Kenny (t/a Denture Express) v Dental Council

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 25 May 2004
• Neutral Citation: [2004] IEHC 105
• Court: High Court
• Docket Number: [1998 No. 1538P],HC 222/04
• Date: 25 May 2004

[2004] IEHC 105

THE HIGH COURT

HC 222/04

1999/163COS

KENNY T/A DENTURE EXPRESS v DENTAL COUNCIL & ORS

IN THE MATTER OF THE

THE COMPANIES ACTS 1963– 1990

AND IN THE MATTER OF

PART 2 OF THE COMPANIES ACT 1990

AND IN THE MATTER OF

THE MINISTER FOR ENTERPRISE, TRADE AND EMPLOYMENT

AND

ANSBACHER (CAYMAN) LIMITED (FORMERLY GUINNESS MAHON

CAYMAN TRUST LIMITED, ANSBACHER LIMITED AND CAYMAN

INTERNATIONAL BANK AND TRUST LIMITED)

AND IN THE MATTER OF AN APPLICATION BY

THE REVENUE COMMISSIONERS

PURSUANT TO SECTION 12 OF THE COMPANIES ACTS 1990

DENTISTS ACT 1928 S1

DENTISTS ACT 1928 S45(1)

RESTRICTIVE PRACTICES ACT 1972 SCH III A

RESTRICTIVE PRACTICES ACT 1972 SCH III G

DENTISTS ACT 1928 S45

DENTISTS (AMDT) ACT 1983

DENTISTS ACT 1985 S6

DENTISTS ACT 1985 S2

DENTISTS ACT 1985 S51

DENTISTS ACT 1985 S53

DENTISTS ACT 1985 S54

DENTISTS ACT 1985 S55

CONSTITUTION ART 40.3

COMPETITION ACT 2002 S4(1)

DENTISTS ACT 1985 PART VII

HOWARD v COMMISSIONERS OF PUBLIC WORKS 1994 1 IR 101

CRAIES ON STATUTE LAW 1971 7ED 65

NESTOR v MURPHY 1979 IR 326

DPP (IVERS) v MURPHY 1999 1 IR 98

PEPPER v HART 1992 3 WLR 1035 1993 AC 593

DENTISTS ACT 1985 S53(2)

RAFFERTY v CROWLEY 1984 ILRM 350

BUILDING SOCIETIES ACT 1976 S80

DENTISTS ACT 1985 S55(1)

SHEEHAN, STATE v GOVERNMENT OF IRELAND 1987 IR 550

CIVIL LIABILITY ACT 1961 S60

CIVIL LIABILITY ACT 1961 S60(7)

JULIUS v BISHOP OF OXFORD 1880 5 AC 214

DUNNE, RE 1968 IR 105

INTOXICATING LIQUOR ACT 1960 S19(2)

DENTISTS ACT 1985 S54(3)

BAKHT v THE MEDICAL COUNCIL 1990 ILRM 840 1990 1 IR 515

MEDICAL PRACTITIONERS ACT 1978 S27(2)(D)

MEDICAL PRACTITIONERS ACT 1978 S27

EAST DONEGAL COOPERATIVE v AG 1970 IR 317

KENNEDY v LAW SOCIETY OF IRELAND (NO 3) 2002 IR 458

DEANE v VOLUNTARY HEALTH INSURANCE BOARD (VHI) 1992 2 IR 319

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v AN BORD PLEANALA 1993 1 IR 39

CASSIDY v MIN INDUSTRY 1978 IR 297

HAY v O'GRADY 1992 1 IR 210

DENTISTS ACT 1985 S9

DENTISTS ACT 1985 S15

DENTISTS ACT 1985 S9(1)

DENTISTS ACT 1985 S9(1)(F)

DENTISTS ACT 1985 S9(2)

DENTISTS ACT 1985 S15(1)

DENTISTS ACT 1985 S15(2)

AG v PAPERLINK 1984 ILRM 373

COMPETITION ACT 1991 S4(1)

TREATY OF ROME ART 81

COMPETITION ACT 2002 S5(1)

TREATY OF ROME ART 82

COMPETITION ACT 1991 S4DONOVAN & ORS v ESB & ANOR 1997 3 IR 573

DENTISTS ACT 1985 S26

DENTISTS ACT 1985 S29

DENTISTS ACT 1985 S34

DENTISTS ACT 1985 S13(2)(B)

DENTISTS ACT 1985 PART V

DENTISTS ACT 1985 S66

PHILLIPS v MEDICAL COUNCIL 1991 2 IR 115

WOUTERS v ALGEMENE RAAD VAN DE NEDERLANDSE ORDE VAN ADVOCATEN 2002 ECR I-5777

TREATY OF ROME ART 85(1)TREATY OF ROME ART 81(1)

PAVLOV & ORS 2000 ECR I-6451

COMPETITION ACT 1991 S3

COMPETITION ACT 2002 S3

COMPETITION ACT 2002 S5

TREATY OF ROME ART 86(1)

TREATY OF ROME ART 12

TREATY OF ROME ART 10

DENTISTS ACT 1985 S2

1 Finnegan P. delivered on the 25th day of May 2004

2 This matter comes before me on foot of a motion taken pursuant to the Companies Act 1990section 12 by the Revenue Commissioners.

3 Section 12 of the Companies Act 1990provides as follows:

4 12.—(1) Having considered a report made under section 11, the court may make such order as it deems fit in relation to matters arising from that report including—

5 a (a) an order of its own motion for the winding up of a body corporate, or

6 b (b) an order for the purpose of remedying any disability suffered by any person whose interests were adversely affected by the conduct of the affairs of the company, provided that, in making any such order, the court shall have regard to the interests of any other person who may be adversely affected by the order.

7 (2) If, in the case of any body corporate liable to be wound up under the Companies Acts, it appears to the Minister from—

8 a (a) any report made under section 11 as a result of an application by the Minister under section 8, or

9 b (b) any report made by inspectors appointed by the Minister under this Act, or

10 c (c) any information or document obtained by the Minister under this Part,

11 that a petition should be presented for the winding up of the body, the Minister may, unless the body is already being wound up by the court, present a petition for it to be so wound up if the court thinks it just and equitable for it to be so wound up.

12 The relief sought by the Revenue Commissioners in their Notice of Motion is as follows—

"An Order pursuant to section 12 of the Companies Act 1990for the purpose of remedying financial and information disabilities of the Revenue Commissioners and of the Collector General by virtue of the manner in which the affairs of the companies named in the title hereof were conducted including inter alia directions for the furnishing to the Revenue Commissioners of access to and copies of all documents related to the Inspector's Report which are not contained in the Report or the Appendices to the Report on such terms and conditions as the Court shall deem fit."

13 The following were represented at the hearing of the motions in addition to the Applicant that is to say the Inspectors Appointed to Enquire into the Affairs of Ansbacher (Cayman) Limited, Ansbacher (Cayman) Limited and the Attorney General.

14 By Order dated 22 ^nd September 1999 the High Court appointed Inspectors pursuant to section 8 of the Companies Act 1990and ordered that the Inspectors investigate and report to the Court on the affairs of Ansbacher (Cayman) Limited and in particular—

15 a a. To examine and define the nature and extent of the company's Irish business from 1971 to date i.e. the business carried out in the State or any other business carried out on behalf of Irish residents whether in the State or elsewhere.

16 b b. To identify as far as possible all of the parties who are either officers (including shadow directors) and agents of the company, clients of the company or who otherwise assisted in the carrying out of the business at the relevant time.

17 c c. To examine whether the Companies Act 1963– 1990were breached by the company, its officers (including shadow directors), agents or third parties at the relevant time and if so to identify the statutory provisions involved in the persons in default in each case

18 d d. To report on any related matters.

19 The Directors duly completed a Report dated the 6 ^th June 2002 and presented the same to the High Court. The Report runs to some 18 volumes the first volume consisting of the Report and the remaining 17 volumes consisting of Appendices which contain documents. Access to those documents by the Revenue Commissioners has already been permitted by order of this Court. The Applicant now seeks access to documents obtained by the Inspectors in the course of their investigation not included in the Appendices to the Inspector's Report.

The Application of the Revenue Commissioners

20 The Application is grounded on an Affidavit of Donnchadh A. Mac Carthaigh a Principal Inspector of Taxes in the Special Projects Team, Investigation Branch of the Office of the Chief Inspector of Taxes. In the Affidavit he refers to a number of passages from the Report of the Inspectors Chapter 29 as follows:-

21 1. The finding of the Inspectors that:

22 1. The "memorandum account" system was operated by Guinness and Mahon and GMCT in a deliberately complex and secretive manner which concealed the names of the clients involved while allowing them to lodge and withdraw funds to and from accounts held nominally for GMCT.

23 2. Loans were obtained from Guinness and Mahon for GMCT clients on the security of their GMCT deposit, while the existence of this deposit was deliberately omitted from the loan agreement documentation and therefore the general regulatory system of Guinness and Mahon where it would have been seen by bank and Revenue auditors.

24 2. The finding of the Inspectors that there was evidence tending to show—

25 1. The discretionary trust structure as operated by GMCT in conjunction with Guinness and Mahon—through its policy of concealing the true object of the trust, the retention of control by the prime mover over the assets of the trust and the access to the funds provided to the prime mover who could withdraw funds in Dublin—amounted to a sham trust structure. There is also evidence to show that the discretionary trust scheme facilitated widespread tax evasion.

26 2. That the affairs of Ansbacher were conducted with intent to defraud a creditor of some of its clients, that is the Revenue authorities.

27 3. That Ansbacher may have committed a number of criminal offences namely:

28 (a) the common law offence of conspiracy (with, inter alia, some of its clients) to defraud, and

29 (b) the offence of knowingly aiding, abetting, assisting, inciting or inducing another person to make or deliver knowingly or wilfully any incorrect return, statements or accounts in connection with their tax contrary to the provisions of the appropriate tax legislation, now consolidated in sections 1056 and 1078(2) of the Taxes Consolidation Act, 1997.

30 3. The conclusion of the Inspectors that there is evidence to show that

31 1. Guinness and Mahon conspired with Ansbacher to defraud a creditor of Ansbacher's clients, namely the Irish Revenue Commissioners, and that there is therefore evidence tending to show that Guinness and Mahon may have committed the offence of conspiracy to defraud contrary to common law.

32 2. Guinness and Mahon may have committed the offence of knowingly aiding, abetting, assisting, inciting or inducing another person to make or deliver knowingly or wilfully any incorrect return, statements or accounts in connection with their tax contrary to the provisions of the appropriate tax legislation, now consolidated in sections 1056 and 1078(2) of the Taxes...