Criminal Assets Bureau v McN (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Feeney
• Judgment Date: 14 September 2009
• Neutral Citation: [2009] IEHC 414
• Court: High Court
• Docket Number: No. 619 R/2007
• Date: 14 September 2009

Criminal Assets Bureau v McN (J)

REVENUE

BETWEEN

THE CRIMINAL ASSETS BUREAU

PLAINTIFF

AND

J. McN.

DEFENDANT

[2009] IEHC 414

No. 619 R/2007

THE HIGH COURT

REVENUE

Practice and procedure

Assessment - Due and payable - No payment - No appeal raised in respect of assessments within statutory time limits - Summary judgment granted by Master - Appeal to High Court - Whether any bona fide defence at law or on merits - Legal status of assessments - Final and conclusive nature of assessments - Authorisation - Manner in which authorisation can be proved - Whether defendant could put in issue matter previously admitted - Specific statutory mechanism for proving that proceedings instituted in accordance with law - Certificate - Whether certificate exhibited defective on its face - Whether assessments deemed to be final and conclusive - Whether payment of sums stated in assessments duly demanded - Whether affidavits before court prove that sums remain due and payable - Absence of effective and proved certificate - Criminal Assets Bureau v PS [2004] IEHC 351, [2009] 3 IR 9 and Criminal Assets Bureau v P McS (Unrep, HC, Kearns J, 16/11/2001) considered - Criminal Assets Bureau Act 1996 (No 31), s 8 - Taxes Consolidation Act 1997 (No 39), ss 933, 958, 966(1) (3), (4), (5) and (6) and 1080(4) - Finance Act 2001 (No 7), s 236 - Finance Act 2005 (No 5), s 145 - Appeal dismissed (2007/619R - Feeney J - 14/9/2009) [2009] IEHC 414

Criminal Assets Bureau v McN (J)

CRIMINAL LAW

Proceeds of crime

Proofs - Summary judgment by Master of High Court - Appeal - Failure to plead that plaintiff had been authorised to bring case - Failure of defendant to deny plaintiff had been duly authorised - Form of proof of authorisation - Whether sufficient conflict of fact on affidavit such that case contested - Whether arguable defence - Whether assessments final and conclusive - Whether assessments properly proved - Whether certificate invalidated by rehearsal of redundant amending legislation - Criminal Assets Bureau v PS [2004] IEHC 351 (Unrep, Finnegan J, 19/10/2004) and Criminal Assets Bureau v PMcS [2001] IEHC 162 (Unrep, Kearns J, 16/11/2001) considered - Taxes Consolidation Act 1997 (No 39), ss 966 and 1080 - Criminal Assets Bureau Act 1996 (No 31) s 8 - Appeal dismissed (2007/619R - Feeney J - 14/9/09) [2009] IEHC 414

Criminal Assets Bureau v McN (J)

Facts summary judgment was granted by the Master in the sum claimed by the plaintiff for taxes and interest and penalties thereon. A certificate had been exhibited in the affidavit grounding the application for judgment which had been signed by the plaintiff and which certified that the sum claimed was due from the plaintiff. The defendant appealed to the High Court. The defendant submitted that the certificate exhibited in the affidavit was defective on its face and/or that it ought to be rejected because of the lack of proof that the plaintiff had been authorised to sue him in accordance with section 966(1) of the Taxes Consolidation Act 1997. He also contended that there was an issue as to whether the assessments raised were final and conclusive and had been properly proved before the Court.

Held by Feeney J in dismissing the appeal on the basis that the defendant had failed to identify any bona fide defence to the claim that the statutory authorisation of the plaintiff to prosecute proceedings could be established without oral or sworn evidence where it was pleaded and where the defendant put in a defence and counterclaim which expressly did not put such authorisation in issue. The manner in which such authorisation could be proved varied from case to case and there was no defined or obligated mechanism. Criminal Assets Bureau v. McS. (Unreported, High Court, Kearns J., 16th November, 2001) applied.

Section 966 of the Act of 1997 permitted proof by use of a certificate but did not oblige proof thereby nor did it create a situation where the proof of the matters which would be covered by the certificate could not be proved by other means or admitted by a defendant.

Reporter: P.C.

CRIMINAL ASSETS BUREAU ACT 1996 S8

TAXES CONSOLIDATION ACT 1997 966(5)

TAXES CONSOLIDATION ACT 1997 1080(4)

FINANCE ACT 2001 S236

TAXES CONSOLIDATION ACT 1997 966(1)

TAXES CONSOLIDATION ACT 1997 966

CRIMINAL ASSETS BUREAU (CAB) v S (P) UNREP FINNEGAN 19.10.2004 2004/11/2381 2004 IEHC 351

CRIMINAL ASSETS BUREAU (CAB) v MCS (P) UNREP KEARNS 16.11.2001 2001/4/912

TAXES CONSOLIDATION ACT 1997 966(3)

TAXES CONSOLIDATION ACT 1997 966(4)

TAXES CONSOLIDATION ACT 1997 966(6)

TAXES CONSOLIDATION ACT 1997 1080(5)

FINANCE ACT 2005 S145

TAXES CONSOLIDATION ACT 1997 958(2)

TAXES CONSOLIDATION ACT 1997 958(3)

TAXES CONSOLIDATION ACT 1997 933(6)(A)

Mr. Justice Feeney

1 2 1.1 The proceedings in this case were commenced by summary summons dated the 3^rd October, 2007. In those proceedings the plaintiff claimed €3,313,990.15 tax and interest as being due by the defendant to the Minister for Finance. The special endorsement of claim set out "short particulars" of the sum due for income tax and interest thereon for the period from the 1^st November, 2000 up to the 27^th September, 2007. The total amount of tax identified as being due was €1,791,168.75 and the total interest claimed up to the 27^th September, 2007 was €1,522,821.40 which together amounted to the claimed figure of €3,313,990.15.

2 3 1.2 Summary judgment was granted by the Master in the sum claimed on the 7^th March, 2008 and the defendant appealed that judgment to the High Court.

3 4 1.3 The defendant raised a preliminary issue before this Court which was based upon a claim that he had identified a sufficient conflict of fact on affidavit, sufficient to render the case as a "contested" case and thus deprive the Master of jurisdiction, under the Rules of the Superior Courts, to grant a summary judgment. Having heard arguments in relation to this matter, the Court rejected the defendant's contention and held that the defendant had not shown cause by affidavit before the Master and that the Master had, therefore, jurisdiction to grant summary judgment.

4 5 1.4 The defendant contended in written submission at that time that he had not only an arguable defence but in the alternative even if he did not have an arguable defence, there was an arguable case that the Courts and Court Officers Acts and/or the Rules of the Superior Courts are unconstitutional and/orultra vires insofar as they purport to grant the Master power to make the order in question. It was argued that even if there was no arguable defence under the Taxes Consolidation Act 1997, the defendant had an arguable case that the Act is unconstitutional and/or contrary to the European Convention on Human Rights to the extent that it precluded the defendant having an appeal in the present case. These were the grounds expressly relied upon by the defendant in his written skeleton argument to the Court dated the 18^th December, 2008.

5 6 1.5 The Court dealt with the first of those three issues in an earlier decision given by this Court. The second and third grounds which were initially identified and which were set out in the defendant's written submission were not pursued. At a later date the defendant raised a number of entirely new and separate points which had neither been argued before the Master nor included in the original written submissions to Court.

6 7 2.1 The Chief Bureau Officer of the plaintiff swore an affidavit grounding the application for judgment on the 27^th November, 2007. In that affidavit he averred that "the plaintiff is an Officer of the Revenue Commissioners nominated by the Revenue Commissioners to exercise any of the powers and functions of the Collector General and that he is also a Bureau Officer appointed to the Criminal Assets Bureau pursuant to s. 8 of the Criminal Assets Bureau Act 1996". He also averred that he swore the grounding affidavit on behalf of the plaintiff, that is, the Criminal Assets Bureau. In that affidavit a certificate was exhibited. The certificate exhibited was headed as being "pursuant to ss. 966(5) and 1080(4) of the Taxes Consolidation Act 1997, both as amended by s. 236 of the Finance Act 2001". That certificate certified that before the institution of these proceedings that a sum of €1,791,168.75 for income tax became due and payable by the defendant herein under assessments which had become final and conclusive and that before the institution of these proceedings payment of the said sum was duly demanded from the defendant and that the sum remains due and payable. The certificate also stated that an amount of €1,522,821.40 for interest is due and payable up to the date of the certificate which was the 27^th November, 2007. The certificate was signed "Criminal Assets Bureau". The affidavit of John O'Mahoney went on to aver that the sum claimed was lawfully due by the defendant and that the defendant had no bona fide defence at law or on the merits and that the defendant had paid no sum on account since the commencement of the proceedings.

7 8 2.2 An affidavit in reply was sworn by Danny McNamee, the defendant's solicitor, on the 14^th February, 2008. In that affidavit it was averred that the defendant had instructed his solicitor that he had a good defence to the proceedings and it was acknowledged that the proceedings related to a claim for income tax for the financial years 2000/01 to 2006/07 up to September 2007. The affidavit went on to aver that the defendant had engaged the services of accountants and had instructed those accountants to finalise tax returns for the years in question and that the work was, as of the date of the swearing of the affidavit, well in hand and was due to be completed within approximately two weeks. It was averred that the defendant had instructed his solicitor that the...