Revenue Commissioners v Fitzpatrick

• Jurisdiction: Ireland
• Judge: Clarke C.J.,MacMenamin J.,Dunne J.
• Judgment Date: 05 December 2017
• Neutral Citation: [2017] IESCDET 133
• Court: Supreme Court
• Date: 05 December 2017

[2017] IESCDET 133

THE SUPREME COURT

DETERMINATION

Clarke C.J.

MacMenamin J.

Dunne J.

IN THE MATTER OF BALLYRIDER LIMITED (IN VOLUNTARY LIQUIDATION) AND IN THE MATTER OF THE COMPANIES ACTS 1963 TO 2012

BETWEEN

THE REVENUE COMMISSIONERS

APPLICANT

AND

ANTHONY J. FITZPATRICK

RESPONDENT

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

1 This determination relates to an application by the respondent in the underlying proceeding (‘Mr. Fitzpatrick’) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Finlay Geoghegan, Irvine and Hogan JJ) delivered on 7th April 2017. The order appealed against was also made on the 7th April 2017 and perfected on the 27th April 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

3 The applicant in the underlying proceedings (‘the Revenue’) brought an application under the Companies Acts 1963 – 2012 in which it was sought that Mr. Fitzpatrick be removed as Liquidator of Ballyrider Limited. On the 21st July 2015 the High Court (Murphy J.) acceded to the Revenue's application for reasons set out in the judgment of the Court delivered on that date ( Revenue Commissioners v. Fitzpatrick (2015) IEHC 477).

4 Thereafter the Revenue sought that the costs of the proceedings be awarded against Mr. Fitzpatrick. Murphy J. delivered a separate judgment in that regard on the 27th October, 2015 ( Revenue Commissioners v. Fitzpatrick (2015) IEHC 676). Murphy J. noted that the reason why she had made the order removing Mr. Fitzpatrick as Liquidator was that it had, in her view, been demonstrated that he had not conducted the liquidation in an efficient or cost effective manner. Murphy J. considered that, in defending the application for his removal, Mr. Fitzpatrick was solely protecting his own interests in circumstances where his conduct of the liquidation was in issue. In those circumstances Murphy J. came to the view that it was appropriate that the costs be awarded against Mr. Fitzpatrick personally.

5 Thereafter Mr. Fitzpatrick appealed both against the substantive decision made by Murphy J. and also, separately, against the order for costs to which reference has just been made. For reasons set out in a judgment delivered by Irvine J. on the 26th July 2016 ( Revenue Commissioners v. Fitzpatrick (2016) IECA 228), the Court of Appeal dismissed the appeal against Mr. Fitzpatrick's removal as Liquidator although the appeal was allowed in part insofar as it related to certain consequential orders.

6 However the Court of Appeal delivered a separate judgment in relation to Mr. Fitzpatrick's appeal on the costs order made in the High Court (see Revenue Commissioners v. Fitzpatrick (2017) IECA 115.

3. The Order appealed against

7 The judgment of the Court of Appeal on the costs issue was delivered by Finlay Geoghegan J. on the 7th April 2017. It is as against that judgment that Mr. Fitzpatrick seeks leave to appeal to this Court. It was common case that there was no finding of negligence, misconduct, personal unfitness or lack of integrity as against Mr. Fitzpatrick. Mr. Fitzpatrick argued that the...