Limerick Vocational Educational Committee v Carr

JurisdictionIreland
JudgeMr. Justice O'Higgins
Judgment Date25 July 2001
Neutral Citation[2001] IEHC 112
CourtHigh Court
Docket NumberNo 6955p/1998,[1998 No. 6955P]
Date25 July 2001

[2001] IEHC 112

THE HIGH COURT

No 6955p/1998
LIMERICK VOCATIONAL EDUCATIONAL COMMITTEE (VEC) v. CARR & REVENUE COMMISSIONERS

BETWEEN

THE CITY OF LIMERICK VOCATIONAL EDUCATIONAL COMMITTEE
PLAINTIFF

AND

LUCY CARR

AND

THE REVENUE COMMISSIONERS
DEFENDANTS

Citations:

RSC O.28 r.11

CONCORDE ENGINEERING V BUS ATHA CLIATH 1996 1 ILRM 533

HUGHES V O'ROURKE 1986 ILRM 538

BELLVILLE HOLDINGS V REVENUE COMMISSIONERS 1994 1 ILRM 29

AINSWORTH V WILDING 1896 1 CH 673

SWIRE, RE 30 CHD 239

HOWARD V COMMISSIONERS OF PUBLIC WORKS (CPW) 1994 2 ILRM 301

MCG V W (D) 2000 1 ILRM 121

AG V OPEN DOOR COUNSELLING LTD (ODC) (NO 2) 1994 2 IR 353

MCMULLEN V CLANCY UNREP MCGUINNESS 3.11.1999 1999/17/5338

PRESTON BANKING COMPANY V WILLIAM ALSOP 1895 1 CH 141

BRIGHT V SELLAR 1904 1 KB 6

BENTLEY V O'SULLIVAN1925 WN 95

ARNOTT V HOLLOWAY 1960 VR 22

DUBLIN CORPORATION V BUILDING & ALLIED TRADE UNION 1996 1 IR 468

CASSIDY V O'ROURKE UNREP CARROLL 18.5.1983 1983/7/2057

LITTONDALE LTD V WICKLOW CO COUNCIL 1996 2 ILRM 519

REPUBLIC OF INDIA V INDIA STEAMSHIP COMPANY LTD 1993 AC 410

SHOWLAG V MANSOUR (PC) 1995 1 AC 431

SPENCER THE DOCTRINE OF RES JUDICATA 2ED 1969

MCDERMOTT RES JUDICATA & DOUBLE JEOPARDY 163

TAXES CONSOLIDATED ACT 1997 S997

INCOME TAX (EMPLOYMENT) REGS 1960 SI 28/1960 REG 43

INCOME TAX (EMPLOYMENT) REGS 1960 SI 28/1960 REG 31(3)

Synopsis

REVENUE

Income tax

Employment law - Practice and procedure - Res judicata - Amendment of court order - Finality of litigation - Payment of salary - Revenue - Whether payments made by plaintiff should be recovered - Whether payments made in order - Whether original High Court order should be amended - Rules of the Superior Courts, 1986 Order 28, rule 11 - Income Tax (Employment) Regulations, 1960 SI 28/1960 regulations 31 and 43 - Taxes Consolidation Act, 1997 section 997 (1998/6955P - O'Higgins J - 25/7/01)

Limerick VEC v Carr - [2001] 3 IR 480

The first defendant had been awarded damages reflecting the amount of salary due to her as principal. The plaintiff sought the repayment of certain monies it had previously paid to the first defendant. The plaintiff claimed that part of the monies paid by it should not have been paid and sought to have the original court order on foot of which payments had been made amended to reflect same. The plaintiff claimed that the first defendant's accountant had given evidence which in effect had meant that first defendant would submit the award for assessment to the Revenue Commissioners to determine the income tax liability. Mr. Justice O'Higgins held that the original court order accurately reflected the judgment of the High Court Judge.

1

JUDGMENT of Mr. Justice O'Higgins dated the 25 day of July 2001.

2

A dispute arose between the plaintiff and the first named defendant which resulted in proceedings being taken by the first named defendant. On the 17th October, 1991 the Supreme Court granted a declaration to the first named defendant in the following terms that she was:-

"In the position of a principal of a school within its jurisdiction and that she is entitled to be paid the full amount of salary de die in diem appropriate to that position from the date on which she was originally suspended (the 22nd June, 1976) giving credit for any payments of salary or in lieu of salary made to her since that date".

3

It was common case that the plaintiff had made two payments to the first named defendant prior to the hearing before Barron J. The first payment was a sum in respect of the period of the 26th June 1976 to the 31st July, 1980. It was a sum of £22,504.51 nett, superannuation and PAYE and PRSI having been deducted from gross pay of £31,711.94. On the 14th February, 1995 a further payment of £82,030.40 nett was paid to the first named defendant. That represented the balance of the gross salary due less superannuation, PAYE and PRSI from the 1st August, 1980 to the 31st October 1991, less a sum retained for payment to Social Welfare. Following the payment in 1995 the matter was referred back to the High Court on foot of the Supreme Court Order and came before Mr. Justice Barron on the 11th July, 1996. The gross payments due for each of the 15 years were agreed and there was no dispute about the PAYE and PRSI deductions. The relevant part of the order of Barron J. reads as follows:-

"The Court doth find that the plaintiff is entitled to the sum set forth on the Second Schedule hereto being the full amount of salary payable to her for each of the financial years from the date in which the Plaintiff was originally suspended to the date in which the First Named Defendant resumed payment of the Plaintiffs salary amounting in aggregate to the sum of £252,009.33 (gross) against which credit is to be given for payments of salary made by the First Named Defendant in the sums of £22,501.51 (nett) and £82,030.40 (nett) leaving a balance of £147,447.00.

It is ordered and adjudged that the First Named Defendant do pay to the Plaintiff a sum of £147,477.42 and the costs of the proceedings in this Court arising from the reference backed by the Supreme Court to include the costs reserved by the said Order dated the 12th October, 1992 when taxed and ascertained".

4

From this sum of £147,474.42 it was agreed between the parties that a sum of £12,541.09 should be deducted in respect of superannuation contributions in order to preserve the pension rights of the first named defendant in this action.

5

The plaintiff's claim is for the return of the sum of £112,816.14. It claims the said sum from either the first named defendant or the second named defendant. In respect of the first named defendant the plaintiff maintains that it paid the money to the Revenue Commissioners on her behalf and that it paid the same amount of money to her again on foot of the order of Barron J. which the plaintiff contends contemplated that she would pay her tax and PRSI on the amount of the decree. Alternatively, it claims the said sum as against the second named defendants as monies paid to them, which, following the order of Barron J. should rightly be the liability of the first named defendant.

6

When the matter was remitted to the High Court the first named defendant in these proceedings, Ms. Carr claimed interest on the two late payments which caused an extra tax liability for her of £9,000.00. She also claimed damages for the loss of her ability to shelter her income from tax liability by way of investments which attracted tax relief in at least some of the years in question. These claims were not successful. Mr. Quigley, the Chartered Accountant, called on behalf of Ms. Carr in those proceedings gave evidence before Barron J. concerning such interest and a claim for £9,000 over payment of tax. The following appears from the transcript of those proceedings. In answer to Q. 119 Mr. Quigley stated:-

"We are assuming in our calculations that when she goes to the Revenue, having received an award she will be given concessionary treatment; that treatment will allow her to gain the benefit of her basic tax free allowances as a single person, PAYE allowance".

7

At question 122 Barron J:-

"Suppose the award of the Court, with 15 separate sums for 15 separate financial years would she not then get the benefit of all the tax free allowances for each of those years?"

8

Mr. Quigley:-

"Yes, she will get the benefit of the basic allowances, the personal allowance. the PAYE allowance but we have assumed that you will get those benefits anyway, because that is the essence of concessionary treatment, that the Revenue will allow."

9

Q. 123 Barron J:-

"She has been paying that income tax. It is all lumped together and paid in one year, is that right?"

10

Mr. Quigley:-

"If she gets the concessionary treatment she gets the rates and bands and the basic allowances that she would have got in each of the 15 years. That is the concessionary treatment that we have presented. The alternative to that would be to receive the lump sum now to have it taxed in this year and get just this years allowance and we would prepare a calculation on the basis that she would get the concession".

11

The plaintiff argues that the above exchange demonstrates that the decree was on the basis that Ms. Carr would go to the Revenue Commissioners to be assessed for tax on the amount of the decree. Furthermore it relies on the evidence of Mr. O'Donnell, Solicitor in the case. He told the Court that after the decision of Barron J., when Mr. Nugent, the then Counsel for the VEC pointed out to the learned Trial Judge that tax had already been paid by the VEC, he was told by the Judge that the matter could be taken up with the Revenue authorities. The plaintiff further argues that the award of the salary being "gross" clearly envisaged that Ms. Carr would pay tax on it. It is the plaintiff's case that the judgment of Barron J. did not reflect his intention that Ms. Carr would go for assessment to the Revenue Commissioners.

12

The plaintiff, anticipating that the defendant would contend that this Court should not interfere with the order of Barron J which was not appealed and would rely on the doctrine of res judicata,maintains that the first named defendant is estopped from relying on that doctrine by virtue of the representations made in the course of the case which have been referred to above.

AMENDING OR VARYING AN ORDER
13

The circumstances in which the Court will amend an order are as follows:

14

Order 28 Rule 11 of the Rules of the Superior Courts, 1986 provides:-

" Clerical mistakes in judgments or orders, or errors arising therein from an accidental slip or omission may at any time be corrected by the Court on Motion without an appeal."

15

In my view that order has no bearing on the present case. The order accurately reflects a decision of the learned High Court Judge,...

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3 cases
  • Murphy v Gilligan
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    • Supreme Court
    • 1 February 2017
    ...that it was open to the Court to set aside a final order of the Court. In that regard reference was made to Limerick VEC v. Carr [2001] 3 I.R. 480 and to Re Greendale Developments Limited (No. 3) [2000] 2 I.R. 514 amongst other decisions. 85 Geraldine Gilligan also raised an issue in rela......
  • Danske Bank v Meagher
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  • D (M) & M (J) v Minister for Health
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    • 15 February 2002
    ...HOLDINGS V REVENUE COMMISSIONERS 1994 1 ILRM 29 RSC O.20 r11 AINSWORTH V WILDING 1896 1 CH 673 SWIRE, RE 30 CHD 293 LIMERICK VEC V CARR 2001 3 IR 480 HUGHES V O'ROURKE 1986 ILRM 583 O'SULLIVAN V DWYER 1973 IR 81 CONCORDE ENGINEERING V BUS ATHA CLIATH 1995 3 IR 212, 1996 1 ILRM 533 R V BOW......

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