Gaultier v The Revenue Commissioners
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 27 April 2022 |
| Neutral Citation | [2022] IECA 120 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record Nos. 2017/00191 2017/00491 |
[2022] IECA 120
Edwards J.
Kennedy J.
Binchy J.
Court of Appeal Record Nos. 2017/00191
2017/00490
2017/00491
THE COURT OF APPEAL
Unfair treatment – Partiality – Preliminary issues – Appellant appealing against various High Court orders – Whether appellant demonstrated error on part of trial judge
Facts: The appellant, Mr Gaultier, appealed to the Court of Appeal against the order of the High Court (O’Connor J) of the 3rd of April 2017, wherein the judge refused the appellant’s application to change the name on a pleading, specifically from ‘affidavit’ to ‘Statement of Claim’. The appellant’s affidavit was filed on the 22nd of August 2012 and averred to events before and after the seizure of the appellant’s wine by the first respondent, the Revenue Commissioners. The appellant contended that the judge was not impartial, specifically that he refused to review the affidavit and based his decision on the submissions of counsel, whom he said were ‘former peers’ of the trial judge, thus contravening Article 40 of the Constitution and Article 6 of the European Convention on Human Rights (the ECHR) and Article 13 of the ECHR and Article 47 of the Charter of Fundamental Rights. In effect, the appellant contended that the judge was biased in the manner he came to his decision. Moreover, at the appeal hearing, when Mr Gaultier was pressed by the Court of Appeal to say where, in terms of the actual decision he was appealing against, he contended that the trial judge was in error and he stated that the judge had failed to provide reasons for his decision. The appellant’s second and third appeals were against the decision of the High Court (Noonan J) to dismiss/strike out the appellant’s proceedings as against the first respondent, and against the second to sixth respondents, the Minister for Finance, the Courts Service, the Minister for Justice and Equality, Ireland and the Attorney General, respectively, and awarding the costs of the proceedings in both instances, including the costs of the successful motions, in favour of the moving parties and against the appellant. The grounds of appeal were laid out in the appellant’s notice of appeal as: Part A, entitled “Unfair treatment of the Plaintiff’s motion”; Part B entitled “Plaintiff’s submissions’ preliminary issues not addressed”; Part C entitled “Demonstrated Partiality of the learnt (sic) judge in favour of the Defendants”, and Part D entitled “Failing all Bangalore Principles of Judicial Conduct arising from Functional Elements”.
Held by Edwards J that the appellant had failed to demonstrate an error on the part of the trial judge. As the Court had not been disposed to uphold any of the appellant’s grounds of appeal, all three appeals were dismissed.
Edwards J held that, as the appellant had been wholly unsuccessful in his appeals, the Court’s indicative order as to costs was that the appellant should be ordered to pay the costs of the respondents incurred in connection with the appeals, the amount of which should be determined by adjudication in default of agreement.
Appeals dismissed.
Judgement of the Court delivered on the 27 th day of April 2022 by Mr Justice Edwards.
This judgment is in respect of three appeals by the appellant against various Orders of the High Court made on foot of motions brought and heard in these proceedings. The three appeals were sensibly heard together for the convenience of the court, the parties and to minimise legal costs. Later in this judgment we will identify each of the motions leading to the Orders under appeal in chronological order, and address the issues raised in the appeals. However, before doing so we consider that it will be helpful to gain an understanding of the context in which these motions were brought and heard, to set out the background to the proceedings, and (to the extent relevant) the procedural history of this and some related litigation.
Between them, the submissions of the parties set out a reasonably comprehensive account of the background and procedural history and we draw on those submissions and previous court judgments, for the purposes of the following summary.
At the outset, however, it should be identified that central to many of the controversies in this and related litigation is a longstanding rule of law, traceable back to 1843 at least, in the English case of Foss v. Harbottle (1843) 2 Hare 461, that the proper plaintiff for a wrong done to a company, is the company itself; and the related rule, established in so far as this jurisdiction is concerned in Battle v. Irish Art Promotion Centre Limited [1968] I.R. 252, that a limited company cannot be represented in court proceedings by its managing director or other officer or servant. It is no longer possible to express what lawyers had come to refer to as the “rule in Battle” in such absolute terms following a recent nuancing of it by the Supreme Court in Allied Irish Bank Plc v. Aqua Fresh Fish Ltd [2019] ILRM 19. Nevertheless, the general rule (to which it is now, post the Aqua Fresh Fish case, accepted that exceptions may be permitted on a discretionary basis in exceptional circumstances) remains to the effect that a company cannot sue as a self-represented litigant (i.e., unrepresented by a lawyer), or be represented by a shareholder or director, or other interested party.
The appellant was a director and sole member of a company, now dissolved, called Loire Valley Limited, (hereinafter “the Company”), incorporated in the State on the 15 th of June 2005. The Company's business was the importation of wine into the State. In the course of 2006, the Company appears to have imported wine, which was lodged in a bonded warehouse. On the closure of that warehouse, the Revenue Commissioners (i.e., the first named respondent) detained the Company's wine on the 25 th of August 2006, and served a notice of seizure on the Company.
The Company maintained that the detention and seizure had been effected unlawfully. Arising from this, the first named respondent, on a without prejudice basis, made a payment of €25,000 to the Company. After further discussions a further cheque payable to the Company in the amount of €80,000 was tendered, again on a without prejudice basis, to the appellant in his capacity as an officer of the Company, but it was never cashed. A subsequent offer to pay the Company the sum of €85,000 in full and final settlement of any liability in the matter was not accepted by the Company.
Notwithstanding that there had been unsuccessful efforts to negotiate a settlement, it remained open to the Company to attempt to sue the party (or parties) that it considered to have been guilty of unlawful action(s), and to have caused it loss or damage in consequence thereof, in civil litigation.
It appears to be common case, and accepted by all concerned, that if the Company had a potentially good claim arising from unlawful action taken by the Revenue Commissioners, the applicable limitation period would have been six years from the accrual of the cause of action. As the alleged unlawful action by the Revenue Commissioners had occurred on a date in August 2006 (the precise date in August is unclear on the paperwork before us), the six-year limitation period would therefore have elapsed on the corresponding date in August 2012.
However, on the 6 th of April 2012, the Company was dissolved, by virtue of being struck off the Register of Companies for failing to file returns. This occurred in circumstances where no legal action against anybody arising out of the events of August 2006 had been commenced by the Company up to that point in time. This was not necessarily a fatal development in terms of any potential claim. Although the time available within which to do so was tight qua the impending expiration of the limitation period, it was open to the appellant, as the sole member, to seek to have the Company restored to the register by invoking a well-established statutory procedure. Regrettably from his perspective, he did not opt to do so.
Instead, the appellant first sought to issue High Court proceedings against the Revenue in the name of the Company notwithstanding that it stood dissolved and, according to the appellant, the Central Office refused to accept them (we infer this was because the Company was not legally represented). The appellant then applied to the High Court for leave to issue his intended proceedings on behalf of the Company. This application was heard by Laffoy J. on the 18 th of June 2012, and the application was refused on Battle grounds.
Next, the appellant brought proceedings by way of judicial review seeking to quash the Order of the Registrar striking off the Company. He was granted leave to apply on the 5 th of July, 2012. Pending the hearing of the substantive application in due course, the appellant then brought a motion, dated the 18 th of July 2012, in those proceedings which, although the appellant later claimed he was only seeking to amend his Statement of Grounds to include a claim for interim or interlocutory injunctive relief, was interpreted by the High Court (Murphy J.) as actually seeking an interim or interlocutory injunction to compel the restoration of the Company to the Register on an interim basis. That motion was refused on the 19 th of July 2012.
The appellant subsequently appealed to the Supreme Court against the refusal of his said motion (Supreme Court Appeal No 353/2012), but the Supreme Court took the view that the issues were moot on the basis that if the intention had been to seek an injunction pending the hearing of the substantive action,...
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