Harrahill v Brannigan
 IECA 42
THE COURT OF APPEAL
676/2014 - Kelly Irvine Hogan - Court of Appeal - 2/3/2015 - 2015 IECA 42
Legal Professionals – Tax Arrears – Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations 1999 – Tax Clearance Certificate – Cross-Claims
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 2nd day of March 2015
1. This is an appeal by the defendant, Mr. Brannigan ("the defendant") against the decision of the High Court dated 12 th November 2012 (Cross J.) whereby it was ordered that the plaintiff, who is the Collector General, recover the sum of €188,412 in respect the arrears of taxes (including income tax, PRSI and VAT payments) due from the defendant. In his ruling Cross J. accepted that the plaintiff was entitled to summary judgment in respect of this sum.
2. The defendant had originally appealed to the Supreme Court against the decision of Mr. Justice Cross. This appeal was, however, transferred to this Court by direction of the Chief Justice (with the concurrence of the other members of the Supreme Court) pursuant to Article 64 of the Constitution, following the establishment of the this Court on 29 th October 2014.
3. The defendant is a solicitor who unfortunately fell into arrears with his tax affairs some time ago. As it happens, he has not been able to obtain a tax clearance certificate since his last certificate lapsed in June 2004. So far as this appeal is concerned, Mr. Brannigan does not really dispute but that substantial sums are due to the Revenue Commissioners. He contends, however, that by reason of a conversation which he had with a Revenue official, Mr. Michael Cunningham, on 12 th August 2010, he had obtained an agreement which he could enforce to defeat the present application. Mr. Brannigan contended on affidavit that, as a result of the meeting, the following was agreed:
i "(i) A limited Tax Clearance Certificate would be issued by Revenue so that the Criminal Legal Aid of the Department of Justice would, on his behalf, make payments due to him directly to Revenue's Collector General.
(ii) The appellant agreed to his Criminal Legal Aid earnings being "attached" to meet the tax arrears of current taxation due to Revenue:
(iii) On receipt of the limited Tax Clearance Certificate, the appellant would lodge claims in respect of his substantial work which had been done by him but which had not been previously claimed by him:
(iv) Revenue would take no further enforcement proceedings against the appellant provided that he agreed to credit the Collector General directly with his Criminal Legal Aid earnings:
(v) Revenue would not "attach" his earnings in respect of his prosecution work for the Fisheries Board."
4. These contentions were specifically denied in two replying affidavits filed by another Revenue official, Ms. Tait and by Mr. Cunningham himself. Ms. Tait contended that there was no such agreement, a contention underscored by Mr. Cunningham in his affidavit. The fundamental point made by Ms. Tait was that the Revenue Commissioners could not have issued a tax clearance certificate to Mr. Brannigan given the existence of the arrears and the fact that he had had no such certificate since June 2004.
5. There is no doubt but that a significant portion of the defendant's income from legal practice was - or, at least, should have been - derived from legally aided criminal defence work. There seems little doubt but that the defendant did represent a large number of accused persons in respect of which, all other things being equal, he would have been entitled to payment under the terms of the Criminal Justice (Legal Aid) Scheme.
6. Unfortunately, all other things were not equal, because the defendant's entitlement to payment in respect of the Criminal Justice (Legal Aid) Scheme is, in fact, governed by the provisions of the Criminal Justice (Legal Aid) (Tax Clearance Certificate) Regulations 1999 ( S.I. No. 135 of 1999)("the 1999 Regulations"). Article 4(2) of the 1999 Regulations makes it clear that a solicitor cannot have their name added to the solicitorsrsquo; panel unless a tax clearance certificate is supplied by that solicitor:
2 "(2) Notwithstanding the provisions of Regulation 4 (2) of the Principal Regulations (as amended) the County Registrar shall not add the name of the solicitor concerned to the solicitorsrsquo; panel until a tax clearance certificate has been furnished to the County Registrar concerned."
7. Article 11 of the 1999 Regulations provides in relevant part as follows:
2 "(1) Responsibility for ensuring eligibility for inclusion or retention of a solicitors name on a solicitorsrsquo; panel shall at all times remain the responsibility of the solicitor concerned.
(2) No fees under the Criminal Justice (Legal Aid) Regulations should be payable to a solicitor accepts an assignment to a case if his or her name is not, the date of the assignment, on the relevant solicitorsrsquo; panel.
(3) A solicitor shall be entitled to payment of fees under the Criminal Justice (Legal Aid) Regulations where at the time of the assignment was made the name of the solicitor concerned was on the relevant solicitorsrsquo; panel…"
8. It is perfectly clear from the terms of the 1999 Regulations that a solicitor who accepts an assignment in respect of a matter which might otherwise be covered by the 1999 Regulations is not entitled to payment unless his or her name is at the time of the assignment on the relevant solicitorsrsquo; panel. The provisions of Article 11(1) of the 1999 Regulations further presuppose that the relevant solicitor would have obtained the necessary Tax Clearance Certificate, which, as Article 4(2) of the 1999 Regulations make clear, is a precondition for inclusion, and, for that matter, remaining, on the solicitorsrsquo; panel in respect of defence criminal legal aid work
9. These difficulties were brought to a head in the present case on 6 th April 2011 when the Revenue Commissioners wrote to the defendant drawing his attention to the effect of these provisions. The letter continued:
"We have been informed by the Department of Justice that your name was not on the relevant panel and that fees are not payable to you for cases in which you accepted assignment at the time. Therefore, currently, there are no fees for Revenue to attach to aid in the satisfaction of your liabilities…With respect to your issue of tax clearance, this will not be forthcoming until your tax clearance liabilities are cleared. I understand that Ms. O'Brien has offered you the opportunity to enter into a concessional instalment arrangement for the rest of your debts and you have refused."
10. This letter really summed up the extent of the defendant's difficulties. Because he had no tax clearance certificate, he could not have his name entered on the solicitor's legal aid panel. This has then led to the unfortunate situation that he was not entitled to be paid for the work which he had done. In other words, the projected...
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