Registrar of Companies v Anderson
|Murray C.J.,Justice Geoghegan
|16 December 2004
| IESC 103
|16 December 2004
 IESC 103
THE SUPREME COURT
COMPANIES ACT 1963 S125
COMPANIES (FEES) ORDER 2001 SI 477/2001
COMPANIES ACT 1963 S125(1)
COMPANY LAW ENFORCEMENT ACT 2001 S29
COMPANIES ACT 1963 S125(2)
COMPANIES ACT 1963 S125(3)
MCLOUGHLIN V TUITE
MELLING V MATHGHAMHNA
COMPANIES ACT 1963 S369
COMPANIES ACT 19631963 SCHEDULE 8
COMPANIES ACT 1963 S395
COMPANIES ACT 1963 S395(3)
CONSTITUTION OF THE UNITED STATES FIFTH AMENDMENT
COMPANIES (AMDT) ACT 1982 S15
COMPANIES ACT 1990 S244
- ;  IESC 103
Double jeopardy - Requirement to make annual return - Penalties - Late filing fee - Whether imposition of late filing fees in form and substance purely administrative - Prosecution for failure to file returns - Whether prosecution precluded on grounds of double jeopardy - Melling v Ó Mathghamhna Companies Act 1963 (No 33), s 125 - Certiorari granted (145/2003 - Supreme Court 16/12/2004)  IESC 103 considered -
Registrar of Companies v Judge Anderson
The second named respondent was summoned for failing to file annual returns within the times specified. Prior to the District Court hearing the respondent company filed the requisite returns and paid the associated late filing fees. At the District Court hearing the judge concluded that to proceed with the hearing would expose the respondent company to the risk of double jeopardy and struck out the summons. The High Court upheld the view of the District Court judge and refused the application.
Held by the Supreme Court (MurrayCJ; Hardiman and Geoghegan JJ) in allowing the appeal that the charges imposed by way of payment in respect of late filing are administrative by their nature as the principle of double jeopardy relates only to criminal proceedings and can have no application between civil and criminal proceedings, the appeal must succeed.
Murray C.J.delivered on the 16th day of December,2004.
This is an appeal by the applicant / appellant, the Registrar of Companies, from a refusal of the High Court to grant his application for an order of certiorari by way of judicial review of a decision of the first named respondent made on 25 th June, 2002 in the District Court when he struck out two summonses which had been issued by the appellant against the second named respondent company for breach of s. 125 of the Companies Act, 1963by failing to file annual returns for the said company within the times specified in the Act for the calendar years 2000 and 2001.
It is not in dispute that the second respondents (hereafter the company) failed to file their annual returns as required by s. 125 of the Companies Act, 1963. As a consequence the company was prosecuted for its failure to make the returns pursuant to that section.
Subsequent to the issuing of the summonses for the said prosecution, and before the matter came for hearing before the District Court, the company filed its annual return in respect of each of the years inquestion.
Because it was late in filing its returns, the company had to pay to the Registrar a significantly higher fee with the return than would have been the case if it had filed the returns by the due date. The fee payable by a company, if it files its annual return on time, is£30.00. However, by virtue of the Companies (Fees) Order, 2001, (S.I. 477/2001) the company was required to pay a fee with the late filing of the annual returns higher than the normal £30.00. The company did not file its annual returns for the years 2000 and 2001 until June 2002 and therefore were subject to the late filing fees imposed by the aforesaid order. Those fees amounted to £1,200.00in respect of the year 2000 and £379.00 in respect of the year2001.
Subsequent to the late filing of the returns and the payment of the associated late filing fees, the prosecution by the appellant of the company for failing to make their returns came before the District Court on June 25 th, 2002.
At that hearing it was drawn to the attention of the first named respondent that the company had already filed the returns in question, albeit late, and paid the associated late filing fees which were far in excess of what would have been payable if the returns had been lodged in good time.
It would appear that the first named respondent raised a question whether, in the circumstances where the company had already undergone a penalty of paying the increased fees, the subsequent prosecution of the company pursuant to s. 125 of the Act of 1963 "amounted to, or exposed the second named respondent to the risk of double jeopardy..." The quotation is taken from the unchallenged affidavit filed on behalf to the appellant in support of the judicial review application. As appears from that affidavit the District Judge then concluded that there was a risk that the prosecution before him involved a " double jeopardy" for the company and therefore should be struck out. Accordingly, there was nodetermination on its merits of the prosecution brought against thecompany.
The issue in the case is whether the learned District Judge exceeded his jurisdiction in refusing to hear the case and in striking out the summonses on the grounds that to proceed with the prosecution would offend against the principle of double jeopardy.
Section 125(1) of the Companies Act, 1963as amended by s. 29 of the Company Law Enforcement Act, 2001provides:-
"Every company shall, once at least in every year, subject to s. 127, make a return to the Registrar of Companies, being its annual return, in the prescribed form."
Section 125(2) states:-
"If a company fails to comply with this section, ... the company and every officer of the company who is in default shall be guilty of an offence..."
Section 125(3) states:-
"Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies."
The company was not represented in the High Court, nor has it chosen to be represented in this appeal, no doubt for its own good reasons. This court has available to it a brief approved note of the judge's ruling in the High Court. The learned High Court judge questioned whether there was a difference between a criminal sanction and an administrative section, both arising out of a breach of statute. Counsel for the Appellant relied on the case of M cLoughlin -v-Tuite, The Revenue Commissioners -v- The AttorneyGeneral in which, to put it in broad terms at this stage, the distinction between an administrative sanction and a penal sanction was recognised.
The learned High Court distinguished the M cLoughlin case from the present case on the basis that double jeopardy was not an issue in the M cLoughlin case as there was no power in the income tax legislation to prosecute as well as impose a penalty. His concern was that this particular offence gives rise to a criminal sanction when there is already asanction in place. He concluded that the second named respondent was correct and refused the relief sought.
On behalf of the appellant it was submitted that the late filing fee is neither in form nor in substance a criminal penalty but is rather in the nature of the civil or administrative sanction imposed for failing to file the annual return of a company in a timely fashion as required by the act. The object of the late filing fee and the accumulative daily fee is designed to promote and encourage the timely filing of annual returns for the current year. Since its purpose is administrative it was submitted that the payment of the late filing fee does not preclude the appellant from proceeding with a prosecution pursuant to s. 125 for the offence of failing to file a return within the prescribed time. The late filing fees have no relationship with the prosecution and so far as they are relevant at all they are relevant only to issues of mitigation in respect of any fine to be imposed for the actual offence. It was further submitted that the principle of double jeopardy could not be invoked in favour of the company in a prosecution before the District Court unless the filing fee is determined to be in the nature of a criminal penalty. The principle of double jeopardy does not apply simply where there is an overlap between the criminal law on the one hand and the civil law on the other.
Counsel for the appellant also submitted that the courts have considered in a number of cases the characteristics which distinguish civil matters and rely, inter alia, of the decisions of this court in Melling -v-O'Mathghamhna and M cLoughlin -v- Tuite . It was submitted that this case law supported the appellants' contention that the imposition and collection of fees imposed only because of the lateness of the filing of the return of the company was not capable of being considered a criminal penalty in which case the principle of double jeopardy had no application.
As regards the question as to whether the imposition of late filing fees were both in form and substance purely administrative, I consider first of all the formal nature of the obligation to pay late filing fees. The companies' registration office has a regulatory responsibility for many tens of thousands of companies. Receiving and dealing with the annual return from each of them must be a formidable administrative task and no doubt there is in place management procedures and structures to deal with them. It is also self-evident that it is in the interest of good and efficient administration that annual...
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