In re Maye (AP) (Appellant) (Northern Ireland)

Under the Proceeds of Crime (Northern Ireland) Order 1996, an interest in an unadministered estate is property even though the beneficiary has no proprietary interest in any particular estate asset. Its market value forms part of the realisable amount.

A pending personal action for damages, including an action for false imprisonment, is also property. The statutory definition includes things in action and contains no exception derived from bankruptcy law. Where the later ascertainable value of property held when the confiscation order was made increases the realisable amount, article 21 requires the court, on the prosecution's application, to certify the increase.

The appellant pleaded guilty to obtaining property by deception. A confiscation order for £33,269.17 was made under the Proceeds of Crime (Northern Ireland) Order 1996. Before that order, he had acquired interests in his deceased parents' unadministered estates and a cause of action for false imprisonment.

After administration progressed, his inheritance was valued at £18,000. His false imprisonment claim was subsequently settled for £2,500. The prosecution obtained certificates under article 21 increasing the valuation of his realisable property by those amounts.

Morgan J upheld the inheritance certificate and granted the further certificate: [2004] NIQB 33. The Court of Appeal dismissed the appellant's appeal. The issues before the House concerned whether the assets were after-acquired property and whether a personal chose in action fell outside the statutory confiscation scheme.

1. Appeal dismissed unanimously. Lord Scott of Foscote delivered the leading speech. Lord Bingham of Cornhill, Baroness Hale of Richmond, Lord Carswell and Lord Neuberger of Abbotsbury agreed with his reasoning or conclusions.

2. Per Lord Scott, the appellant's interests in his parents' unadministered estates were property within article 3(1) of the Proceeds of Crime (Northern Ireland) Order 1996. Although a beneficiary has no proprietary interest in any particular asset before administration is complete, the beneficiary's interest in the estate is itself a proprietary chose in action. It is capable of assignment and devolution.

3. Commissioners of Stamp Duties (Queensland) v Livingston [1965] AC 694 did not establish otherwise. That decision concerned whether a beneficiary possessed an interest in specific property situated in Queensland. It recognised that the beneficiary possessed a chose in action relating to proper administration. Sudeley v Attorney General [1897] AC 11 confirmed the distinction between an interest in the residue and an interest in each specific estate asset.

4. The inheritance interest existed when the confiscation order was made, although its market value was then negligible. Once administration progressed and the parties attributed £18,000 to it, the realisable amount exceeded the amount originally taken into account. Article 21(2) therefore obliged the court, on the prosecution's application, to certify the increase. The provision conferred no discretion.

5. The pending false imprisonment claim was also property under article 3(1), which expressly included things in action. The statutory language contained no exception for causes of action having a personal character. The House could not import the distinction drawn in bankruptcy law between proprietary and personal claims. The later settlement sum represented the post-order value of a chose in action already held before the order.

6. The House left open the important and difficult question whether article 21 permits an increase based on property genuinely acquired only after the confiscation order. Neither certified sum was after-acquired property on the facts.

1. House of Lords: Dismissed the appeal unanimously: [2008] UKHL 9.
2. Court of Appeal in Northern Ireland: Dismissed the appeal and agreed that article 21 could apply to assets acquired after the original confiscation order. No citation is stated.
3. High Court of Justice in Northern Ireland: Morgan J refused to set aside the certificate increasing the realisable amount by £18,000 and ordered a further certificate for £2,500: [2004] NIQB 33.
4. Recorder of Belfast: Adjourned the prosecution's application to increase the confiscation order so that the appellant could seek to set aside the inheritance certificate.