Title:Doe & Anor -v- The Revenue Commissioners. High Court Judgment was given by Mr Justice Clarke on January 18th, 2008.
Judgment
The court was not satisfied that any entitlement to confidentiality that the plaintiffs might assert in relation to their tax affairs could be of sufficient weight to countervail, even to a limited extent, the constitutional imperative that justice be administered in public.
Background
The plaintiffs brought a preliminary application to the High Court that a challenge they wished to bring to a penalty being imposed by the Revenue Commissioners, and the planned publication of their details in Iris Oifigiúil, should be heard in private. This was an urgent matter, as the proposed publication would take place before the end of the year.
They were permitted by the court to bring this initial application on an anonymous basis, and Mr Justice Clarke stressed that the court was not told the names of the actual plaintiffs. Evidence was placed before the court in the hearing on December 11th, 2007 on their behalf by their solicitor. They indicated that, if they lost this preliminary application for anonymity, they would not be proceeding with the challenge to the penalty.
Mr Justice Clarke gave his judgment on an ex tempore basis on December 12th, ruling that they were not entitled to maintain the proceedings under an assumed name, and stating that he would give his reasons later. The plaintiffs then indicated they were not going to maintain the substantive proceedings. The judge delivered his written judgment on January 18th.
He stated he was following the practice established by Mr Justice McCracken in Re Ansbacher (Cayman) Limited in hearing the application for anonymity first, and not considering the substantive matter until this was decided. Accordingly, he was only dealing with those aspects of the substantive matter relevant to this application.
On September 25th, 2007 the Revenue Commissioners had written to the plaintiffs' taxation advisers, acknowledging receipt of a cheque for €1,136,685 in settlement of tax liabilities under a scheme called "Disclosure of undeclared liabilities by holders of offshore assets". The letter stated that the terms of the settlement would be published in due course in Iris Oifigiúil. On October 24th, 2007 an agreement was entered into between the plaintiffs and the Revenue Commissioners, settling all liabilities up to and including 2001.
The plaintiffs' taxation advisers contended that the proper interpretation of the Taxes Consolidation Act 1997, as amended, meant that the requirement under the Act that a list of names, addresses and occupations of persons on whom fines or penalties were imposed, or where a settlement was reached including such fine or penalty, did not apply in this case. They claimed that the plaintiffs fell into an exempted category, where the fine or penalty did not exceed 15 per cent of the amount of tax involved. The Revenue disagreed.
Mr Justice Clarke pointed out that the settlement reached between the plaintiffs and the Revenue included a significant sum as a penalty. The plaintiffs' own tax advisers calculated the interest due on their tax liability of €355,658.32 at €425,368.51, on top of a penalty identical to the primary tax liability, leading to the total sum of €1,136,385. This was well in excess of the 15 per cent of the tax due, and had been agreed by the plaintiffs.
"It is clear that there is no statutory provision allowing anonymity which is applicable to the facts of this case," he said. If the plaintiff were to be able to bring these proceedings under anonymity, their entitlement could only stem from the Constitution.
He then went on to consider in detail the jurisprudence concerning proceedings "otherwise than in public".
He said the jurisprudence could be summarised as follows: the obligation that justice, save in special and limited circumstances, be administered in public includes an obligation that all parts of the court process, including the identities of the parties, must be made public; apart from express statutory provision, the only circumstances where publication could be restrained were where this would prejudice the right to a fair trial; the constitutional right to a good name or to privacy was not a sufficient countervailing factor to the constitutional imperative that justice be administered in public.
He then considered the specific grounds for the plaintiffs' claim. These were that they had an entitlement to confidence in relation to revenue matters; and that their entitlement to access to the courts would be lost if they could not bring the proceedings anonymously.
Decision
Mr Justice Clarke said that while there was some legislative provision for confidentiality in tax matters, he was not satisfied there was any constitutional right to have one's tax affairs kept confidential. Taxation policy and practice in general "are the very stuff of the political process".
"Where individual or corporations do not meet their appropriate share [ of tax], in accordance with the Taxes Acts, then the remainder of compliant tax payers are likely to have to bear a disproportionately large burden. Whatever the position of compliant taxpayers, it is difficult to see how any constitutional entitlement could be asserted which would prevent the public generally from being made aware of the manner in which others have failed to meet their tax obligations," he said.
There was no statutory protection of the identity of non-compliant individuals.
He also pointed out that there was a lot of litigation involving compliant taxpayers where taxation matters came into the court proceedings, and these were not heard in private.
Turning to the question as to whether the absence of anonymity amounted to a barrier to access to the courts, he said that similar considerations arose in a variety of cases, and had been examined by the courts. These included those seeking to restrain the publication of an alleged defamation and the plaintiff in Roe -v- Blood Transfusion Service Board, where the courts had ruled against anonymity. "I am not satisfied that this case was any different from the examples I have given," he said.
In conclusion, he said: "I was not satisfied that any entitlement to confidentiality concerning their tax affairs which the plaintiffs might assert could be of sufficient weight to countervail, even to a limited extent, the constitutional imperative that justice be administered in public . . . The fact that the plaintiffs might be discouraged from bringing proceedings if not permitted to bring them anonymously is not, of itself, in my view, a sufficient reason to give rise to a jurisdiction to permit the proceedings to be brought anonymously."
The full judgment is available on www.courts.ie
Solicitors: J W O'Donovan & Co, Dublin (for the plaintiffs); Chief State Solicitor (for the defendant)