Gaultier v Revenue Commissioners

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 06 July 2017
• Neutral Citation: [2017] IEHC 439
• Docket Number: [2012 No. 8487 P.]
• Court: High Court
• Date: 06 July 2017

BETWEEN

ARNAUD D. GAULTIER

PLAINTIFF

AND

THE REVENUE COMMISSIONERS, THE MINISTER FOR FINANCE, THE COURTS SERVICE, THE MINISTER FOR JUSTICE, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2017] IEHC 439

[2012 No. 8487 P.]

THE HIGH COURT

Practice & Procedures – Dismissal of action – Interlocutory injunction – Lack of cause of action

Facts: The plaintiff sought an interlocutory injunction against the first defendant for restraining it to collect unpaid taxes from the plaintiff. The defendants sought an order for the dismissal of the plaintiff's claim on the basis that it had disclosed no cause of action. The defendants contended that the claim of the plaintiff was related to the wrongful seizure of the company's wine by the first defendant, and since that company had been dissolved, the plaintiff, as a director of that company, did not have any locus standi to bring the said claim. The plaintiff contended that he was the owner of the wine and not the company.

Mr. Justice Noonan struck off the plaintiff's claim. The Court held that it was a well-settled law that a member of the company could not maintain a claim on behalf of the company. The Court noted that even if it was assumed that the plaintiff had been the owner of the wine in question and not the company, there was a delay in bringing the present claim. The Court observed that there was inordinate and inexcusable delay by the plaintiff in prosecuting the present claim as the defendants had yet to be served with the statement of claim. The Court noted that the issue in relation to which the injunction was sought by the plaintiff had no bearing on the main claim of the plaintiff and thus, an injunction could not be granted.

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of July, 2017

Introduction

1 There are three motions before the court in this matter which are as follows:

(1) An application by the plaintiff for interlocutory relief including an interlocutory injunction on foot of a notice of motion dated 6th October, 2016;

(2) A motion brought by the first defendant (the Revenue) seeking an order pursuant to O. 19 r. 28 of the Rules of the Superior Courts and/or pursuant to the inherent jurisdiction of the court striking out the plaintiff's proceedings on the grounds that they disclose no reasonable cause of action against the Revenue, are frivolous and vexatious and are bound to fail, on foot of a notice of motion dated 21st December, 2016;

(3) A motion brought by the second to sixth defendants inclusive seeking the same reliefs as the first defendant and in addition an order striking the proceedings out on various delay grounds including failure to deliver a statement of claim and that the claim is statute barred, on foot of a notice of motion dated 9th January, 2017.

2 It was agreed at the outset between the parties that the second and third motions should proceed first on the basis that if successful, they would dispose of the entire proceedings including the first motion.

Factual and Procedural Background

3 The plaintiff is a director and the sole member of a company called Loire Valley Ltd (the Company) which was incorporated in the State on 15th June, 2005. The Company's business was concerned with the importation of wine into the State from France. In the course of 2006, the Company appears to have imported a quantity of wine which was lodged in a bonded warehouse. It would appear that a dispute arose between the Company and the Revenue arising from the closure of the warehouse which resulted in the Revenue detaining the wine on or about 25th August, 2006 and on 22nd September, 2006 serving a seizure notice upon the Company stating that the wine was seized on that date and was liable to forfeiture under s. 125 of the Finance Act, 2001. The plaintiff disputes the alleged date of seizure for reasons which are not material to these applications.

4 The Company claimed that the detention and seizure of the wine was effected unlawfully and this led to certain without prejudice discussions taking place between the plaintiff, on behalf of the Company, and the Revenue. This appears to have resulted in a payment of €25,000 by the Revenue to the Company and after further discussions including at a meeting between the parties on 6th August, 2008, a further sum of €80,000 being tendered on that date by the Revenue by way of cheque payable to the Company. The latter cheque was never cashed. By letter of 13th August, 2008 from the Revenue to the Company, the Revenue referred to these matters and noted in relation to the tendered cheque:

'This cheque, in addition to the €25,000 already paid to Loire Valley Ltd, was tendered as recompense for the full invoice value of the seized wine, interest due to creditors, gross profit on its potential sale, loss of profits and time and trouble reasonably incurred by Loire Valley Ltd arising from the seizure. The combined amounts were tendered in full and final settlement of any liability in the matter and Revenue now regards the matter as closed.

The action of detaining and seizing the wine was taken with the bona fide intent of protecting revenue that was perceived to be at risk. However, this action obviously had an adverse effect on the activities of Loire Valley Ltd for which, in addition to the recompense tendered, Revenue offers its sincere apologies.'

5 On 6th April, 2012, the Company was dissolved having been struck off the Register of Companies for failing to file annual returns. Arising from this, the plaintiff brought judicial review proceedings in this court against the Registrar of Companies alleging misfeasance, malfeasance and breach of duty against the Registrar in relation to the manner in which the company was dissolved. In particular, the plaintiff alleged that because the effect of the dissolution was that the property of the Company vested in the Minister for Finance, the Registrar had colluded with the Minister to bring about this result. In her judgment delivered on 8th March, 2013 dismissing the application, Dunne J. described this allegation as one which was unsupported by any evidence and was disgraceful and scurrilous. At no time has the plaintiff sought to have the Company restored to the register and has not disputed that he could have done so.

6 It would appear that on or about 22nd August, 2012, the plaintiff sought to commence the within proceedings as a litigant in person. He appears to have prepared a plenary summons naming himself and the Company as plaintiffs and the Revenue, the Minister for Finance, Ireland and the Attorney General defendants. It would seem that the plaintiff may have attended at the Central Office on that date for the purpose of issuing the summons when it was pointed out to him that as a litigant in person, he was not entitled to issue proceedings on behalf of a company.

7 This is of course entirely aside from the fact that the Company was at this stage dissolved. As a result, the plaintiff redrafted the summons naming himself as sole plaintiff but with the addition of the Courts Service and the Minister for Justice as new defendants on the presumed basis that these latter parties were in some way responsible for the refusal to allow him to issue proceedings in the name of the Company. In the title to this plenary summons, the plaintiff also added the Comptroller and Auditor General and the Company as what are described as 'notice parties'.

8 The summons was accompanied by an affidavit sworn by the plaintiff and entitled 'Affidavit of Arnold D. Gaultier Setting Ground of Plenary Summons'. This appears to have been sworn by the plaintiff in the erroneous belief that it was required for the purpose of issuing the summons.

9 On 7th September, 2012, an appearance was entered on behalf of the Revenue by its solicitor and on 17th October, 2012, the Chief State Solicitor (C.S.S.) entered an appearance for the second, fourth, fifth and sixth defendants. On 22nd October, 2012, the plaintiff served a statement of claim on the Revenue but not on any other defendant. No statement of claim has since been served on the other defendants. On 16th January, 2013, the C.S.S. entered an appearance for the third defendant. Thereafter, the C.S.S. repeatedly called for the delivery of a statement of claim until eventually bringing a motion on behalf of the...