High Court judicial review fails due to inordinate delay

David Fennell, Tax Director

Molloy v Revenue Commissioners 2008 IEHC 247

In Molloy v Revenue Commissioners 2008 IEHC 247 the Irish High Court was asked to strike out judicial review proceedings due to an alleged inordinate delay in stating the case to the High Court. The decision did not address the substantive issue in the case, which concerned Capital Acquisitions Tax (CAT) and the changeover from death duties to CAT.

The Court noted that some might argue that the courts have been 'soft' in applying time limits previously but that the comments of Henchy J in Inspector of Taxes v Kiernan should clearly have put litigants on notice that delays in stating cases could result in cases being struck out for want of prosecution. In this instance the case to be stated was agreed in draft form by October 1997 but it was not submitted by the appellant to the Appeal Commissioners until July 2004 despite 13 reminder letters issuing from Revenue over this 6 year period.

The time limits provided for in Section 941 Taxes Consolidation Act 1997 reflect an expectation that matters therein would be dealt with expeditiously. Dissatisfaction with an Appeal Commissioners decision must be expressed immediately and a request of the Appeal Commissioners to state and sign a case for the opinion of the High Court must be made within 21 days of the determination. Charleton J observed that while in theory the Appeal Commissioners should write their own case stated it is normal practice for the parties to agree the draft case stated which is then sent to the Appeal Commissioners to amend, state and sign. The party requiring the case stated must transmit the case when stated and signed to the High Court within seven days of receipt.

Section 941(5) provides that 'At or before the time when the party requiring the case transmits it to the High Court, that party shall send notice in writing of the fact that the case has been stated on that party's application, together with a copy of the case, to the other party'(emphasis added). In this instance there was an eight day delay between lodgement of the case stated in the High Court and service of the case on Revenue. Having considered the approach adopted in prior cases Charleton J felt that he had no discretion to extend the time limit. This was not a case where no post box was available at the Revenue Commissioners to serve the case stated on the same day as transmission to the High Court. Charleton J was satisfied that "Revenue only take objections to late service where circumstances are sensible and here would not have done so, but for the inordinate and inexcusable delay here on the general facts of the case." In the circumstances the case was dismissed both on the grounds of inordinate delay and for failure to comply with the time limit laid down by statute.