Doe & Anor v The Revenue Commissioners, [2008] IEHC 5 (2008)

Docket Number:2007 62 IA
Judge:Clarke J.









    Judgment of Mr. Justice Clarke delivered on the 18th day of January, 2008.

    1. Introduction

      1.1 Many parties would prefer that their involvement in legal proceedings might be kept confidential or, at a minimum, that confidence might attach to at least certain aspects of the evidence which the court might have to hear in order to properly determine the litigation in question. However, the Constitution, and in particular Article 34.1, places a high value on the administration of justice in public. The circumstances in which a court is, therefore, entitled to conduct legal proceedings in private, or to direct that information which formed part of the court's consideration should not be made public, are significantly limited.

      1.2 This judgment is concerned with those limitations. The intending plaintiffs ("the plaintiffs") brought a preliminary application in advance of issuing proceedings, designed to obtain the court's approval for the issuing of such proceedings under the assumed name referred to in the title above, together with directions designed to allow for the conduct of the intended proceedings at least partially in camera. While that preliminary application was heard, in theory, on an ex parte basis, the Revenue Commissioners ("the Revenue"), as the proposed defendants, had been informed of the plaintiffs' intention to bring the application, requested that they be heard, and were, without objection, heard on the issue. The hearing occurred on the 11th December, 2007.

      1.3 For reasons which will become clear in the course of this judgment, the application was one of some considerable urgency in that the proceedings, if they were to go ahead, required, if they were to be of any affect, a final decision of the court not later than 31st December, 2007. It was also by no means clear as to whether the plaintiffs would wish to go ahead with the substantive proceedings unless they were given permission to conduct same under an assumed name. In those circumstances it was important that a decision in principle, on the entitlement or otherwise of the plaintiffs to maintain the proceedings under an assumed name, was made as soon as practicable and in sufficient time to allow the substantive proceedings to be heard (if necessary) in time that a judgment be delivered prior to the Christmas vacation. For those reasons I indicated to the parties that I would rule on the matter (without giving reasons) on the day following the hearing and reserve until a future occasion a detailed judgment outlining my reasons for that ruling.

      1.4 On the 12th of December, 2007 I ruled to the effect that I was not persuaded that it was appropriate to permit the plaintiffs to maintain these proceedings under an assumed name. Counsel for the plaintiffs sought an opportunity to take instructions from her clients in the light of the ruling which I had delivered. When those instructions were forthcoming, counsel indicated that it was not her clients' intention to maintain the substantive proceedings and, in that sense, the proceedings never, in reality, were commenced.

      1.5 This judgment is directed towards setting out the reasons why I ruled as I did. It is appropriate to look first at the background to the intended proceedings.

    2. Factual background

      2.1 I should emphasise that the court was not told the names of the actual plaintiffs. Evidence was placed before the court on behalf of the plaintiffs by their solicitor. I should also emphasise that, in taking that course of action, I was following the practice adopted by McCracken J. in Re Ansbacher (Cayman) Limited [2002] 2 I.R. 517. In that case a preliminary issue as to whether, on the facts of the relevant case, the court had any power to order a hearing in camera or in some other way limit the publication of the applicants' names, was determined by McCracken J. in circumstances where the relevant preliminary application was maintained in the name of the applicants' solicitors. As McCracken J. pointed out, at p. 520 of the judgment, there is something of the chicken and the egg about such matters.

      2.2 I agree with McCracken J. that the appropriate solution to any such difficulties is that a party is entitled, without revealing its identity, to apply to court for permission to maintain proceedings anonymously or in some other manner which would have the effect of maintaining confidentiality in respect of the identity of the party concerned. However, I also agree with McCracken J. that the court should not go on to consider the merits of any substantive application without first determining whether it is appropriate for that substantive application to be brought in confidence. I use the term "in confidence" to encompass any circumstances where the court is invited to make an order which would limit public access to the identity of a party or parties to litigation. The nature of the substantive application which the party concerned might wish to bring should only be considered to the extent that it may be necessary to enable the court to rule on the entitlement to bring the proceedings in confidence.

      2.3 To that extent only it was necessary to address the issues which the plaintiffs wished to raise in the substantive proceedings. As appears from the affidavit of their solicitor, the plaintiffs, on 24th October, 2007, entered into a settlement agreement with the Revenue whereby a specified sum was accepted by the Revenue as settling all of the liabilities of the plaintiffs to the Revenue for years up to and including 2001.

      2.4 Previously, on the 25th September, 2007, the Revenue had written to the plaintiffs' taxation advisers to acknowledge receipt of a cheque for 1,136,685 in settlement of liabilities under a scheme called "Disclosure of Undeclared Liabilities by Holders of Off-Shore Assets". That letter also confirmed acceptance of the relevant sum in settlement of additional liabilities for the tax years specified and further stated that details of the settlement "will be published in due course in Iris Oifigiúil". It is clear that both before, and after, that letter, the plaintiffs' taxation advisers and officials of the Revenue had been in debate as to the question of whether publication of the relevant details of the settlement which had, in principle, been reached, was legally mandated. The plaintiffs' taxation advisers put forward an argument to the effect that it was not. The Revenue disagreed.

      2.5 On the basis of their interpretation of the relevant provision of the Taxes Acts, the Revenue maintained that there was a legal obligation to publish the settlement terms not later than 31st December, 2007 and indicated an intention so to publish. It was with a view to preventing such publication that the plaintiffs wished to initiate these proceedings. Had the plaintiffs proceeded with the substantive proceedings (whether anonymously or otherwise) it was their stated intention either to seek an interlocutory injunction restraining the relevant publication or, alternatively, and, in practice, more likely, to have sought to arrange for a full hearing of the case in very early course so as to have the substantive issue decided in time, so that the legal position in relation to publication was clear prior to 31st December, 2007.

      2.6 It is not necessary, for the reasons which I have set out, to go into the merits of the case which the plaintiffs wished to bring. However, in brief terms, the issues between the plaintiffs and the Revenue centred on the proper interpretation of certain provisions of the Taxes Consolidation Act, 1997, ("the 1997 Act") (as amended). Section. 1086 of the 1997 Act (as amended) provides for the publication of the names of certain tax defaulters. Sub-section (2) of that section obliges the Revenue, in respect of each quarterly period, to compile a list of names, addresses and occupations of persons on whom fines or penalties were imposed by a court under the Taxes Acts or in relation to a tax or in respect of whom the Revenue Commissioners refrained from initiating or settled proceedings for the recovery of any such fine or penalty because of an agreement entered into whereby the Revenue accepted a sum of money in settlement of a claim for a tax which included interest, fines or penalties in respect of that tax.

      2.7 Sub-section (3) (which is, in terms, stated to be "notwithstanding any obligation as to secrecy imposed on them by the Taxes Acts or the Official Secrets Act, 1963") requires the Revenue to publish the list concerned before the expiration of three months from the end of the quarter in which the event giving rise to the inclusion in the list occurred. Sub-section (4) as amended by, in particular, s. 126(1)(d)(iv) of the Finance Act, 2002, provides an exclusion from publication in a number of cases including what is, for the purposes of this case, the relevant category, being a situation where the relevant fine or penalty does not exceed 15% of the amount of tax included in the settlement concerned.

      2.8 The penalties...

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