BILL CLEGHORN, AVER CHARTERED ACCOUNTANTS [2017] ScotCS CSOH_114 (31 August 2017)

BILL CLEGHORN, AVER CHARTERED ACCOUNTANTS [2017] ScotCS CSOH_114 (31 August 2017)

Section 98 of the Proceeds of Crime Act 2002 does not empower the court to transfer title or award a share of proceeds to a non-proprietor spouse or ex-spouse; its purpose is to protect occupation for a limited period to relieve hardship. The respondent, having no proprietary interest and being able to obtain alternative accommodation, is not entitled to outright refusal or transfer of the property. The needs of the respondent and her granddaughter, and the period of occupation, justify a short postponement but not refusal or further conditions.

Citation
[2017] ScotCS CSOH_114
Parties
Noter: Bill Cleghorn, Aver Chartered Accountants; Respondent: Margaret Duncan
Jurisdiction
Scotland
Judgment Date
31 August 2017
Procedural Posture
Application Under Proceeds of Crime Act 2002, S.98(2) / First Instance, Opposed Application for Authority to Dispose of Family Home
Outcome
Application granted with postponement
Legal Topics
Proceeds of Crime, Confiscation Orders, Family Home Protection, Enforcement Administration, Judicial Discretion, Financial Hardship, Occupation Rights
Criminal Law Civil Procedure Property Law Proceeds of Crime Confiscation Orders Family Home Protection Enforcement Administration Judicial Discretion +2 more

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Parties

Bill Cleghorn, Aver Chartered Accountants

Noter

Margaret Duncan

Respondent

Procedural Posture

Application Under Proceeds of Crime Act 2002, S.98(2) / First Instance, Opposed Application for Authority to Dispose of Family Home

Legal Issues

  1. 1 Whether the court should grant authority to the enforcement administrator to dispose of the family home under s.98(2) of the Proceeds of Crime Act 2002 despite opposition from the respondent.
  2. 2 Whether the respondent is entitled to have the property transferred to her or to a share of the proceeds of sale due to her alleged financial contributions.
  3. 3 What weight should be given to the needs and resources of the respondent and her granddaughter, and the period of occupation, in the exercise of the court's discretion under s.98(3).

Ratio Decidendi

Section 98 of the Proceeds of Crime Act 2002 does not empower the court to transfer title or award a share of proceeds to a non-proprietor spouse or ex-spouse; its purpose is to protect occupation for a limited period to relieve hardship. The respondent, having no proprietary interest and being able to obtain alternative accommodation, is not entitled to outright refusal or transfer of the property. The needs of the respondent and her granddaughter, and the period of occupation, justify a short postponement but not refusal or further conditions.

Court Disposition

Application granted with postponement

Orders

  • Authority granted to the enforcement administrator to dispose of the property at 4 Douglas Street, Blantyre.
  • Grant of authority postponed for a period of four months from the date of the order to allow the respondent and her granddaughter to make alternative accommodation arrangements.