Sfar v Revenue Commissioners

JurisdictionIreland
JudgeMr. Justice William M. McKechnie
Judgment Date16 March 2016
Neutral Citation[2016] IESC 15
CourtSupreme Court
Docket Number[317/2011]
Date16 March 2016

[2016] IESC 15

THE SUPREME COURT

McKechnie J.

[317/2011]

McKechnie J.

Clarke J.

Dunne J.

BETWEEN
DONNA SFAR
APPLICANT/APPELLANT
AND
THE REVENUE COMMISSIONERS, IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS/RESPONDENTS

Delay ? Lack of candour ? Judicial review ? Appellant seeking Declarations ? Whether respondents could establish such delay as would disentitle the appellant to the reliefs claimed

Facts: The first respondent, the Revenue Commissioners, are the employers of the appellant, Ms Sfar. She was successful in obtaining a place on a distance education Bar Vocational Course (BVC) in London with a private college. She first sought funding for this course in July, 2007, on the basis of Circular E.5907 which her employer had issued on the 14th September, 2004, headed ?Refund of Academic Fees Scheme?. The Revenue Commissioners took the view that she had not met the terms of the Circular, and accordingly declined to approve the funding request. Disagreeing with their interpretation and application of the Circular, the appellant instituted judicial review proceedings. On the 22nd March, 2010, the appellant obtained leave from the High Court to issue those proceedings, seeking a number of Declarations, namely that: (i) the appellant?s BVC was a ?follow?on course? within the meaning of the Circular as it was designed to convert the applicant?s LLB into a professional qualification; (ii) the BVC was an Appendix A course within the meaning of the Circular; (iii) the BVC was not a post?graduate course; and (iv) the appellant had a legitimate expectation that a BVC qualified under the Circular. She also sought an Order of?mandamus?directing the respondents to reconsider her application in light of the Declarations prayed for. On the 8th June, 2011, MacMenamin J dismissed all reliefs claimed by the appellant based on three major findings: (i) the existence of delay and associated material non?disclosure, together with a lack of candour in the information which she placed before the court when making the leave application; (ii) the respondents had at all times acted reasonably and had reasonably applied the Circular; and (iii) where the applicant had failed to comply with the terms of the Circular and where no clear identification of her legal complaint had been established, she had failed to meet any of the three criteria outlined in?Glencar Exploration plc v Mayo County Council?[2002] 1 IR, and thus she could not invoke the doctrine of legitimate expectation in the circumstances of her case. The appellant appealed to the Supreme Court, questioning the judgment of the High Court. She first submitted that before she could hope to secure leave to institute judicial review proceedings, she was obliged to exhaust alternative remedies, which reached their end point only on the receipt by her of a letter of rejection from Mr Howley dated the 28th January, 2010; the judge had failed to appreciate this and his finding that January, 2009, was the cut?off date was erroneous. Second, she submitted that the Revenue Commissioners did not and could not establish such delay as would disentitle an applicant to the relief claimed. Third, she submitted that the finding of lack of candour could not be justified as full disclosure is not always practical or efficient at the leave stage and there was no evidence that she had not acted in good faith.

Held by McKechnie J that Mr Howley?s letter was a reiteration of a previous decision, specifically, that of Mr Buckley?s letter of the 27th January, 2009; accordingly, as Mr Howley?s letter post?dated the ?final decision? by almost twelve months, such communication was not the relevant one for O. 84, r. 21 RSC. McKechnie J held that the leave application was out of time. He also held that the expeditious requirement underpinning all applications for judicial review was not fulfilled in this instance and, accordingly, in the absence of any application, based on good reason, to extend the time within which an application should be made, the High Court judge was fully justified in dismissing the application. McKechnie J held that the case should be regarded as one of significant non?disclosure intentionally done, but not embarked upon with any intention to mislead. Accordingly, he did not believe that the finding of lack of candour was justified and, thereafter, he would allow the appeal on that point.

McKechnie J held that the appeal would be dismissed on the delay point, but allowed on the lack of candour point.

Appeal dismissed in part.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 16th day of March, 2016
1

Ms. Donna Sfar is a career civil servant and has been since leaving college in 1978 when she joined the Customs & Excise Section of the Revenue Commissioners. She has worked, at least for the past several years, as an Executive Officer in the VIMA (?VIES, Intrastat, Mutual Assistance?) Section based in Dundalk, Co. Louth. She holds a BA Degree and in 2006 obtained an LL.B. from a college based in London. She remains in the employment of that respondent.

2

The Revenue Commissioners are who they are and evidently are the employers of the appellant.

3

On the back of the law degree, Ms. Sfar decided to pursue a further qualification and was successful in obtaining a place on a distance education Bar Vocational Course (B.V.C.) in London with a private college named BPP. She first sought funding for this course in July, 2007, on the basis of a Circular which her employer had issued on the 14th September, 2004, and which is headed ?Refund of Academic Fees Scheme? (Circular E.5907). The Revenue Commissioners, early on in what turned out to be a lengthy and voluminous exchange of inter partes correspondence, took the view, which they have ever since maintained, that she had not met the terms of the Circular, and accordingly declined to approve the funding request. Disagreeing with their interpretation and application of the Circular, the applicant ultimately instituted judicial review proceedings, from which the instant appeal arises.

4

On the 22nd March, 2010, Ms. Sfar obtained leave from the High Court (Peart J.) to issue these proceedings, in which she was given permission to seek the reliefs specified in para. (d) of the Statement grounding the Application, with the grounds therefor being those as set out in para. (e) of that statement. The reliefs sought included a number of Declarations, namely:-

?(i) that the applicant's Bar Vocational Course was a ?follow-on course? within the meaning of Circular E.5907 as it was designed to convert the applicant's LL.B. into a professional qualification,

(ii) that the Bar Vocational Course was an Appendix A ( sic) course within the meaning of the Circular,

(iii) that the Bar Vocational Course was not a post-graduate course, and

(iv) that the applicant had a legitimate expectation that a Bar Vocational Course qualified under the Circular.?

To support these Declarations, if any or all were granted, she also sought an Order of mandamus directing the respondents to reconsider her application in light of the Declarations prayed for. She moved the court on foot of a short affidavit sworn on the 8th February, 2010, and has represented herself at all stages throughout the entire process.

5

By the time the pleadings had been completed, the Revenue Commissioners had filed a replying affidavit and then a second affidavit in response to a further affidavit sworn by the applicant. This further affidavit of Ms. Sfar, filed in October, 2010, was striking for its content and length, running to over 70 pages and containing about 200 paragraphs. This is noteworthy in view of the non-disclosure finding made by the learned trial judge.

6

The application for judicial review was heard by MacMenamin J., who delivered a written judgment dated the 8th June, 2011, in which he dismissed all reliefs as claimed by the applicant. The conclusion which he reached was based on three major findings:-

(i) The existence of delay and associated material non-disclosure, together with a lack of candour in the information which she placed before the court when making the leave application;

(ii) That the respondents had at all times acted reasonably and had reasonably applied the Circular; and

(iii) That where the applicant had failed to comply with the terms of the Circular and where no clear identification of her legal complaint had been established, she had failed to meet any of the three criteria outlined by Fennelly J. in Glencar Exploration plc v. Mayo County Council [2002] 1 I.R., and thus she could not invoke the doctrine of legitimate expectation in the circumstances of her case.

7

In the Notice of Appeal dated the 28th July, 2011, the appellant questions the judgment of the High Court in a manner which can be summarised as follows:-

(i) Before she could hope to secure leave to institute judicial review proceedings, she was obliged to exhaust what she described as ?alternative remedies?, which reached their end point only on the receipt by her of a letter of rejection from Mr. Joe Howley dated the 28th January, 2010. The learned judge had failed to appreciate this and his finding that January, 2009, was the cut off date was clearly erroneous both in fact and in law.

(ii) In any event, once leave is obtained without the court expressly reserving the issue of delay for further consideration at the substantive stage, that matter is at an end unless it is raised by the respondents, on whom the onus rests of establishing such delay as would disentitle an applicant to the relief claimed. This, in her view, the Revenue Commissioners did not and could not do.

(iii)The finding of lack of candour cannot be justified. Full disclosure is not always practical or efficient at the leave stage and an applicant should not be penalised for keeping matters simple in the...

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