Registrar of Companies v Anderson

JurisdictionIreland
CourtHigh Court
Judgment Date16 December 2004
Date16 December 2004
Docket Number[S.C. No. 145 of 2003]
Registrar of Companies v. Anderson
The Registrar of Companies
Applicant
and
District Judge David Anderson and System Partners Limited
Respondents
[S.C. No. 145 of 2003]

Supreme Court

Company law - Offences - Double jeopardy - Requirement to make annual returns - 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 - Companies Act 1963 (No. 33), s. 125.

Two prosecutions pursuant to s. 125 of the Companies Act 1963, as amended, were initiated in the District Court against the second respondent for its failure to file annual returns. Applying the principle of double jeopardy the first respondent struck out the summonses because the second respondent had already been obliged to pay higher fees upon filing the returns late. The applicant soughtcertiorari of the decision and submitted that a late filing fee was neither in form nor in substance a criminal penalty but rather a civil or administrative sanction, the object of which was to encourage the timely filing of annual returns; the principle of double jeopardy was therefore not applicable. The High Court refused the order and the applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray C.J., Hardiman and Geoghegan JJ.), in allowing the appeal, 1, that the statutory requirement to pay extra fees for the late return of a company's annual report was an administrative sanction having as its purpose the achievement of a legitimate administrative objective as opposed to the punishment of an offence.

Melling v. Ó Mathghamhna ó mathghamhna and the Attorney General [1962] I.R. 1 considered.

2. That the rule of double jeopardy and associated protections against being prosecuted twice for the same offence was a rule which arose in relation to the prosecution of offences.

3. That as, in the instant case, there was no criminal process other than the District Court prosecution, the question of double jeopardy did not arise and therefore the first respondent erred in striking out the summonses and failing to determine the proceedings brought on foot of them.

Per Geoghegan J.: the payment of substantially increased late filing fees was a legitimate matter to be taken into consideration by way of mitigation of penalty where there was a conviction in the District Court for failure to file returns.

Cases mentioned in this report:-

McLoughlin v. Tuite [1989] I.R. 82

Melling v. Ó Mathghamhna ó mathghamhna and the Attorney General [1962] I.R. 1; 97 (1961) I.L.T.R. 60

Proprietary Articles Trade Association v. Attorney General for Canada [1931] A.C. 310; 100 L.J.P.C. 84; 144 L.T. 577; 47 T.L.R. 250 (P.C.).

Appeal from the High Court

The facts of the case have been summarised in the headnote and are more fully set out in the judgments of Murray C.J. and Geoghegan J.,infra.

By notice of appeal filed on the 15th April, 2003, the applicant appealed the order of the High Court (Quirke J.) of the 3rd March, 2003, perfected on the 25th March, 2003, refusing to grant an order ofcertiorari of a decision of the District Court.

The matter was heard before the Supreme Court (Murray C.J., Hardiman and Geoghegan JJ.) on the 13th July, 2004.

Cur. adv. vult.

Murray C.J.

16th December, 2004

1 This is an appeal by the applicant, the Registrar of Companies, from a refusal of the High Court to grant his application for an order ofcertiorari by way of judicial review of a decision of the first respondent made on the 25th June, 2002, in the District Court when he struck out two summonses which had been issued by the applicant against the second respondent company for breach of s. 125 of the Companies Act 1963 by failing to file annual returns for the said company within the times specified in the Act for the calendar years 2000 and 2001.

2 It is not in dispute that the second respondent failed to file its annual returns as required by s. 125 of the Companies Act 1963. As a consequence it was prosecuted for its failure to make the returns pursuant to that section.

3 Subsequent to the issuing of the summonses for the said prosecution, and before the matter came on for hearing before the District Court, the second respondent filed its annual return in respect of each of the years in question.

4 Because it was late in filing its returns, the company had to pay with the return to the applicant a significantly higher fee 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 the company was required to pay a fee with the late filing of the annual returns higher than the normal €30.00. The second respondent 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 in respect of the year 2000 and €379 in respect of the year 2001.

5 Subsequent to the late filing of the returns and the payment of the associated late filing fees, the prosecution by the applicant of the company for failing to make its returns came before the District Court on the 25th June, 2002.

6 At that hearing it was drawn to the attention of the first respondent that the company had already filed the returns in question, albeit late, and had 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.

7 It would appear that the first respondent raised a question whether, in the circumstances where the second respondent 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 respondent to the risk of double jeopardy". The quotation is taken from the unchallenged affidavit filed on...

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