Howley v Moorehouse

• Jurisdiction: Ireland
• Judge: Mr Justice Barr
• Judgment Date: 10 November 2023
• Neutral Citation: [2023] IEHC 628
• Court: High Court
• Docket Number: [Record No. 2022/98R]

Between

Joseph Howley

Plaintiff

and

Christopher Moorehouse

Defendant

[2023] IEHC 628

[Record No. 2022/98R]

THE HIGH COURT

Summary judgment – Remittal – Plenary hearing – Plaintiff seeking summary judgment – Whether the matter should be remitted to plenary hearing

Facts: The plaintiff, Mr Howley, the Collector General of the Revenue Commissioners, applied to the High Court for summary judgment against the defendant, Mr Moorehouse, in the sum of €2,026,454.48 in respect of unpaid income tax and interest thereon, assessed to be payable for the years 2004-2015. The principal sum of income tax was assessed as due and owing in the sum of €968,934.00, with the sum of €1,057,520.48, claimed as interest thereon. At the hearing of the application, counsel on behalf of the defendant submitted that the matter should be remitted to plenary hearing on the basis of the following defences which the defendant maintained were available to him: (a) having regard to the fact that the assessments which were raised by the plaintiff were served on the defendant on 7th February 2018, and having regard to the fact that the summary summons was not issued by the plaintiff until 15th July 2022, the plaintiff unreasonably delayed in pursuing the debt claimed and had allowed penalising interest to accrue, thereby disentitling him from judgment in the full sum claimed; (b) s. 93(7)(d) of the Taxes Consolidation Act 1997 afforded the defendant an opportunity to regularise his tax affairs when the proceedings conclude and any orders which the court was satisfied should be made in favour of the plaintiff should take account of that provision and therefore any order of the court should provide for “liberty to apply” in the event that the defendant was successful in any late appeal that he may bring before the Tax Appeal Commission (TAC). On behalf of the plaintiff, it was submitted that as the assessments had been properly raised by the plaintiff and as the defendant had lodged an appeal thereto, which appeal had been refused by the TAC, the amounts claimed in the assessments had become “final and conclusive”, including the statutory interest applicable thereto, such that it was not open to the court to question the factual basis of the sums claimed in the summary summons and that in those circumstances, the plaintiff had established that the defendant had no defence to his claim.

Held by Barr J that, having had regard to Harrisrange Ltd v Duncan [2003] 4 IR 1, the court did not have jurisdiction to question the amount claimed in the assessments, particularly as the defendant had already exercised his right to appeal and the TAC had given a determination refusing the appeal. Barr J held that the interest that applied thereafter, due to the non-payment of the outstanding tax, up to 9th May 2022, being the date of referral of the taxes and interest for collection which was made by the plaintiff to his solicitors, arose by operation of law, and not due to any delay on the part of the plaintiff in instituting the proceedings. Barr J did not accept the submission that there had been an unjust enrichment on the part of the plaintiff due to any delay on his part in instituting the proceedings. Barr J noted that the defendant had not pointed to any detriment or loss that he had suffered due to the fact that the summons was not issued until over four years after the assessments were first raised. Barr J held that it was not appropriate for the court to remit the matter to plenary hearing. Barr J held that it is normally only appropriate for a court to insert the provision “liberty to apply” where there is a possibility that there is some further step that may need to be taken in relation to the matter which is the subject matter of the court’s order. Barr J noted that in this case, the court proposed granting final judgment to the plaintiff; there was no further aspect of the matter that needed to come back before the court. Accordingly, Barr J held that it was not appropriate to insert such a provision into the final order of the court.

Barr J granted final judgment to the plaintiff against the defendant in the sum of €2,026,454.48, in accordance with para. 1 of the plaintiff’s notice of motion filed on 14th November 2022.

Summary judgment granted.

JUDGMENT of Mr Justice Barr delivered electronically on the 10 ^th day of November 2023.

Introduction.

1 . The plaintiff is the Collector General of the Revenue Commissioners. The defendant describes himself as a retired agricultural painter.

2 . This is an application by the plaintiff for summary judgment against the defendant in the sum of €2,026,454.48 in respect of unpaid income tax and interest thereon, assessed to be payable for the years 2004–2015. The principal sum of income tax was assessed as due and owing in the sum of €968,934.00, with the sum of €1,057,520.48, claimed as interest thereon.

3 . While a number of defences were initially put forward by the defendant in his replying affidavits, at the hearing of the application, counsel on behalf of the defendant submitted that the matter should be remitted to plenary hearing on the basis of the following defences which the defendant maintained were available to him:

(a) having regard to the fact that the assessments which were raised by the plaintiff in this case, were served on the defendant on 7 ^th February 2018, and having regard to the fact that the summary summons was not issued by the plaintiff until 15 ^th July 2022, the plaintiff unreasonably delayed in pursuing the debt claimed and has allowed penalising interest to accrue, thereby disentitling him from judgment in the full sum claimed;

(b) section 93(7)(d) of the Taxes Consolidation Act 1997, affords the defendant an opportunity to regularise his tax affairs when these proceedings conclude; any orders which the court was satisfied should be made in favour of the plaintiff, should take account of that provision and therefore any order of the court should provide for “liberty to apply” in the event that the defendant was successful in any late appeal that he may bring before the Tax Appeal Commission (hereinafter “TAC”).

4 . On behalf of the plaintiff, it was submitted that as the assessments in this case had been properly raised by the plaintiff and as the defendant had lodged an appeal thereto, which appeal had been refused by the TAC, the amounts claimed in the assessments had become “final and conclusive”, including the statutory interest applicable thereto, such that it was not open to this Court to question the factual basis of the sums claimed in the summary summons and that in these circumstances, the plaintiff had established that the defendant had no defence to his claim herein.

5 . The submissions of the parties will be outlined in greater detail later in the judgment.

The Evidence.

6 . The plaintiff's application for summary judgment was grounded on the affidavit sworn by the plaintiff on 2 ^nd November 2022. The plaintiff stated that notices of assessment were raised by the Inspector of Taxes of the Criminal Assets Bureau in respect of the defendant for the years 2004 to 2015. He exhibited a copy of the assessments in the affidavit. The plaintiff stated that demands were made upon the defendant to discharge the sum of €2,026,454.48 by letters dated 7 ^th June 2018, 28 ^th April 2022, 8 ^th June 2022 and 24 ^th June 2022. He exhibited copies of the said letters. The plaintiff stated that he waived his claim for further interest on the amount sought in the special endorsement of claim until judgment. He stated that he had been advised and believed that the defendant does not have any defence to the plaintiff's claim in the proceedings. He stated that the said sum remained due and owing by the defendant to the plaintiff over and above all just credits and allowances.

7 . The defendant swore a replying affidavit on 22 ^nd January 2023 in which he described himself as a retired agricultural painter. He stated that he was a settled member of the Travelling Community and had always lived a relatively modest life. He stated that he had very limited literacy and writing skills. He stated that his estimated yearly income from agricultural painting was approximately €60,000 gross per annum. He stated that he suffered from significant mental health issues, which had worsened significantly following the death of his infant grandchild.

8 . Later in the affidavit he stated that it was “completely absurd” to suggest that he enjoyed the level of income over the relevant period, which had been estimated by the plaintiff in its assessments. He stated that he was a horse trader, who had always enjoyed a modest income. He stated that he had never achieved such extensive means as were alleged by the plaintiff. He stated that he had instructed a firm of tax advisers in Walkinstown, Dublin, to complete the tax returns on his behalf for the relevant years. He had no doubt that the returns, once completed, would establish that the amount owed by him in tax, was significantly less that the amount claimed by the plaintiff.

9 . The defendant went on to allege that the Criminal Assets Bureau had seized his accounts and had deprived him of access to them for the purpose of contesting the assessments raised by the plaintiff; thereby preventing him from instituting a valid appeal therefrom. He stated that he had tried to secure copies of the necessary documentation from the Bureau, but this had been withheld from him and as a result, he could not lodge an adequate notice of appeal. As a result, he stated that he could not effectively avail of the statutory appeals process that was available to him under the 1997 Act.

10 . The defendant stated that there had been a four-year delay by the plaintiff from the time that he had raised the assessments, to the date of issue of the summary summons. He stated that no explanation had been provided by...