Doyle v Judge Hickson

JurisdictionIreland
JudgeMr. Justice Barr
Judgment Date06 May 2016
Neutral Citation[2016] IEHC 281
CourtHigh Court
Docket Number[2014 No. 709 J.R.]
Date06 May 2016
BETWEEN
JAMES DOYLE
APPLICANT
AND
JUDGE HICKSON

AND

THE REVENUE COMMISSIONERS
RESPONDENTS

[2016] IEHC 281

[2014 No. 709 J.R.]

THE HIGH COURT

Revenue – Waiver of Certain Tax, Interest and Penalties Act, 1993 – Tax amnesty – The Taxes Consolidation Act 1997 – Production of amnesty certificate

Facts: The applicant sought an order of certiorari for quashing the order of the Circuit Court determining the tax liability of the applicant. The applicant contended that the learned Circuit Court Judge had made an error of law while holding that the second named respondent was entitled to hold further enquires for assessment of tax liability covering the period for which the amnesty certificate was issued.

Mr. Justice Barr refused to grant an order of certiorari to the applicant. The Court held that S. 5 of the Waiver of Certain Tax, Interest and Penalties Act, 1993, conveyed that a taxpayer was mandated to produce an amnesty certificate and on each instance, an enquiry for ascertaining his tax liability was commenced by the second named respondent so as to enable it to apply to the Appeal Commissioner for continuation of an authorization. The Court held that the term ‘precluded from continuing with or commencing the said enquiries’ as appearing under s. 5(1) of the Act of 1993 could not be taken to mean that the second named respondent would be precluded from initiating into the tax liabilities of a person in the absence of sufficient evidence to show that the declaration made by that person on foot of which an amnesty certificate was obtained contained untrue statement. The Court held that such an interpretation would be contrary to the interests of the second named respondent and would give rise to a plethora of cases where amnesty certificates would be obtained on false grounds.

JUDGMENT of Mr. Justice Barr delivered on the 6 th day of May, 2016
1

This case concerns the operation of the Waiver of Certain Tax, Interest and Penalties Act, 1993. The central issue arising for the court's determination is whether, pursuant s. 5 of the 1993 Act, the production of a certificate issued by the Chief Special Collector under s. 2(4)(a) of the 1993 Act (‘the certificate’) in response to a particular enquiry by the Revenue Commissioners, within 30 days of the commencement of such enquiry, precludes all further enquiries in respect of the period covered by the certificate; or whether further enquiries may be commenced by the Revenue Commissioners, thereby necessitating the holder of the certificate to produce the certificate in response to each subsequent enquiry. As such, this case comes down to a net point of statutory interpretation.

Extension of time
2

Before turning to the substantive issues raised by the applicant, it is necessary to first deal with his application to extend time within which to initiate these proceedings.

3

The ruling of the Circuit Court which is impugned by the applicant in this case was made on 9 th April, 2014; the applicant's ex parte application for leave to seek judicial review, however, was not made until 24 th November, 2014. This was outside the three month time limit laid down by Order 84, rule 21, of the Rules of the Superior Courts (as amended by S.I. No. 691 of 2011) which provides as follows:

‘21. (1) An application for leave to apply for judicial review shall be made within three months from the date when grounds for the application first arose.

(2) Where the relief sought is an order of certiorari in respect of any judgement, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgement, order, conviction or proceeding.

(3) Notwithstanding sub-rule (1), the Court may, on an application for that purpose, extend the period within which an application for leave to apply for judicial review may be made, but the Court shall only extend such period if it is satisfied that:—

(a) there is good and sufficient reason for doing so, and

(b) the circumstances that resulted in the failure to make the application for leave within the period mentioned in sub-rule (1) either—

(i) were outside the control of, or

(ii) could not reasonably have been anticipated by the applicant for such extension.’

4

The applicant avers that the reason for his delay in bringing the within application was due to the deterioration of his relationship with his solicitor following the Circuit Court hearing on 9 th April, 2014. He stated that in June 2014 his son, Neil Doyle, collected the relevant file from the applicant's former solicitors. This file of papers contained advices of counsel dated 10 th April, 2014, which informed the applicant of his right to bring a judicial review of the decision of the Circuit Court and the time limits within which to bring such an action. However, the applicant stated that by the time he had read these advices, he was out of time to bring an application for judicial review. The applicant averred that he always had the intention of appealing and reviewing the decision of the Circuit Court but that due to ‘mistakes and errors and miscommunications, as set out above and not predominantly due to fault by myself, the time expired…’ He therefore asked the court to grant an extension of time.

5

The respondents opposed the applicant's application for an extension of time. It was submitted that the applicant failed to proffer any explanation for the delay in progressing matters from the time he received the advises of counsel in June 2014 until November 2014, when the proceedings were finally instituted. The respondent submitted that it was clear from the observations in the textbook, ‘Civil Procedure in the Superior Courts’, 3 rd ed., by Delaney and McGrath, that the new rules require much stricter adherence to time limits for judicial review and that even where the court, on an ex parte application, has granted an extension of time, as happened in this case, it is still a proper matter for the court on the application for judicial review to consider and have regard to. The learned authors state as follows at para. 30-36:

‘Even if leave is granted on the basis that any delay is not such as to disentitle the applicant from seeking judicial review, the issue of delay may still be raised at the hearing of the substantive application and may debar an applicant from obtaining relief at this stage.’

6

In this regard, reference was made to the judgment of Hederman J. in O'Flynn v. Midwestern Health Board [1991] 2 IR 223 where he stated, at p. 236:

‘Even if leave is granted at the ex parte stage, nonetheless, when the trial judge comes to hear the matter he must adjudicate upon whether the delay was reasonable and such as may be excused or not.’

7

Order 84, rule 21(3) makes it clear that the court shall only grant an extension of time if it is satisfied that there is good and sufficient reason for doing so, and that the circumstances which resulted in the failure to make the application within the time limits were either outside the applicant's control or could not reasonably have been anticipated by the applicant.

8

In this regard, I note the dictum of Costello J. in O'Donnell v. Dún Laoghaire Corporation [1991] ILRM 301 at p. 315:

‘The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.’

9

I am of the view that the applicant has provided a justifiable excuse for the delay that occurred from the point at which he avers to having received the file containing the advices of counsel in June 2014, and his eventual initiation of proceedings in November 2014, some seven months after the decision of the Circuit Court.

10

In circumstances where the applicant had received an adverse finding against him in the Circuit Court and where he subsequently fell out with the solicitor who represented him at that hearing, I accept his excuse that he had corresponded with the Appeals Commissioners in relation to bringing an appeal against the Circuit Court decision and was told that he could proceed by way of an application for a case stated or proceed by way of judicial review. He submitted his own handwritten application to the County Registrar seeking to have a case stated on 24 th April, 2014. Thus I am satisfied that the applicant did not sit back and do nothing.

11

While the applicant did receive his file from his former solicitor in June 2014, he was essentially a lay litigant at that stage. I accept that he did not retain the services of his present solicitor, Mr Brannigan, until 7 th October, 2014. It was only then that the applicant became aware of the difficulties in proceeding by way of judicial review. He acted with considerable speed in retaining the services of counsel to draft the necessary documentation. The ex parte application was moved on 24 th November, 2014.

12

I am satisfied that in these circumstances, the applicant has established good and sufficient reason for extending the time within which he be allowed to bring this application. I am further satisfied that after the breakdown of relations with his former solicitor, it was essentially beyond the applicant's control to institute the within proceedings within the statutory time limit.

13

Accordingly, I think that it is reasonable to...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT