitutional rights, it must also protect the administration of justice which includes the concept of finality in litigation.”
She went on to point out that the Supreme Court has jurisdiction and a duty to protect constitutional rights. The jurisdiction to set aside a final order of the Court was again considered in the case of Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I.R. 412. The facts of that case were that a decision of the High Court of the 6th February 1997, was appealed, the appeal was heard and dismissed by a Court consisting of Hamilton C.J., Barrington J. and Keane J. Subsequently the applicants in relation to the matter before the Court applied to have the judgment of the Supreme Court set aside on grounds of objective bias alleging that Barrington J. and Keane J. had links with the respondents such as to give rise to a perception of bias. In the case of Barrington J., he had acted for the fifteenth respondent in two sets of proceedings relating to the Tara respondents in one case and the applicants in another. He had also advised on legislative reform in the area of mineral mining. Further, he had acted against the Tara respondents in a case and had prepared two sets of advices for the first respondent. Prior to his appointment to the Bench, Keane J. had advised the first respondent as to an exempted development under the planning legislation and had undertaken to appear for the first respondent in an anticipated hearing before An Bord Pleanála. In fact he did not do so as he had then been appointed to the High Court. It was contended on behalf of the applicants in that case that objective bias arose from these connections between the judges and the respondents. It is significant to note that the issue which arose was one which was not an issue in the case but was a matter which was extraneous to the hearing in the High Court and the Supreme Court. The Court in that case reiterated the approach taken in the decision in the case of In Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514.
McGuinness J. in the course of her judgment in Bula Limited v. Tara Mines Limited (No. 6) at page 478 said as follows:
“I respectfully agree with the analysis of this court's jurisdiction as set out by Denham J. and Barron J. in In re Greendale Developments Ltd. (No. 3) [2000] 2 I.R. 514. In summary, whilst very great weight must be given to the principle of finality and to the provisions of Article 34.4.6°, this court has a jurisdiction to review and if necessary to set aside what appears to have been a final order in circumstances where the court's duty to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the applicants to establish that such exceptional circumstances exist.”
Two things are clear. One is that great weight must be given to the finality of judgments. It goes without saying that parties to litigation are entitled to know that a final decision made by a court on a particular point cannot be re-opened by a party dissatisfied with the outcome of that final order. Nevertheless, it is also clear that in exceptional circumstances involving an issue of constitutional justice, the matter may be re-opened. In that context it is worth recalling what was said by Murray C.J. in the McKevitt case referred to above. He said at page 4 of the judgment:
“There are two particularly important factors to be addressed when considering whether this Court has, in the circumstances of a particular case, jurisdiction to consider a re-opening of its decision. Firstly the application must patently and substantively concern an issue of constitutional justice other than the merits of the decision as such. Secondly, the grounds of the application must objectively demonstrate that there is a substantive issue concerning a denial of justice in the proceedings in question consistent with the onus of proof on an applicant.”
It would be helpful to refer to one other judgment on the nature of the exceptional jurisdiction to set aside a final judgment or order. That is the judgment of Murray J. (as he then was) in L.P. v. M.P. [2002] 1 IR 219. The principal issue in that case concerned the jurisdiction of the Supreme Court to consider an order of the High Court which was final and conclusive by virtue of the provisions of the Courts of Justice Act 1936 (the Act of 1936) and therefore not appealable. However, an issue also arose as to the circumstances in which a final order might be challenged in circumstances where the respondent instructed his counsel that he did not wish to proceed with his appeal before the High Court judge in the light of preliminary observations made by that judge. It was submitted on behalf of the respondent that in making the relevant observations, the trial judge had gone so far as to demonstrate a pre-judgment of the issue of maintenance in the family law proceedings before any witness had been called by the respondent. In those circumstances the High Court judge was asked to disqualify himself from hearing the case further in respect of the maintenance issue and the High Court refused to do so. The respondent then declined to continue with his appeal concerning maintenance. He then sought to appeal the matter to the Supreme Court notwithstanding the provisions of the Act of 1936 and it was also sought that the Supreme Court give a determination that the order of the High Court could not be allowed to stand and should be set aside and a rehearing ordered. In those circumstances, Murray J., in the course of his judgment, reviewed the decisions of the Supreme Court in the cases of In Re Greendale Developments Limited (No. 3) referred to above and the decision in Bula Limited v. Tara Mines Limited (No. 6) [2000] 4 I. R. 412 referring in particular to the passage from the judgment of McGuinness J. to which I have already referred. Murray J. at page 229 of his judgment then continued:
“It follows from the foregoing judgments that the courts have an inherent jurisdiction to amend or set aside a final order in exceptional circumstances where those circumstances clearly establish that there has been a fundamental denial of justice through no fault of the parties concerned and where no other remedy, such as an appeal, is available to those parties. Since the court is not in this case concerned with the merits of the contention made on behalf of the respondent that there was such a denial of justice in this case, I do not propose to consider further the criteria according to which such a jurisdiction may be involved. I would, however, just add that such exceptional circumstances could not include rulings made in final instance by a court concerning such matters as the admissibility in evidence, even if they have implications for the manner in which a party was allowed to present its case. Rulings on questions of law and procedure are matters for judicial appreciation and discretion which are inherent in judicial proceedings and are properly governed by the principle of finality in courts of last instance. Otherwise, I confine myself to saying that the exceptional circumstances which could give rise to the inherent jurisdiction of the court must constitute something extraneous going to the very root of the fair and constitutional administration of justice.”
It is important to emphasise the observations of Murray J. to the effect that the exceptional circumstances which could give rise to the inherent jurisdiction of the Court must constitute something extraneous going to the very root of the fair and constitutional administration of justice.
Discussion
What then must be established by the Gilligans in order to bring this matter within the Greendale jurisprudence? First of all it is contended that there is an “incompleteness” to the judgment of Geoghegan J. It is said that there were a number of express findings made in the course of the judgment which undermine the s. 3 orders made herein but that the Court failed to proceed to explore the consequences of those findings. It should be recalled that the appeal before the Supreme Court was principally concerned with the appeal from the decision of Finnegan P. I have already set out the issue paper agreed by the Gilligans which was before Finnegan P. in which it will be seen that the focus before Finnegan P. and thereafter on appeal to the Supreme Court was the s. 3 order made by Moriarty J. Now it is contended in the written submissions on behalf of the Gilligans that “There is no provision in the [Act of 1996] for the making of temporary s. 3 orders or for extending the period that a s. 2 order remains valid beyond the short period provided for in the Act of 1996”. The latter point is relied on by the Gilligans as constituting an extraneous matter “going to the very root of the fair and constitutional administration of justice”.
It is important to emphasise that the purpose of a Greendale application is not to permit an aggrieved party to argue a point or issue that could have been raised previously which was not in fact raised or indeed, to reargue a point or issue previously raised. If the Gilligans wanted to challenge the making of the order of Moriarty J. by reference to the fact that there had already been two previous s. 3 orders made, there was no reason why that could not have been done years ago. The argument in this respect is predicated on the finding in the McKenna case 2002 (F. McK. v. A.F. [2002] 1 IR 242) in which it was held by the Supreme Court that an order pursuant to s. 3 of the Proceeds of Crime Act 1996 was a final order and not an interlocutory order and on the comments of Geoghegan J. at para. 48 of the 2008 judgment that it would have been contrary to the provisions of the Act of 1996 to have made a whole series of temporary s. 3 orders. It should be borne in mind that the focus of the McKenna case was on the terminology used in the Act of 1996 to describe an order made under s. 3 as an interlocutory order, being an order which in the ordinary meaning of that word, would be understood as an order which is not a final order as was explained by the Supreme Court in the earlier case of McK. v.F.C. [2001] 4 I.R. 521 (at p. 523):
“Given that statutory framework, it is evident that, in a sense in a practical way, the interlocutory order or the application for an interlocutory order is the trial of the real issue in the case and that obviously renders the proceedings of an unusual nature.”
Bearing in mind the meaning of a s. 3 order as expressed in a number of judgments as representing the “trial of the real issue in the case”, it is undoubtedly the case that on the 5th December, 1996 there was no trial of the real issue in the case particularly when one bears in mind the fact that the only member of the Gilligan family before the Court was Geraldine Gilligan and she was not represented. It is not unreasonable to infer that the matter was adjourned to allow time for other members of the Gilligan family to be present or represented before the Court. On the 19th December, 1996 a further s. 3 order was made and again it is fair to say that there was no trial of the real issue on that occasion. A series of further applications were made on behalf of Mr. Murphy on that date, and those applications were adjourned to January and in January of 1997, applications were made by the Gilligans pursuant to s. 6 of the Act of 1996 in relation to the question of funding for legal representation. That led to an order which was the subject of the first appeal to the Supreme Court in relation to these proceedings by the Gilligan family. In the circumstances, no one could have been under any misapprehension that the making of orders on the 5th and 19th December, 1996 were understood in any sense to have been made following the trial of the real issue in the case. It is for that reason that Geoghegan J. in his judgment referred to the s.3 order of the 5th and 19th December 1996 as being temporary and further opined that while there was no specific provision in the Act for that particular form of order, he could not see why it should not be made where appropriate. (See para. 29 of his judgment.) In those circumstances, I fail to see how it could be suggested that the making of s. 3 orders in circumstances where the s. 3 applications were adjourned to enable all of the Gilligans to be present or represented before the court was contrary to the provisions of the Act of 1996. Clearly, the making of s.3 orders which were then adjourned for further hearing did not create any injustice for the Gilligans. On the contrary, the adjournments on the 5th December and the 19th December 1996 could only have been for their benefit. It must have been patently obvious to all concerned that the orders made on the 5th and 19th December 1996 were not intended to be “final” orders in the sense in which the description of the interlocutory order made under s. 3 is now understood. That being so, I see no basis on which it could be suggested that the making of the orders made on the 5th and 19th December 1996 deprived the Court of jurisdiction to make the order on the 16th July 1997. Although Geoghegan J. acknowledged that there was no specific provision in the Act providing for the making of temporary s. 3 orders, equally, it must be observed that there is no specific provision in the Act prohibiting the making of such an order.
That brings me to the application on the 16th July, 1997. It would not be unfair to say that all parties to these proceedings viewed that order as being the operative s. 3 order for many years and proceeded on that basis. The decision of Finnegan P. was in respect of a challenge to the order of Moriarty J. and the appeal to the Supreme Court from the judgment and order of Finnegan P. was predicated on that basis.
On the 16th July 1997, oral evidence was heard in accordance with s. 8 of the Act of 1996. The Court was clearly satisfied that a prima facie case had been made out to establish that an order pursuant to s. 3 should be made against all of the Gilligans. It is necessary to recall what was previously stated by Mr. Paul McNally, solicitor for Mr. Gilligan, in an affidavit sworn by Mr. McNally on the 30th September, 2002 in respect of a motion in which it was sought to have the orders made against Mr. Gilligan discharged on the basis that they were “made (and unsuccessfully resisted) on the basis that the s. 3 application was truly interlocutory and not in substance the trial of the action”. The application was grounded on Mr. McNally’s affidavit in which he said that when defending the application under s. 3:
“It was decided not to join issue on the facts, as they could be disputed at the trial, i.e. the s. 4 application when it was anticipated that the plaintiff would be obliged to furnish a fully particularised statement of claim my client could get discovery of relevant documents, could call witnesses, could cross-examine the plaintiff’s witnesses, could subpoena witnesses and documents and objected (as I see) to inadmissible hearsay (in the same way as all other defendants in proceedings commenced by way of plenary summons).”
The core of the complaint made by the Gilligans is that they have been deprived of a trial of the issue as to whether the property concerned was directly or indirectly the proceeds of crime. Clearly John Gilligan and his solicitor had decided not to contest the making of the s. 3 order at the hearing on the 16th July 1997. None of the other members of the Gilligan family contested the making of the s.3 orders at that time. That was their right. They did not have to do so. The Gilligans, if they had sought to, could have cross-examined CAB’s witnesses on the 16th July, 1997. It may be that they were of the view that it would be inappropriate to do at that stage. They had not yet applied for discovery and may have felt that their ability to cross-examine effectively could have been hampered by the absence of discovery. It may be the case that they were not in a position to call evidence of their own at that time with a view to demonstrating that the properties at issue were not acquired with the proceeds of crime. There may have been good tactical reasons for not challenging the making of the s.3 orders. Whatever the reason may have been, the fact of the matter is that the application for s.3 orders made on the 16th July 1996 was not opposed by the Gilligan family.
Geoghegan J. in the course of his judgment in 2008 described the ways in which a party subject to a s. 3 order could challenge the making of that order. In the first instance, it can be challenged at the s. 3 hearing itself. If parties are not in a position to do so at that time or do not wish to do so at that time, an opportunity is then given to challenge the making of such an order in the course of an application pursuant to s. 3(3) of the Act of 1996. Finally, a further opportunity is given to a party affected by a s. 3 order to challenge the making of that order at a disposal hearing pursuant to s. 4 of the Act of 1996. Having regard to the serious consequences of the making of a s. 3 order in respect of the property rights of an individual guaranteed under the Constitution, the legislature has provided a series of opportunities to allow someone to challenge the making of a s. 3 order. That is to say nothing of the right of appeal. A s. 3 order can always be appealed by an aggrieved party.
It was submitted on behalf of the Gilligans that there may have been some element of confusion on the part of those involved in these proceedings at their commencement by virtue of the description of an order pursuant to s. 3 as an interlocutory order. However, even before the McKenna case, the nature of and structure of the Act was described in some detail by Murphy J. in the Supreme Court decision in these very proceedings as previously set out in the course of this judgment.
Despite the clarification as to the nature of a s. 3 order in the McKenna case, no attempt was made by any of the Gilligans to appeal the s. 3 orders in the light of that decision. It was only much later that an application was made to seek to extend the time within which to appeal from the orders of Moriarty J. (but not those of Costello P.) which application was refused by this Court in the course of the 2008 decision at issue in these proceedings.
A further point made by the Gilligans is that, by virtue of the fact that there was not a trial of the real issue in the case at the s. 3 hearing, they have been put in an unfair position because on a s. 3(3) application, the onus is on them to establish that the properties acquired by them at issue in the proceedings are not the proceeds of crime. To my mind this argument is misconceived. Once there is prima facie evidence in the course of a s. 3 hearing that the property at issue is or was acquired by the proceeds of crime, then the onus shifts to the other side to disprove the fact that the property concerned is or was acquired by the proceeds of crime. So whether the evidence put forward by CAB is challenged at a s. 3 hearing or at a subsequent s. 3(3) hearing, the onus is always going to shift to the respondents to disprove the fact that the property was acquired with the proceeds of crime. Thus there is no procedural disadvantage suffered by the Gilligans by virtue of the fact that they did not challenge CAB’s evidence at the hearing before Moriarty J.
It is useful to recall the point made by Geoghegan J. (at para 11 of his judgment) as to the unusual nature of ss. 3 and 4 of the Act of 1996 “in so far as they confer several distinct opportunities for an aggrieved person to challenge a determination or, in the case of proceedings under s3 (1), a proposed determination that the relevant property constitutes the proceeds of crime.” This is an important aspect of the Act of 1996 which gives those affected by the making of s. 3 orders who for one reason or another may not be in a position to challenge the making of a s. 3(1) order when made the opportunity to challenge such order at a number of different stages in the proceedings.
When all is said and done it seems to me that the Gilligans have failed to establish an entitlement to revisit the judgment of this Court in 2008 by reason of any matter that would bring them within the Greendale jurisprudence. The remedy under a Greendale application has been described as one that can only arise in rare and exceptional cases. Murray C.J., as he then was, observed that it should be something extraneous to the proceedings themselves. Thus, in a number of cases such as the Bula decision referred to above, the question that arose was something outside the proceedings, namely an allegation that there was bias on the part of some members of the Court. In this case what is relied on is an argument that the proceedings throughout have been flawed because of the argument that the Gilligans did not have the benefit of a trial of the issue at the s. 3 hearing and the further submission that there was no jurisdiction to make s. 3 orders on the 16th July, 1997, given the orders that had previously been made on the 5th and 19th December, 1996. However, that is to misunderstand the nature of the Act and its structure. The Act allows for the confiscation of property belonging to citizens. It is quite clear that an interference with the property rights of an individual could not take place without appropriate procedures and Constitutional safeguards. The Act of 1996 provides a number of opportunities for a party affected to challenge the basis upon which property may be confiscated. Even assuming that the Gilligans were denied a trial of the real issue in the case at the s. 3 hearing before Moriarty J., (something which cannot be the case in circumstances where the order was not opposed) there was an entitlement on their part to appeal the order of Moriarty J or to bring an application pursuant to s. 3(3) of the Act of 1996. It is not without significance that in this case the Gilligans only sought to appeal from the order of Moriarty J. at a very late stage in the proceedings, many years after the order had been made. Geoghegan J., in the course of his judgment, was very clear in pointing out that the Gilligans were still entitled to bring an application pursuant to s. 3(3) given that the application that had previously been made under that section was more in the nature of a judicial review of the decision of Moriarty J. as opposed to simply being a challenge to the making of the order by producing evidence demonstrating that the property concerned was not the proceeds of crime. It must be reiterated that the Greendale jurisprudence does not exist to allow a party to re-argue an issue already determined.
Much has been said about the misapprehension under which the Gilligans and, it is said, others laboured as to the construction of the Act of 1996. It is an unusual Act. It allows the State to freeze the assets of individuals which are found to be proceeds of crime. It then provides not one but several opportunities to challenge that finding. As early as May 1997, the structure of the Act had been explained in some detail by the Supreme Court in the judgment of Murphy J. outlined previously. Subsequently, the Act was the subject of a Constitutional challenge by Mr. Gilligan which failed. Further clarification as to the nature of a s. 3 order was given in the McKenna case and in a number of subsequent judgments to which I have referred previously. Given that this is a case in which the Gilligans could have appealed the making of the s. 3 order on the 16th July 1997 or made an application pursuant to s. 3(3), I am satisfied that this is not a case in which the Greendale jurisprudence can be or ought to be invoked. The Gilligans have had an appropriate remedy and in the light of the decision of Geoghegan J. they have pursued that remedy before Feeney J. which could only be done once there was a s. 3 order in place. Their decision to pursue a s. 3(3) application involved detailed case management and subsequently, a lengthy hearing before Feeney J.
I have referred previously to the importance of the finality of judgments and orders from the point of view of the needs of litigants to have finality to their legal proceedings and to ensure the proper and efficient administration of justice. If disappointed litigants were able to litigate then re-litigate points decided against them again and again, the legal system would soon grind to a halt. For that reason the circumstances in which a final judgment or order can be varied or set aside are rare. As has been explained, final judgments or orders can be varied or rescinded by reason of mistake under the “slip” rule, judgments obtained by fraud can be set aside and in rare and exceptional cases coming within the Greendale jurisprudence, judgments or orders can be set aside. It is worth recalling at this point two observations made by Henchy J. The first of those was made in the case of The State (Byrne) v Frawley [1978] I.R. 326 at p. 350 where he said:
“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I consider that he is now precluded by that election from claiming that the jury lacked constitutionality: see the decision of this court in Corrigan v Irish Land Commission [[1977] I.R. 317]. The prisoner’s approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally. Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the prisoner is not now entitled to assert the contrary. The constitutional right to a jury drawn from a representative pool existed for his benefit. Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.”
The observations of Henchy J. seem to me to be particularly apposite when considering the history of these proceedings, bearing in mind that the challenge to the order of Moriarty J. on the basis that he lacked jurisdiction to make such an order by reason of the fact that two previous orders had been made was only raised for the first time in the Supreme Court on these appeals from Feeney J. The Gilligans made s. 3(3) applications to Feeney J. following the Supreme Court decision in 2008 and such a hearing could only have taken place, as previously pointed out, if there was a valid s. 3 order in place.
Henchy J. in the later case of Murphy v Attorney General [1982] I.R. 241 at pp. 314-315 said:
“For a variety of reasons, the law recognises that in certain circumstances, no matter how unfounded in law certain conduct may have been, no matter how unwarranted its operation in a particular case, what has happened has happened and cannot, or should not, be undone. The irreversible progressions and bye-products of time, the compulsion of public order and of the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality -even irreversibility - that tends to attach to what has become inveterate or has been widely accepted or acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional, or otherwise void, law into an acceptable part of corpus iuris.”
Thus, it seems to me that even if the process followed in this case where orders under s. 3 were made on three separate occasions was not permitted under the Act, (which I do not accept for the reasons previously explained), to use the words of Henchy J., what has happened has happened and cannot be undone at this late stage of the proceedings in circumstances where, in my view, the Gilligans have slept on their rights to challenge the validity of the steps taken by CAB. Those who have a right to challenge the validity of an order made against them should do so promptly by the means provided for such challenge, such as by way of appeal. Failure to do so will preclude someone who might otherwise have a valid basis for challenging an order made against to raise such issue years later.
For the sake of completeness, I want to briefly address one further point made by the Gilligans in respect of the s.3 hearing before Moriarty J. Complaint was made on their behalf that the hearing took place at a time when “legal aid was not in place”. It is undoubtedly the case that s. 6 applications were still extant at that time and indeed those applications were dealt with by Moriarty J. some days later. It should be noted that an application pursuant to s. 6 is not an application for legal aid. It should also be borne in mind that John and Geraldine Gilligan were represented by Counsel and Solicitors at the hearing before Moriarty J. In those circumstances, it is simply not correct to suggest that there was any impediment to their legal representation at that hearing by reason of “legal aid not being in place”. I cannot see any basis for suggesting that the order made on that occasion was flawed by reason of any issue in relation to legal representation.
In the circumstances, I am satisfied that the Gilligans have not suffered any infringement of their constitutional right to challenge the finding on foot of the prima facie evidence of CAB that the properties referred to in the Schedule to the Plenary Summons constituted or were acquired with the proceeds of crime. There is no extraneous matter “going to the very root of the fair and constitutional administration of justice.”
Throughout the hearing of this appeal it has been clear that unless the original s. 3 orders could be said to be invalid there was no real basis for challenging the judgment of Feeney J. No arguments were advanced before this Court to demonstrate that his findings were in error. I therefore do not propose to embark on a review of that decision save to say that there was a comprehensive hearing before Feeney J. in which the Gilligans were given a full opportunity to deal with every possible conceivable issue in order to demonstrate the contention that the properties concerned were not acquired with the proceeds of crime. Their case in that regard was rejected. There is no basis for coming to any different view at this stage.
S. 4 orders and the European convention on Human Rights
I should make reference at this point to the judgment of Feeney J. on the s. 4 applications by CAB. The first point to note is that the judgment in that case bears the record number 1996 No. 10143P and is entitled in the names of the parties to the original plenary summons. It should have been entitled in the names of the parties to the special summons proceedings issued in 2004 in which bore the record number 2004 No. 536SP and in which the plaintiff was Mr. Felix McKenna and the Gilligans were the defendants. The order perfected following the delivery of judgment on the 20th December, 2011 on the s. 4 applications bears the correct record number and identifies the parties to the s. 4 proceedings correctly. Nothing turns on this point.
It follows from the fact that Feeney J. rejected the Gilligans’ applications pursuant to s. 3(3) that CAB would pursue its application for orders pursuant to s. 4 of the Act. Feeney J. went on to make orders pursuant to s. 4 of the Act against the Gilligans transferring all of the properties at issue to the Minister for Public Expenditure and Reform. (It should be noted that in the judgment and order of Feeney J. on foot of the s. 3(3) application that whilst an order was made for the sale of a property at 1, Willsbrook Lawn, Lucan, Co. Dublin, it was provided that Treacy Gilligan was to receive 20% of the net proceeds of the sale of that property).
In the course of submissions on behalf of the Gilligans reference was made to Article 1 Protocol 1 of the European Convention on Human Rights which provides as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
It is not contested by the Gilligans that the scheme of the Act of 1996 has a legitimate aim and further that it comes within the meaning of “public interest” referred to in Article 1 Protocol 1 of the Convention. However the argument was made that the process leading to a s. 4 disposal application had to comply with the principle of lawfulness required by Article 1 Protocol 1 of the Convention. The Court was provided with a number of authorities of the European Court of Human Rights on the principle of lawfulness. (See for example, Iatridis v Greece (1999) 30 E.H.R.R. 97 at para. 58.) Relying on those, it was submitted that it was necessary for CAB to show that the order obtained by way of s. 4 satisfied the test of lawfulness. It was then argued that the process leading to the s. 4 order was not lawful by reason of the procedural defects and the jurisdictional deficit alleged to have vitiated the s. 3 order. In other words, the procedure leading up to the granting of the s. 4 order did not comply with the principle of lawfulness required under Article 1 Protocol 1 of the Convention and therefore was unlawful as being an order made in violation of the Convention rights of the Gilligans.
For the reasons set out previously in relation to the arguments in respect of the validity of the s. 3 orders, I can see no basis for saying that CAB in its application for s. 4 orders has been in breach of the principle of lawfulness. I am satisfied that Moriarty J. was entitled to make a s. 3 order on the 16th July, 1997. Although a s. 3 order is a final order as explained in the McKenna case, for the reasons set out previously, I am satisfied that it was appropriate (and lawful) to have made that order at that time. It clearly was never the case that the earlier orders made pursuant to s. 3 were ever intended to be anything other than temporary. It is important to reiterate that the making of the order on the 16th July, 1997 was not opposed. After the making of that order it was always open to the Gilligans to challenge the order by way of appeal or alternatively on an application pursuant to s. 3(3) of the Act or in the course of an application pursuant to s. 4 of the Act. The Gilligans ultimately pursued their right to challenge the finding that the properties concerned were acquired directly or indirectly through the proceeds of crime in a comprehensive hearing before Feeney J.
It has not been suggested that the rights of the Gilligans under the Convention were in any way greater than those guaranteed by the Constitution. I can see no basis for saying that the making of the s. 3 order on the 16th July, 1997 was in breach of the constitutional or Convention rights of the Gilligans. Mr. and Mrs. Gilligan were both represented in court that day. They did not oppose the making of the order. Even assuming that they did not oppose the order because of a misapprehension as to the nature of a s. 3 order despite the earlier decision of the Supreme Court in these proceedings in which Murphy J. described the scheme of the Act, the order made then could have been challenged by appeal or pursuant to the provisions of the Act. In all the circumstances I am satisfied that there was no breach of the principle of lawfulness under Article 1 Protocol 1 of the European Convention on Human Rights.
Finally, I should refer briefly to a point made on behalf of CAB as to the applicability of the European Convention on Human Rights to these proceedings in which it was argued that given that the European Convention on Human Rights Act was passed in 2003, it could not be applied retrospectively to those parts of the proceedings and orders made therein prior to the coming into effect of that Act. It should be borne in mind that the s. 4 disposal order proceedings were commenced in 2004 and to that extent, there could be no question of retrospectivity in respect of the applicability of the Convention to those proceedings. The question of the retrospective application of the Convention to events occurring prior to 2003 relied on in post 2003 proceedings is not without difficulty. See for example, the decision of this Court in Dublin City Council v Fennell [2005] 1 IR 604.) However, given that I have concluded that the making of a s.4 disposal order in these proceedings did not offend against the principle of lawfulness, the question of the retrospective application of the European Convention on Human Rights does not need to be considered.
Conclusion
I am satisfied that the Gilligans are not entitled to succeed in the Greendale motions. They have not established that the judgment of the Supreme Court delivered in these proceedings in 2008 comes within the rare or exceptional circumstances in which a final judgment or order may be set aside. To do so, it would have been necessary to show, that through no fault of theirs, they had been the subject of a breach of their constitutional rights. For the reasons I have set out above, I am satisfied that there has been no such breach. There is nothing extraneous in the circumstances of this case going to the very root of the fair and constitutional administration of justice which would necessitate the setting aside of the judgment of the Supreme Court of 2008.
At the beginning of this judgment I identified the essence of the contentions of the Gilligans as being that there was no trial of the issue as to whether or not the property at issue in these proceedings was acquired directly or indirectly with the proceeds of crime when the operative s. 3 order was made freezing the property in the hands of the Gilligans pursuant to the Act of 1996. As a result, it was contended that there was no valid s. 3 order; thus, the hearing before Feeney J. was without jurisdiction and could not stand and ultimately, no disposal order under the Act of 1996 could be made in respect of the property. As has been noted previously, the Act of 1996 gives a party affected by a s. 3 order a number of opportunities to challenge the making of a s. 3 order. The first such opportunity arises at the s. 3 hearing itself. If not challenged at that stage, the making of a s.3 order can be challenged at a s. 3(3) hearing. Ultimately, there can be a challenge at the time of a s. 4 hearing. It is important to emphasise that if the making of a s. 3 order is not opposed, a party affected by such an order is not precluded from bringing such a challenge at a later stage in the proceedings. That is what happened here. There was a full trial of the real issue in the case, namely whether the properties concerned were acquired directly or indirectly by the proceeds of crime. That trial was the subject of a lengthy hearing before Feeney J. at which evidence was given by witnesses on behalf of CAB and on behalf of the Gilligans giving rise to the comprehensive judgment of Feeney J. of the 27th January 2011.
The evidence initially produced by CAB remained in substance the same as it relied on in all subsequent court appearances, whether moved on its behalf or on behalf of the Gilligans. The constant repetition, by way of reliance, of that evidence was therefore subject to repeat evaluation under judicial scrutiny during the course of these proceedings, giving the Gilligans multiple opportunities to engage with the evidence or to challenge its authenticity, reliability or value. Further, the essence of what CAB has asserted was never undermined, and accordingly it must be taken to have reached a status comparable to that required of any applicant in proceedings where the legal onus of proof rests upon it.
In addition, when these proceedings are looked at in a unitary sense, it must be taken that there was a substantive hearing, firstly on CAB’s application for a s. 3 order in respect of the property concerned which was obtained only on CAB discharging the onus of proving the matters specified in s. 3 of the Act of 1996, secondly, on the hearing of the s. 3(3) application of the Gilligans and finally, on the application for a disposal order, again only obtained in circumstances where the necessary statutory pre-conditions set out in s.4 of the Act of 1996 had been satisfied. Therefore, it cannot be accepted that the Gilligans did not obtain a fair trial as that phrase is understood in Convention terms.
In conclusion, I would dismiss the applications of the Gilligans on the Greendale motions and I would dismiss the appeals.
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