Murphy v The Revenue Commissioners

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Haughton
Judgment Date27 February 2020
Neutral Citation[2020] IECA 36
Docket NumberRecord Number: 2017/551
Date27 February 2020

[2020] IECA 36

THE COURT OF APPEAL

CIVIL

Faherty J.

Haughton J.

Power J.

Record Number: 2017/551

BETWEEN/
BRIAN MURPHY
APPLICANT/APPELLANT
- AND –
THE REVENUE COMMISSIONERS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS/CROSS-APPELLANTS

Discovery – Relevance – Judicial review – Appellant seeking discovery – Whether categories of discovery sought were relevant to the core issues that fell to be determined

Facts: The appellant, Mr Murphy, appealed to the Court of Appeal from an order made by the High Court on 3 November 2017 granting limited discovery under two categories on foot of the appellant’s application for discovery in judicial review proceedings in which the appellant sought orders restraining the respondents, the Revenue Commissioners and the Director of Public Prosecutions, from further prosecuting the appellant for a number of Revenue offences on foot of summonses issued on 18 February 2014 and 12 October 2015. The appellant sought discovery of five categories as originally sought. The respondents cross appealed and opposed all the discovery sought. The categories of discovery sought were as follows: Category 1 - all documents evidencing, referring to or touching upon the agreement of the parties of 31 August 2015 and in particular concerning the initiation or continuation of prosecutions and the inclusion/exclusion of the prosecution clause in the agreement (and previous drafts thereof); Category 2 - all documents evidencing referring or touching upon conversations between the applicant and Pierse Fitzgibbon concerning the prosecution of the applicant by way of summons served on the 27 October 2015; Category 3 - all documents evidencing the date and the decision to prosecute in 2015 was recommended or decided and evidencing of whether the agreement (or drafts thereof) or the removal of the prosecution clause was considered by the investigating or professional officer and recommending or deciding to initiate a prosecution of the applicant; Category 4 - all documents referred to in the affidavit of Mr Lester of 21 June 2016 but not exhibited; Category 5 - all documents touching upon or concerning any review of the file by the respondents or by Pierse Fitzgibbon on their behalf.

Held the Court that the appellants’ affidavit deposed to information as to a factual matrix that was sufficient to warrant discovery of documents relevant both to the terms of agreement actually reached and to the issue of legitimate expectation. In the Court’s view, it was probable that the respondents or their agents would hold documents relating to the inclusion or otherwise of terms relating to existing or possible future prosecutions for tax offences/ enforcement proceedings in any agreement to be reached with the appellant, and “the position adopted by the respondents”, and that any such documents may enable the appellant to advance his case on legitimate expectation. In order to dispose fairly of these proceedings, the Court came to the view that discovery should be ordered in respect of Category 1, but with modified wording: all documents including emails, letters and records of telephone calls created before or on 31 August 2015 in the possession or control of the respondents or Pierse Fitzgibbon solicitors evidencing referring or touching upon the agreement of 31 August 2015 and in particular (but without prejudice to the generality of this category) concerning the continuation of existing prosecutions or the initiation of future prosecutions and the inclusion/exclusion of a clause that the agreement was without prejudice to existing or future prosecutions of the applicant. Emphasising the importance of 31 August 2015 as the critical cut-off date, the Court did not find any sound basis for ordering discovery of later documents. The Court therefore refused discovery in respect of Category 2. The Court could not see how Category 3 could have any relevance to the core issues that fell to be determined in these proceedings, or how it could be said to be necessary. The Court noted that Category 4 no longer arose for consideration as those documents had been furnished to the appellant’s solicitors. Regarding Category 5, the Court was satisfied that such a review could not be relevant to the core issues, and that this request was in the nature of a fishing exercise.

The Court held that the only category discovery of which it would be prepared to order was Category 1 reworded.

Appeal allowed in part.

JUDGMENT of Mr. Justice Haughton delivered on the 27th day of February, 2020
Introduction
1

This an appeal from an order made by Ní Raifeartaigh J. on 3 November 2017 granting limited discovery under two categories on foot of the appellant's application for discovery in judicial review proceedings in which the appellant seeks orders restraining the respondents from further prosecuting the appellant for a number of Revenue offences on foot of summonses issued on 18 February 2014 and 12 October 2015. The appellant seeks discovery of five categories as originally sought. The respondents have cross appealed and oppose all the discovery sought.

2

As the Statement Required to Ground Application for Judicial Review and the Statement of Opposition are the pleadings that must frame any order for discovery, it is necessary to refer at the outset to the core pleas.

3

In the Statement of Grounds at (e) the main grounds pleaded by the appellant are as follows: -

“(1) The Applicant and First Respondent entered into terms of settlement including a payment schedule on the basis that enforcement action would not be initiated, existing prosecutions would not continue and no new prosecutions would be initiated, and the Respondents have contravened same.

(2) It would be unjust and inequitable to permit the prosecutions proceed given the agreement between the Applicant and the First Respondent.

(3) The Respondents have a duty to adhere to the agreements of the First Respondent compromising revenue liabilities, which the Respondents have failed to do.

(4) The First Respondent represented and [sic] and/or adopted a position, such as amounted to promises or representations, express or implied, not to take enforcement action, that prosecution in being would not continue and that prosecutions would not be initiated, addressed to the Applicant, which formed part of a transaction or series of transactions definitively entered into, or a relationship between the Applicant and First Respondent, such as created an expectation, as was intended by the First Respondent, reasonably entertained by the Applicant, that the Respondents, and each of them, would abide by the representations and promises and of such an extent that it is unjust to permit the Respondents to resile from the same. The Applicant has a legitimate expectation that enforcement action would not be initiated, existing prosecutions would not continue and no new prosecutions would be initiated, which expectation has been contravened.

(5) The Code of Practice for Revenue Audit and the Revenue Customer Charter establish clear, fair and equitable set of guidelines to be followed by the First Respondent. The Applicant has a legitimate expectation that the Fist Respondent will adhere to the said Code and Charter when dealing with the Applicant. Without prejudice to the generality of the foregoing, under the Code Revenue has an duty to:-

(i) provide the necessary information and all reasonable assistance to enable the applicant to clearly understand his obligations and entitlements

(ii) administer the law fairly, reasonably and consistently

(iii) fairly administer tax law recognising certain basis rights

(iv) collects taxes and duties efficiently which have been contravened.

(6) The First Respondent has failed to act transparently and clearly in its dealings with the Applicant.

(7) The First Respondent has, with regard to the applicant, exercised its discretionary powers inconsistently, unfairly and capriciously, such that it would be unjust and inequitable to permit the prosecutions proceed.”

4

In the Statement of Opposition, the respondents in paragraph 1 assert that the claims made are not justiciable, and in paragraph 2 it is pleaded that in the alternative, the Statement of Grounds discloses no sufficient grounds upon which the court could grant judicial review. The pleas most relevant to the discovery sought are as follows:

“2. The criminal proceedings commenced against the Applicant in October 2015 do not relate to the tax liabilities the subject of the Instalment arrangement offered by the First Respondents (“Revenue”) on 31 August 2015 and subsequently purportedly accepted by the Applicant (though, according to him on a mistaken basis as to its effect). Rather, these criminal proceedings relate to the Applicant's income tax for the years 2008-2012. The separate criminal proceedings that had already been commenced against the Applicant in February 2014, relate to wholly separate VAT liabilities. The Applicant unsuccessfully sought to prohibit this 2014 prosecution in a separate judicial review. There is no relationship between the Proceedings in respect of which Pierse Fitzgibbon were instructed by Revenue or the instalment arrangement upon which the Applicant seeks to rely in support of this application for judicial review and the impugned prosecutions in respect of the summonses dated 18 February 2014 and/or 12 October 2015.

It is denied that the Applicant and Revenue entered into settlement terms including a payment schedule on the basis that enforcement action would not be initiated, existing prosecutions would not continue and no new prosecutions would be initiated. No such agreement was ever made by Revenue and no representation to that effect was made to the Applicant by Revenue or on its behalf and no such agreement or representation is disclosed or identified in the Applicant's Statement of Grounds or in the...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT