Used Car Imports of Ireland Ltd v Minister for Finance

• Jurisdiction: Ireland
• Judge: Ryan P.
• Judgment Date: 07 July 2016
• Neutral Citation: [2016] IECA 202
• Date: 07 July 2016
• Court: Court of Appeal (Ireland)
• Docket Number: [2014 No. 1170]

[2016] IECA 202

THE COURT OF APPEAL

Ryan P.

[2014 No. 1170]

Ryan P.

BETWEEN

USED CAR IMPORTS OF IRELAND LIMITED

PLAINTIFF

AND

THE MINISTER FOR FINANCE, THE REVENUE COMMISSIONERS, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

Security for costs ? Vehicle Registration Tax ? Special circumstances ? Respondents seeking an order requiring the plaintiff to provide security for their costs ? Whether Court of Appeal should list the matter for hearing by a full court of three judges

Facts: The plaintiff, Used Car Imports of Ireland Ltd, challenged the system of Vehicle Registration Tax which came into force in the State at the beginning of 1993. A hearing in the High Court eventually took place between March and June 2012. On 15th March 2013, Murphy J dismissed the plaintiff?s action and ordered the plaintiff to pay the costs of the defendants, the Minister for Finance, the Revenue Commissioners, Ireland and the Attorney General. The plaintiff appealed to the Supreme Court and the case was transferred to the Court of Appeal pursuant to Article 64 of the Constitution. The respondents, as the successful parties in the High Court, submitted that it was clear that the plaintiff would not be in a position to discharge their costs in the event that the Court upheld the decision of the High Court and awarded costs accordingly. The plaintiff accepted that the respondents established a prima facie case, but they argued that there were special circumstances which were sufficient to justify withholding the order sought, namely: (i) the company?s inability to pay was caused by the Revenue Commissioners; (ii) significant issues were not dealt with by the trial judge in his judgment; (iii) delay in making the application for security; (iv) the issues in the case were matters of exceptional public importance such as justify a refusal of an order for security which would otherwise be made. One of the witnesses who gave evidence in the High Court was a former director of the plaintiff company, Mr O?Dowling, who testified that he had provided funding to finance the plaintiff?s action. In his grounding affidavit for the motion, Mr Sherlock, Deputy Revenue Solicitor, said that it was made clear to the High Court that the plaintiff was not able to fund its own litigation costs and that Mr O?Dowling confirmed that he was financing the action. In light of that evidence, the defendants brought a motion dated 15th March 2013 in the High Court pursuant to O. 5, r. 13 of the Rules and/or s. 53 of the Supreme Court of Judicature (Ireland) Act 1877 or pursuant to the inherent jurisdiction of the court. The application was to join Mr O?Dowling as a defendant in the proceedings and an order directing that he be made personally liable for the costs incurred by the defendants in defending the proceedings. That motion came before Gilligan J who refused the relief sought on 27th February 2014. The defendants appealed to the Court of Appeal against that judgment and order. That appeal was the circumstance that brought Ryan P to reconsider the appropriateness of dealing by himself with the application for the security of costs of the appeal.

Held by Ryan P that there was something inconsistent in having a judge alone dealing with one matter of costs and three judges dealing with another that is closely related. Ryan P noted that if his decision was to accede to the application and order security for costs to be provided by the plaintiff, in light of the evidence in the High Court and having regard to the submissions on the motion, the result may be that Mr O?Dowling has to spend his own resources to enable the appeal to go ahead; he would then have to deal with the defendants? appeal against the order refusing to make him liable for the High Court costs of the company. While he did not think that there was any manifest injustice in proceeding to adjudicate on the application for security against the company, Ryan P held that procedural fairness was best secured by arranging for the motion and the appeal from Gilligan J to be heard by the same court of three judges, simultaneously or successively.

Ryan P held that the motion...