High Court grants temporary stay of property sale pending determination of 'Mortgage to Rent' scheme application.

THE HIGH COURT

[2025] IEHC 603

[2024 No. 21 CAB]

[2007 No. 5 CAB]

PROCEEDS OF CRIME

IN THE MATTER OF THE PROCEEDS OF CRIME ACT 1996

BETWEEN

CRIMINAL ASSETS BUREAU

APPLICANT

AND

BARRY O’BRIEN and MAJELLA O’BRIEN

RESPONDENTS

JUDGMENT of Mr Justice Liam Kennedy delivered on 10 November 2025.

1. In January 2010, Feeney J made an interlocutory order (the 2010 Order): (a) determining pursuant to section 3 of the Proceeds of Crime Act 1996 (PoCA)1 that the Unless otherwise stated, statutory provisions referenced are provisions of PoCA (as amended).

respondents’ dwelling (Oaktate) and other properties represented the proceeds of crime; (b) appointing a senior Criminal Assets Bureau (Bureau) Officer as receiver2 (the Receiver). The order required the Receiver, inter alia, to take possession of the properties, including Oaktate, forthwith and to manage and sell them, subject to a nine month stay - the proceeds (after repayment of any charge) were then to be held for the seven year period prescribed by s.4(1) before being transferred to the Minister pursuant to a disposal order under s.4(4). The other properties were duly sold but the Receiver delayed in taking possession of and selling Oaktate in accordance with his obligations under the 2010 order. There was no obvious legal impediment to his so doing - in July 2013 the Supreme Court upheld the 2010 order, conclusively determining the proceeds of crime issue as between the parties.

2. In the light of the Supreme Court decision and the statutory provisions, the only ground on which the respondents can now oppose the sale is by satisfying the Court that the 2010 order should be varied as it now causes an injustice. The respondents are duly applying pursuant to s.3(3) to vary the 2010 Order in the interests of justice to enable them to seek admission to the “Mortgage to Rent” scheme (the Scheme and the Scheme application). Such an order would allow them to remain as social housing tenants of a transferee from their mortgagee (rather than as owners). To that end, they seek to stay the Receiver from taking possession or disposing of Oaktate pending the determination of the Scheme application.

3. This judgment concerns the stay application and the Bureau’s preliminary objection that a stay should be refused on the basis that it and the underlying s.3(3) application are an abuse of process on the basis of the respondents’ conduct and delay, Owens J having dismissed the respondents’ similar application earlier this year. His decision3 (the Judgment) and his directions (the July Directions) will be the focus of this judgment.

It is not necessary for present purposes to differentiate between the original receiver and his successors. Criminal Assets Bureau v. O’Brien & Anor [2025] IEHC 395.

4. The proceedings first appeared before me on 15 October 2025. The respondents presented their draft s.3(3) application (to set aside or vary the 2010 order) submitting that they were seeking a stay on foot of a draft motion which they had sought to issue with, they claimed, Owens J’s permission and in accordance with the directions but had been wrongly prevented from so doing by the Central Office. The circumstances in which the Central Office did not permit the issuing of the motion were disputed4, but the major issue, which triggered an unnecessarily lengthy debate, concerned the respondents’ entitlement to issue the application and seek a stay in the light of the earlier proceedings.

5. The Bureau maintained that the respondents were precluded from relitigating its stay application, whereas the latter maintained that Owens J specifically adjourned the proceedings to 15 October to facilitate such an application, which, they were statutorily entitled to bring in any event. They said that, while Owens J refused a stay based on the evidence then before the Court, he expressly anticipated and left open the possibility of a fresh application addressing infirmities which he had identified. The Bureau responded, in effect, that the respondents were impermissibly rehashing a stay application which the Court had already rejected – it was essentially the same application albeit under the guise of a different provision - and they had not addressed the issues identified by Owens J or satisfactorily explained the failure to issue the motion, and, most importantly, any stay application should be refused due to the respondents’ delay and the rule in Henderson v Henderson5. While the respondents submitted that recourse to the DAR of the July hearing would confirm their account of what had transpired, the Bureau opposed such recourse “as a matter of principle”, submitting that such recourse was unnecessary on the basis that I should adopt the most benevolent interpretation as to what had transpired when considering the respondents’ application. The Bureau did The respondents claim to have attempted to issue the motion and grounding affidavit within the timescale directed by Owens J, but no affidavit was filed to explain the difficulty they claim to have experienced, and they did not respond to the Bureau’s submissions which highlighted discrepancies in the documents which may have explained any such difficulties as problems of their own making.

(1843) 3 Hare 100.

ultimately clarify its position to confirm that it had no objection to the Court considering the DAR and that it was arranging for a transcript to be made available, which proved helpful.

6. Although the Bureau maintained that access to the DAR was unnecessary because it accepted that the Court could simply proceed on the basis of the interpretation most favourable to the respondents, the position outlined by the Bureau could not in my view fairly be regarded as the most favourable articulation because it did not sufficiently reflect Owens J's explicit statement of his intentions. Although the Bureau’s submissions referred to Owens J granting liberty to the respondents to file and serve an affidavit dealing with "any issue arising from its judgment of 24 June 2025”, he clearly went further and confirmed his openness to a stay if the applicants filed a credible s.3(3) application in accordance with their statutory entitlements.

7. Once I eventually had recourse to the transcript it did clarify my understanding. Much time could have been saved if the parties had engaged constructively in advance of the 15 October listing to avoid a rehash of the July hearing, The Court expects them to do so in future.

8. My conclusions are as follows: a. Both parties have perpetuated extraordinary delay, the Bureau in enforcing the order and the respondents in seeking admission to the scheme and in bringing a comprehensive application before the Court. Owens J was exercised by the Bureau’s delay and by the prejudice to the State potentially resulting therefrom. He was critical of both parties, noting that the unexplained delay6 from 2017 to 2024 by the Receiver, an officer of the Court, may have jeopardised the potential for a recovery for the State. The Court also criticised the respondents’ delay in applying for admission to the Scheme and in seeking to stay or vary the 2010 order and their failure to put adequate and comprehensive evidence put before the Court when they The Bureau’s submissions before me implied that the need to engage with the charge holder may partially explain some of the delay; but evidence would be required to clarify the extent to which this or any other factor accounted for the Court appointed Receiver’s extended delay in discharging his duties to the Court.

finally issued their application. He made clear that transparency was required and that the respondents would have to "show their hand". b. Although the Bureau maintains that the s.3(3) application and grounding affidavit do not address the concerns identified by Owens J, I need not resolve that issue now. Furthermore, the issues identified by Owens J should not be assumed to be an exhaustive list. He was not advising on proofs. The responsibility remained exclusively with the respondents to put all relevant evidence before the Court in support of their belated s.3(3) application and the associated stay application (and to make full disclosure in the context of their related application for admission to the Scheme), burdens they failed to discharge on their first attempt. c. I am satisfied that, as Owens J acknowledged, the respondents are entitled to bring their s.3(3) application (and the adequacy of their proofs will be adjudicated on another day). I am also satisfied that the hearing of the application must be fast tracked, and I expect, and will require, all parties to cooperate to that end. d. I am willing to grant a stay until the next occasion the matter is before the Court and, subject to the respondents progressing the matter with all possible despatch, to further extensions, hopefully by agreement. However, I am unlikely to agree to extend the stay for more than six months. Furthermore, the stay is conditional upon the respondents’ prompt payment of rent to the receivers as outlined below.

To explain these conclusions, I first examine the Judgment and the July hearing.

The Judgment

9. The Judgment concerned the respondents’ attempt to stay the Receiver from taking possession of Oaktate and selling it pursuant to the 2010 order. The respondents and their family continued to dwell in Oaktate notwithstanding the order, having two more children since the 2013 Supreme Court decision.7 They did not keep up mortgage payments and the mortgage debt could now exceed Oaktate’s value. In late 2024 the Bureau applied, inter alia, for a s.4 disposal order in respect of Oaktate’s (anticipated) proceeds. In response, and with leave, the respondents applied to stay the receivership, inter alia8, to facilitate the transfer of Oaktate to an approved body under the Scheme. The Judgment rejected that stay application. Owens J noted the obligation9 to undertake a proportionality analysis before enforcing powers resulting in the loss of enjoyment of a dwelling. The respondents needed to demonstrate that, although representing the proceeds of crime, Oaktate ought not to be subject to the statutory regime of restraint, sale and disposal. The judge noted that the interest of family members in remaining in occupation of a dwelling cannot of itself “defeat the public interest requirement of depriving persons of property obtained by means of the use of the proceeds of crime”10. They could have no legitimate expectation to be permitted to continue to occupy dwellings which represent the proceeds of crime. However, he recognised that an issue arises in such cases as to whether evidence demonstrates that enforcement of remedies, which the law gives for the purpose of depriving wrongdoers and those associated with them of benefits acquired through use of proceeds of crime, will result in disproportionate interference with other rights which the law is obliged to vindicate or take into account. Being forced to give up occupation of a dwelling is always relevant to proportionality determinations under s.3(1), s.3(3) and s.4(8). The special status of those occupying dwellings, lawfully or not, must be given appropriate weight. The Court must examine in detail any evidence tendered and give adequate reasons for any decision which would have the effect of depriving any persons of occupation of their home. The analysis must be conducted within parameters allowed by PoCA. Respondents must show that The defendants now have 7 children, all but one apparently residing in Oaktate. Three children are adults in employment, aged 26, 27 and

32. The youngest of their four minor children was born in June 2017. The respondents also sought a stay on the receivership to allow them to remain in Oaktate until their mortgagee sold it. That argument received short shrift from Owens J and was not pursued in the current application so I will not refer to it further. Clare County Council v. McDonagh [2022] 2 I.R. 122.

Criminal Assets Bureau v. O’Brien [2010] IEHC 12 at para. 4.3

continuance of an interlocutory order causes injustice and that it should be set-aside or varied11. Owens J emphasised that if evidence shows that continued enforcement of an interlocutory order which affects a dwelling would have disproportionate adverse effects on occupants, then it would be unjust that it should remain in place without discharge or variation. The main issue was whether the Court should stay the Receiver’s exercise of his powers to permit the respondents to pursue the Scheme application (the same issue which faces me, albeit that the respondents say the situation has changed).

10. Section 4 deals with disposal orders, which deprive the respondent of any rights in or to the property transferred to the Minister (or other person), enabling the Receiver to sell or otherwise dispose of the property for the Exchequer’s benefit. S.4(8) stipulates that the Court shall not make a disposal order if it is satisfied that there would be a serious risk of injustice. The judge noted that if continuance of an interlocutory order was shown to cause injustice to any person it would follow that a corresponding disposal order would carry a serious risk of injustice to that person, unless it can be made subject to conditions which protect legitimate interests. The Court also noted that, at any time prior to the making of a disposal order, a respondent may apply to have an interlocutory order varied or discharged on grounds that “it causes any other injustice” and that a respondent may raise this issue to resist an application for enforcement, such as for the change of receiver, or for a direction that possession of property be delivered up for sale. Respondents may rely on events which have occurred after the date of an interlocutory order in making this case.

11. The Judgment noted that: (i) The respondents bought the site in 2003, having borrowed €250,000 from EBS, with a charge over Oaktate securing the loan; (b) they built a home on the site and moved into occupation with their children; (c) they were registered as owners in April 2006; (d) a 2022 valuer’s report was obtained to establish that Oaktate qualified at that time for MacMenamin J set out a non-exhaustive list of factors which may be relevant in Criminal Assets Bureau v. Kelly [2012] IESC 64 at para. 34: see also judgment of Butler J. in Criminal Assets Bureau v. Cash [2025] IECA 36.

inclusion in the Scheme. Its market value was assessed as €400,000; (e) under any s.4(1) disposal order in favour of the Minister, the transfer would be subject to the registered chargeholder’s rights (now Mars Capital Finance Ireland DAC (Mars)); (f) the effect of the 2010 order was that the respondents were no longer recognised by public law as entitled to Oaktate – it had been conclusively established that Oaktate (and other properties) were acquired with proceeds of crime; (g) the 2010 order required the Receiver to take possession of Oaktate forthwith and to manage and sell it, subject to a nine month stay; (h) if matters had proceeded as envisaged in 2010, Oaktate would have been sold after the appeal was dismissed in 2013.

Any net proceeds would have been disposed of for the benefit of the Exchequer in 2017; (h) affidavit evidence on behalf of the Bureau officer states that it is now not anticipated that the sale of Oaktate will generate a surplus over the amounts due to Mars. The Court was not told when the house went into negative equity (but it was hardly surprising that borrowers had failed to keep up repayments in the circumstances); (i) the longer the tenants were allowed to stay put, the less likely it was that there would be a return for the Exchequer from a sale; (j) the Bureau’s Chief Legal officers, who were court-appointed receivers, had failed to carry out the Court’s directions; (k) if there were reasons for the bureau’s delay or forbearance, these were not been explained; (l) neither side raised the passage of time as an issue of particular concern.

They did not appear unduly exercised about it; (m) there comes a point at which a party’s failure to progress litigation may become an abuse of court process; (n) delay may also be relevant to discretion to vary or discharge interlocutory orders on grounds of injustice; (o) although the Bureau’s failure to remove the respondents from Oaktate could not of itself give rise to any legitimate expectation that they would be allowed to live there indefinitely, it was relevant to exercise of the judicial power to vary or set aside an interlocutory order on grounds of injustice and to stay enforcement of a receiver’s powers until a hearing of this type of application12; (p) where, as here, a family has been living for a long period in their home, it is likely that they will suffer much more disruption in their lives if they are obliged to vacate.

If this results from prolonged inaction by a public body empowered or mandated by law to remove them, that will also be a relevant consideration. They are entitled to certainty in their lives; (q) if the Receiver is allowed to sell Oaktate, the family, including young children, would be obliged to leave their home and find some other accommodation in or near the area where the younger children are at school.

12. The judge concluded that: (a) the balance of justice would “firmly lie” with maintaining the residence of the respondents and their family if they could show that they had an arguable case that they could succeed in an application for discharge or variation of the interlocutory order; (b) the likely lack of a surplus on the sale of Oaktate was also relevant to the balance of justice if the respondents can establish an arguable case that the interlocutory order should be varied; (c) on the best outcome for the State, the Exchequer will not benefit (unless the mortgage was statute-barred). The sole purpose of enforcement here would be to deprive the respondents of enjoyment of proceeds of crime; (d) the original 2010 order could not have been made if the High Court (or, on appeal, the Supreme Court) was satisfied that there would be “a serious risk of injustice” in so doing (and the legislation imposes similar tests in respect of applications to stay any such order or its enforcement or to vary it).

13. While the respondents’ grounding affidavit did not explain the Scheme, Owens J was familiar with it, noting that: (a) it is designed to enable mortgagors, who are unable to meet their payments, to give up their homes and become social housing tenants; (b) to be eligible, borrowers must qualify to be treated as social housing tenants; (c) if borrowers are admitted into the Scheme then (i) their mortgagee sells the dwelling to an approved housing body in I would respectfully endorse these conclusions and also note recent Supreme Court decisions on delay in respect of more traditional receiverships (Tweedswood Ltd. (In Receivership) & Anor v. Martin Power & Anor [2025] IESC 18) and in the context of civil proceedings generally, (Kirwan v Connors & Ors [2025] IESC 21). What, if any, relevance such decisions have for PoCA receiverships is an issue for another day, but they do highlight the Courts’ increasingly robust attitude to delay in general.

return for an agreed payment by the housing body to the mortgagee; (ii) the home is then owned by the housing body; (iii) the former owners pay rent which is adjusted from time to time by reference to household income; (iv) they are given an option to buy their home after five years if their circumstances improve. Owens J concluded at para 86 that he “might well be persuaded” to vary the 2010 order to permit Mars to transfer Oaktate to an approved housing body to avoid injustice to Mars and/or the respondents and their family if they could show that the application had some reasonable prospect of success.

14. Owens J concluded that “the evidence before the Court” did not justify a stay on enforcement of the 2010 order. The respondents had provided limited and unsatisfactory evidence and in 2022 a proposed transferee had already indicated its unwillingness to participate in the Scheme13. He doubted that there was a realistic prospect that the respondents could avail of it - they had “yet” to demonstrate a stateable case that the sale would produce a result so disproportionate as to cause injustice. He refused a stay, noting that “refusal of a stay on this receivership will result in loss for them and their family of their home. In my view this factor, while weighty, is not of itself sufficient to justify a result which would officially sanction continued enjoyment by them of benefit from proceeds of crime”. He adjourned the applications for submissions “on how this receivership should progress”.

They produced no evidence that they engaged their lender in the process. They did not state their current employment, their household income or their assets which would enable them to meet commitments or to buy Oaktate from their proposed lessor. They did not state what their monthly mortgage payments were or when they stopped making these payments. They did not state why they stopped paying or how much they now owe or what their arrears now are, or whether they are disputing liability or relying on some defence, such as that their mortgagee’s claim is statute-barred, and their mortgage is extinguished. They avoided making any concession of liability in relation to “the debt claimed by Mars DAC.” The defendants had not progressed their application under the Scheme since 2022. They had put nothing before the Court which demonstrated that they were currently eligible to participate in the scheme. They had provided insufficient evidence to demonstrate that a renewed application under this scheme would have any realistic prospect of success. They had not provided any evidence relating to other factors which had a bearing on non-payment of their mortgage and might support a decision that it would be unjust not to vary the interlocutory order to permit the proposal. The questionnaire completed in support of the application did not respond to a query as to whether litigation was threatened or pending when they bought Oaktate, and, if so, the details. The second respondent should have disclosed the 2010 order. Also, Owens J queried a 12 August 2022 letter from Louth County Council exhibited to demonstrate eligibility for special housing support, noting that it listed Ms O’Brien and her four minor children, confirming that on the basis of her current circumstances she was then eligible for special housing support. However, she had not explained why her husband and her three adult children were not referenced. Further, and perhaps most important, Ms O’Brien had exhibited a letter from the housing body in 2022 without disclosing whether she had drawn its attention to the 2010 order. If she had obtained legal advice (as advised by the housing body and completed the draft statutory declaration provided under cover of their letter dated 25 August 2022 she would have been obliged to disclose that fact.

The July 2025 Hearing

15. The proceedings were ultimately listed before Owens J in July. As noted above, when the matter came before me on 15 October, the parties disagreed as to what had transpired on that occasion. I accept the respondents’ counsel’s note as a broadly accurate record of what transpired at the July hearing (there is a typo in that the word “proceeding” is used in lieu of “succeeding”). It is accordingly as surprising as it is unfortunate that an agreed account could not have been presented to me when the matter was first before me on 15 October. The Court expects counsel to liaise before listings to seek to reach agreement (subject to the Court) as to appropriate directions and to avoid unnecessarily troubling the Court with controversy as to the basis on which the matter was addressed at previous hearings. Unfortunately, such expectations were not met on this occasion.

16. In any event, having reviewed the contemporaneous summary made by the respondents’ counsel and the transcript, I am satisfied that the following paragraphs capture the relevant aspects of what transpired previously. My conclusions in that regard chime with the respondents’ understanding. Since the issues may be relevant to future proceedings and to the costs of the unnecessarily protracted hearing before me, I will summarise key points.

17. At the outset, the applicant suggested that the existing order sufficed, and the only outstanding issue was to stipulate a date for possession – it suggested 21 August. The respondents’ counsel responded by seeking liberty to bring a s.3(3) application for a motion to vary the order (presumably the 2010 order), to be returnable to 15 October. Owens J responded “at last you've woken up” noting the failure to make such a stay application previously. When the respondents’ counsel reiterated their desire for a stay, Owens J responded, “so you want a second go?” and counsel agreed.

18. The applicant’s counsel intervened once more, objecting that the section 4 order had already been made, which Owens J acknowledged, noting that the respondents were again looking for a stay to bring an application, presumably for a “Section 3 order or whatever”. Counsel added that the Bureau had complained about the tardiness of the previous stay application in response its 2024 application. Owens J agreed that the case had been going on for far too long but observed that the Bureau was to blame as well14. He said “Possession of this house will have to be given up at some point and at the moment these people have been residing in it now for donkey years…So what I'm going to do is at the moment I'm going to direct that possession be given up by the end of the year because everything has sauntered on for so long and they can bring whatever application they like.

They don't need to liberty to bring an application under Section 15.3 or Section 3.3 of the Act. They're entitled to bring that application at any stage and if they've a good application maybe they'll get somewhere with it at this particular point but I'm not optimistic in relation to it and that's why I've directed that possession be delivered up on this property by the end of the year and … there'll have to be in the meantime some information if I was prepared to do that, I should say, from Mr & Ms O’Brien and I'm going to direct that by the 15th October they file an affidavit dealing with all of the issues that were set out in the judgment, which are clearly identified.

So what I'll do is I'm going to put the stay now in fact until the 15th October only and it's subject, I might say, in relation to, it's subject to them actually showing their hand at this particular stage, the O'Briens, as to what exactly the position is because the judgment very clearly sets out in relation to this concerns that I've had in relation to their initial application. I don't believe frankly that they provided correct information to allow the County Council, as you've probably gathered from the judgment that was given, when they applied for matters and I don't believe that at the moment that they're showing sufficient to show that they have any possibility of actually availing of this particular scheme.

They simply haven't provided me with the information in relation to those things. So what I'm going to do is, as I said, at the moment possession will He observed “the Bureau is to blame in relation to it as well because I've seen no explanation for what has happened in relation to it. I was highly critical of the way this whole matter was handled I have to say, by both sides, as you've seen from the judgment”.

be delivered by the 15th October but the matter can be reconsidered in the event that they actually have an affidavit before the court at that stage setting out what their position is and actually telling me what is owed and actually stating their position as to whether they admit that the money is owed to Mars and how much is owed and what the circumstances were in which they failed to pay the mortgage for all these years and whether they in fact they are running some sort of other case based on the statute of limitations. So all of those things are lurking behind this”.

19. The Court directed possession to be yielded by the day after the October list (rejecting the applicant’s request for possession to be delivered just before that list). Owens J answered the applicant’s objection that the stay had already been refused:

“Yes, that is correct and they can come into the court, if they can produce some good reason why things are actually going to happen, it could be reviewed in relation to it on the next occasion, if they actually come clean in other words and not be holding everything behind their back”.

20. Owens J added

“As I say, it can be reviewed by the court at that stage if they have something honest to say about it”. He noted that he had said what he had said about the Bureau but that he was also deeply critical about the way that the O'Briens had approached this application:

“I never saw an application I have to say brought by anybody where there was actually so little engagement, what was going on”.

21. Owens J directed that the respondents’ affidavit should be produced a week before the October listing, noting that counsel for the applicant could “explain to the court on the next occasion why I've done this because there was simply a lack of engagement in relation to it”. The judge reminded the respondents “you don't need liberty to bring an application which the statute entitles you to bring” but added that “It mightn't be very well received if it came with the same quality as the last effort”.

22. As appears from the order of Owens J dated 17 July 2025, the Court refused the application for a stay on the 2010 order and ordered the respondents to deliver vacant possession on 16 October 2025. The order also directed the respondents to file and serve an affidavit "dealing with all issues in the said written judgement that they wish to address and have it before the court at the next Proceeds of Crime list on the 15th day of October 2025”. Although the order referred to the filing of an affidavit dealing with issues in the previous judgement refusing the stay application, it is clear from the transcript of the July hearing that Owens J envisaged that any affidavit served could be in the context of a s.3 (3) application.

Respondents’ Offer to pay rent

23. Finally, on a separate point, at the 15 October hearing, the respondents’ counsel acknowledged his clients' ability to pay rent during their occupation of the house and suggested that, on the basis of the figures before the court, they should be in a position to make a monthly payment of €1,000 (without allowing for any contribution by two adult children who live rent free in the house).

Legal Principles

24. As far as legal principles are concerned, the Bureau helpfully summarised the principles applying to applications for a stay and the respondents did not appear to take issue with that summary which has guided my assessment in these proceedings. I need not cite those uncontroversial principles.

Analysis

25. Dealing first with the reference to payment of rent during the stay, in the circumstances, no stay could be contemplated on the basis that the respondents and their family, including their adult children, continued to live rent free for an indeterminate period in a house which represented the proceeds of crime and in which they currently have no lawful interest, in circumstances in which they could have brought their current applications long before now. In the absence of some reasonable payment, the Court would doubt the respondents’ good faith in pursuing the application and their commitment to pay rent on admission to the Scheme. In any event, it would be impossible to justify rent free accommodation in property which represents the proceeds of crime in the balance of justice assessment. Accordingly, any stay would be on the basis that the respondents make a payment of €1,500 commencing on 20 November with a corresponding and prompt payment of the same amount on a monthly basis thereafter until the s.3(3) application is resolved or the Court orders otherwise. Such rent should be paid to the Receiver and held by him until further order. The figure I have stipulated has regard to the figure referenced by the respondents’ counsel and is also augmented to allow for a (modest) contribution by the adult children, gainfully employed. It does not seem unreasonable particularly in view of the respondents’ long occupation of the property, apparently without any financial contribution and the respondents’ explanation for not allowing for an appropriate contribution from the adult children, at least two of whom reside in the property, do not bear scrutiny.

26. The Bureau criticised the respondents for attempting to "shore up" evidence previously placed before the court in the hopes that a stay will now be granted, contending that that was impermissible. However, its submissions ignored the fact that this was what Owens J appeared to envisage on the last occasion the matter was before him.

27. Turning to the more general issues arising on the application, the respondents can only oppose the sale by satisfying the Court that the 2010 order should be set aside or varied because it now causes an injustice15. As Owens J noted, a proportionality analysis is required. The Court also noted that a respondent may apply to have an interlocutory order varied or discharged on grounds that “it causes any other injustice” at any time prior to the making of a disposal order and that it follows that a respondent may raise this issue to resist an application for enforcement, such as a direction that possession be delivered up with a view to sale, relying on events which have occurred after the interlocutory order.

28. While concluding that the respondents had “yet” to adduce sufficient evidence to demonstrate a stateable case that the sale would produce a result so disproportionate as to cause injustice, he also acknowledged that if the evidence demonstrated that continued enforcement of an interlocutory order which affects a dwelling would have disproportionate adverse effect on occupants, then it would be unjust if it was not discharged or varied. He said that the balance of justice would firmly lie with maintaining the residence of the respondents and their family if they could show an arguable case that they could succeed in an application for discharge or variation of the interlocutory order. The likely lack of a net surplus on the sale was also relevant to the balance of justice if the respondents can establish an arguable case. On the best outcome for the State, the Exchequer would not benefit (unless the mortgage debt was statute-barred). The sole purpose of enforcement at this stage would be to deprive the respondents of enjoyment and control of proceeds of crime.

29. Significantly, Owens J concluded at para 86 that he “might well be persuaded” to vary or set aside the interlocutory order to permit Mars to transfer Oaktate to an approved housing S.4(8) imposes the same test on respondents resisting s.4(1) applications for a disposal order and s.3(3) imposes a similar requirement in respect of applications to set aside or vary s.3(1) orders – it must be established that they cause injustice.

body on grounds that to do otherwise would cause injustice to Mars and/or the O’Brien family if they could show that the application had some reasonable prospect of being successful. Such a stay would be appropriate if they demonstrated “a viable claim to qualify for participation in the “Mortgage to Rent” scheme, and an arguable case that the interlocutory order should be varied to permit Mars to transfer Oaktate to an approved housing body under the scheme”.

30. He emphasised that if Mr & Ms O’Brien could show a real prospect of being admitted to the Scheme, “this would give them a viable route to lawful occupation of a dwelling which they and their family currently enjoy as a benefit derived from proceeds of crime”. However, the respondents had not provided sufficient information to establish the likelihood that they are currently eligible to participate in the Scheme or in relation to the possible merits of a variation application of the interlocutory order on grounds that injustice would otherwise result. The Judgment noted the deficiencies in their evidence and refused the stay.

31. Following the Judgment, the respondents’ counsel confirmed that they were seeking liberty to bring s.3(3) application. At the July hearing the judge did not suggest that there was any impediment to their doing so. To the contrary, he observed “at last you've woken up” and that “you want a second go, in other words?”. He was dismissive of the Bureau’s objection that the section 4 order had resolved that issue, an objection the Bureau essentially rehashed before me (and it would have been appropriate for it to have more clearly drawn my attention to the rejection of the point by Owens J). He noted that the respondents didn’t need to liberty to bring section 15(3) or section 3(3) applications - they were entitled to do so at any stage. He added that if they had a good application “maybe they'll get somewhere with it at this particular point”. He was not optimistic as to their chances as matters then stood, which was why he was initially minded to direct that possession be delivered up by the year end. More would be required to justify a stay – he directed them to file an affidavit dealing with all issues identified in the Judgment, which the respondents say they have now done. He made clear that any stay was subject to the respondents showing their hand:

“at this particular stage …as to what exactly the position is because the judgment very clearly sets out in relation to this concerns that I've had in relation to their initial application”. He emphasised that they had not provided the Court with the required information: “at the moment possession will be delivered by the 15th October but the matter can be reconsidered in the event that they actually have an affidavit before the Court at that stage setting out what their position is and actually telling me what is owed and actually stating their position as to whether they admit that the money is owed to Mars and how much is owed and what the circumstances were in which they failed to pay the mortgage for all these years and whether they in fact they are running some sort of other case based on the statute of limitations”.

32. Owens J overruled the Bureau’s objection that the respondents were seeking a stay which had already been refused – “they can come into the court, if they can produce some good reason why things are actually going to happen, it could be reviewed in relation to it on the next occasion, if they actually come clean in other words and not be holding everything behind their back… it can be reviewed by the court at that stage if they have something honest to say about it”.

Other Considerations

33. On 24 October 2025 the respondents’ counsel indicated their willingness to accept the tightest timeline court proposes but sought liberty to revisit the matter if there is an issue, on the specific basis of finding difficulties with third parties. In response to my enquiry as to how long a stay would be required to get the s.3(3) application to hearing as a matter of urgency, their counsel noted that the key issue was the availability of the Scheme. It was difficult for them to predict the timing in that regard because it depended on third parties, state agencies.

The process could take time but might not need to be entirely finalised to meet the s.3(3) threshold. When I expressed concern at the suggestion of an indeterminate stay, respondents’ counsel proposed a six months’ stay to allow time to determine whether the Scheme application would succeed - this would be on the basis that no further adjournment or stay would be sought. He noted that the Scheme might not be entirely complete during that period – there could be some technical impediment, but it should be evident whether the application for admission was likely to succeed and agreement in principle as to the way forward within that timeframe, which would be sufficient for the purposes of the s.3(3) application.

34. I gave directions for the completion of the exchange of affidavits with a view to the urgent hearing of the s.3(3) application. I was not minded to grant a stay at that point (I had not reviewed the transcript at that stage – it was on that occasion that the parties agreed that I should review a transcript of the July hearing) but directed that the Bureau should give 21 days’ notice to the respondents before taking any committal or other enforcement action in respect of Oaktate on foot of the 2010 order.

Conclusions

35. In summary, in high level terms, the respondents say they have risen to the challenge set by Owens J, providing the evidence he stipulated and that they are not precluded by rule in Henderson v Henderson. They accept that the same legal test (injustice) will govern their s.3(3) application as applied to the previous stay application but predict a different outcome as they say they have addressed the previous evidential infirmities. They say they are entitled to bring a fresh application as he envisaged. The Bureau disputes those points. However, it is clear to me from the transcript and the judgment that Owens J was dealing with the application in front of him.

He was not determining the fate of a hypothetical new application one way or another (nor could he) nor was he precluding the respondents as the Bureau appeared to suggest. To the contrary, he was anticipating and providing for them. Owens J had made his view clear that if the respondents wanted the Court to intervene, full disclosure would be required. The adjournment and his remarks were consistent with giving the respondents an opportunity to comply with that stipulation. I am not yet determining whether the application meets the bar set by Owens J.

It would be premature for me to determine, without full argument, whether they have done so. Likewise, while I note the concern about delay on both sides, I do not think I should dismiss the current applications ad limine on that ground (although the respondents’ tardiness throughout the process will be a factor to be considered at the hearing of the application). What matters now is that the Court clearly envisaged new evidence being adduced, which showed that, as counsel for the respondent put it, the door was ajar for a new application. The Bureau will be entitled to contest the application on its factual, legal and procedural merits including on the basis of delay and on the basis of issue estoppel or the rule in Henderson v Henderson.

They are entitled to do so at the hearing of the s.3(3) application but coming new to the proceedings and in view of the previous intimations from Owens J, it would be inappropriate for me to deal with the s3(3) application or the stay issue on the basis of a preliminary objection without a proper hearing. In fairness to both parties, it will be necessary to consider the adequacy and significance of the new evidence and to hear legal argument to determine whether the new application is precluded. It would be inappropriate for me to do that without allowing the parties to make submissions and also to refer to any evidence previously before the court which may go to that issue.

While the Courts will not allow our processes to be abused, we will also be slow to curtail access to the Courts. Nor will we prevent the respondents from appropriately exercising their statutory and constitutional rights.

36. The stay applications before two judges have already taken up considerable Court time. The fairest and most efficient way to progress is an urgent hearing to deal with the application on its legal and factual merits, including all defences or objections on the basis of delay, the rule in Henderson v Henderson or otherwise. I will be coming to the application on the basis that my role is to determine whether the current application should be granted on the merits based on how matters stand (in terms of evidence and submissions at the time of the hearing of the current s.3(3) application). The past proceedings will be relevant to the Greendale16 and delay arguments, but the determination of the new application may depend on the additional evidence and submissions before me.

37. Having reviewed the transcript, I am now prepared to extend the stay granted by Owens J to the next occasion the matter is before me. My intention is to ensure the hearing of the application this year if possible and the stay will only continue on the basis that I am satisfied that the respondents are doing everything possible to ensure its resolution (and the progress of the corresponding application to the Scheme17). If the hearing of the s.3(3) application is extended by more than six months from the date of the issuance of the motion then the respondents should assume that the stay is unlikely to be extended, so the outcome of the application could be rendered moot (which is unfortunate from their perspective but very much a situation of their own making). The Bureau will be likewise expected to proceed diligently and constructively to ensure the efficient and expeditious resolution of the issue. I direct that the stay will be on the basis of the monthly rent payment to the Receiver commencing 20 November 2025. It will lapse immediately if the respondents fail to make the monthly payment as directed in para 25 above (unless they first obtain leave of the Court, on the basis of an application on affidavit, to vary the terms of this order). I will list the proceedings for further directions at the Proceeds of Crime List on 17 December 2025.

Re Greendale Developments Ltd (No. 3) [2000] 2 IR 514. Applications for an extension by reference to delays due to third parties may receive a frosty reception in the circumstances unless the respondents can show that they have consistently done everything possible to avoid and overcome such obstacles.

APPEARANCES

Benedict Ó Floinn SC and Andrew Gubbins BL, instructed by the Chief State Solicitor’s Office for the Applicant.

Paul Comiskey O’Keefe BL, instructed by Aaron Kelly & Co Solicitors, for the Respondents.