Wiley v Revenue Commissioners

• Jurisdiction: Ireland
• Judgment Date: 28 April 1989
• Date: 28 April 1989
• Docket Number: [1988 No. 261JR]
• Court: High Court

Wiley v. The Revenue Commissioners

Michael Wiley

Applicant

and

The Revenue Commissioners, Respondents

[1988 No. 261JR]

High Court

Revenue - Customs and Excise - Exemption from excise duty on motor vehicle where driver disabled - Whether applicant eligible for exemption - Whether applicant had legitimate expectation - Evidence of exemption from road tax previously accepted as evidence of exemption from excise duty - Change in evidential requirement - Imposition of Duties (No. 236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order, 1979 (S.I. No. 57) - Finance Act, 1968 (No. 33), s. 43.

Section 43, sub-s. 1 of the Finance Act, 1968, provides:—

"Where a person shows to the satisfaction of the licensing authority that, in consequence of injury, disease or defect, he is wholly, or almost wholly, without the use of each of his legs, the duty imposed by section 1 of the Finance (Excise Duties) (Vehicles) Act, 1952, shall not be charged or levied in respect of a vehicle specially constructed or adapted for use by the person as driver and used by him either as driver or passenger."

Article 4, para. 1 of the Imposition of Duties (No. 236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order, 1979, provides that a duty of excise shall be charged, levied and paid on motor vehicles delivered in the State or imported into the State on or after the 1st March, 1979.

Article 12 of the same instrument provides for the repayment of this excise duty where a person is exempt from paying road tax pursuant to s. 43 of the Finance Act 1968.

The applicant suffered from physical disabilities affecting his legs and his back but which did not come within the scope of section 43. However on two previous occasions he had purchased a new motor vehicle and received a refund of the excise duty which he had paid. In 1987, he purchased another motor vehicle and applied for repayment of the excise duty. His application was refused on the grounds that his disability did not come within the scope of s. 43 of the Act of 1968. The applicant sought judicial review of the decision of the respondents.

It was argued on behalf of the applicant that, having in the past being granted exemptions and not having been given notice of any change in practice, he had a legitimate expectation of being granted another exemption.

At the commencement of the scheme the respondents had relied solely on the certificate of exemption from road tax as establishing that an applicant came within sub-s. 1 of section 43. In 1986, when it appeared that certain ineligible people were applying for refunds of excise duty, the respondents changed their criteria and required in addition to the certificate of exemption from road tax, a copy of the medical certificate on which exemption had been granted. As a result of this change the applicant's third application was refused. The respondents stated in their grounds of opposition that in respect of the earlier applications the true nature and extent of the applicant's injuries were not apparent and the refunds issued due to incorrect or misleading information.

Held by Blayney J., in refusing the relief sought, 1, that to come within the principle of legitimate expectation the applicant would need to have not merely an expectation, but a legitimate expectation that he would get a refund of the excise duty paid.

2. That to have a legitimate expectation the applicant would have to consider himself entitled to it; not merely that he had received it previously. Furthermore in the circumstances he ought to have known he was not.

3. That accordingly the applicant's belief in his entitlement fell short of the required standard.

Dicta of Hamilton P. in Duggan v. An Taoiseach (Unreported, High Court, 11th April, 1988) approving C.C.S.U. v. Minister for the Civil Service[1984] 3 W.L.R. 1174, applied.

Cases mentioned in this report:—

C.C.S.U. v. Minister for the Civil Service [1984] 3 W.L.R. 1174; [1984] 3 All E.R. 935, H.L.(E.).

Duggan v. An Taoiseach [1989] I.L.R.M. 710.

Judicial Review.

On the 7th September, 1988, the High Court (Johnson J.) granted the applicant leave to apply by way of judicial review for an order of certiorari quashing the decision of the respondents refusing him a refund of excise duty and seeking a declaration as to entitlement to such refund. The facts have been summarised in the headnote and are set out in the judgment of Blayney J., infra.

The application, pursuant to notice of motion dated the 17th October, 1988, was heard by the High Court (Blayney J.) on the 11th and 12th April, 1989.

Cur. adv. vult.

Blayney J.

Article 12 of the Imposition of Duties (No. 236) (Excise Duties on Motor Vehicles, Televisions and Gramophone Records) Order, 1979, provides as...