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1. The proceedings were commenced by plenary summons dated 14th April, 1997 in which the Plaintiffs claim in excess of £1.6 million for income tax and interest thereon. Whilst the sum claimed is a specific sum alleged due and payable and accordingly capable of being claimed on foot of a summary summons, the Plaintiff elected to issue a plenary summons, the thinking being that a mareva injunction might not be available in summary proceedings.

2. By Order of 15th April, 1997 the Defendant, together with his wife who is a represented Notice Party in the proceedings before me, was restrained from disposing of the proceeds of sale of three properties in Co. Cork until 21st April. That Order has been continued from time to time thereafter and remains in effect until the determination of the case before me. I will return to a more detailed history of the case when dealing with the Defendant’s submission in relation to allegedly unconstitutional delay.

3. The Defendant makes the simple point that this type of proceeding can only be brought on a summary summons. He says that the Plaintiff has no locus standi to bring the claim on foot of a plenary summons.

4. This submission is grounded, primarily, on the wording of Section 966 of the Taxes Consolidation Act, 1997 which where relevant provides as follows:-

5. Dr. Forde, S.C, on behalf of the Defendant submits that the word “may” in subsection (1) means “shall”. He submits that the 1997 Act is a consolidating Act and that the shoulder note to Section 966(1) indicates, inter alia , a reference to Section 488 of the 1967 Income Tax Act which in turn ( via its own shoulder note) alludes to Section 54 of the Finance Act, 1958. This section and the section referred to in the Income Tax Act, 1967 contain identical wording so far as relevant, to Section 966(1) of the Taxes Consolidation Act, 1997.

6. Whilst these two antecedent subsections both admittedly contain the word “may”, Dr. Forde submits that because prior to the 1958 Act tax inspectors had power to sue only for recovering certain fines, penalties or forfeitures that therefore the intention of the legislature in enacting Section 54(1) of the Finance Act, 1958 was to enable them so to recover on foot of a summary summons and not otherwise. Both antecedent subsections apply the Rules of the High Court applicable to proceedings commenced by summary summons “ subject to this section” .

7. Secondly it is submitted that this interpretation is re-enforced by comparison with Section 998 and Section 1002(8) of the same Act of 1997. Section 998 where relevant provides:-

8. Section 1002(8) where relevant provides:-

9. These latter two subsections do indeed, it is submitted, make it clear that the Attorney General in the first case and the relevant person in the second has explicit authority to bring an action in a Court of competent jurisdiction for the recovery of the relevant money. The language is plain and explicit. When one turns, therefore, to construe Section 966, it is submitted, that in the absence of plain and explicit reference to the bringing of proceedings by way of plenary summons, the section should be construed as authorising only the institution of proceedings by way of summary summons.

10. In response, Mr. Nesbitt, S.C., for the Plaintiff submitted that the word “may” should mean what it says, namely, that there is permissive jurisdiction to commence the relevant proceedings by summary summons but that this word should not be construed as “shall” or “may only” as contended for by Dr. Forde. There is no ambiguity about the wording of the section and therefore the rule that the tax code should be construed strictly and in favour of the tax payer does not apply. He further submits that subsection (5) seems to contemplate the possibility that proceedings would be instituted for a sum assessed prior to a point in time when such assessment would have become final and conclusive. If this is correct then such proceedings could only be commenced by way of plenary summons. Furthermore, Order 69, Rule 3 of the Rules of the Superior Courts (dealing with the recovery of taxes and duties) makes it clear that proceedings for the recovery, inter alia, of any tax may, if the circumstances so require, be brought by plenary summons. This shows that the Superior Courts Rules Committee considered that the antecedent sections to Section 966 of the 1997 Act did not preclude the bringing of such an action by plenary summons in appropriate circumstances.

11. Dr. Forde’s submission depends, it seems to me, upon the proposition that it was the intention of the legislature when enacting Section 54(1) of the Finance Act, 1958 to specify that this kind of proceeding may be brought by summary summons and summary summons alone. I do not see any warrant for such an interpretation. The word “may” is used in the relevant subsection and the provision (subsection (11)) referring to the High Court rules applicable to proceedings commenced by summary summons specifies that this provision is “ subject to this section ...”. It may well be that Dr. Forde is perfectly correct in stating that prior to 1958 the law maker had not conferred jurisdiction upon an officer of the Revenue Commissioners to bring proceedings in his own name in the High Court. Be that as it may, I cannot agree with him that the phraseology used in Section 64(1) of the 1958 Act indicates an intention that such proceedings shall be commenced by summary summons alone. If that had been the intention I cannot see why the legislature would not have used the word “shall” rather than “may”.

12. In these circumstances it is not necessary for me to consider the further submission made by Dr. Forde to the effect that if the Plaintiff is relying on general powers not conferred upon it by Section 966, such general powers do not exist or if they do the Revenue Commissioners may not delegate them in a manner authorising the commencement of the present proceedings.

13. Dr. Forde, S.C., submits that it is unprecedented and in breach of the Defendant’s constitutional rights that an interim order would continue in existence without the affected party being given an opportunity to have his side of the case heard on an interlocutory motion, for such a long period as applies in the present case. He accepts that he has no quarrel with the period up to October 1998 because he accepts that his client agreed to further extensions of the Order up to then, but complained strenuously about the continued extension of the Order since then despite several applications on behalf of his client to compel the Plaintiff to bring an interlocutory application so that his side of the matter could be heard, and several further attempts by him to have the Order discharged - all of which failed, he submits, for reasons outside his control.

14. In response, Mr. Nesbitt, S.C., points to the history of these proceedings, including the history before October 1998 which he says demonstrates that the Defendant himself requested adjournments of listings of this case at which his side of the case could have been heard. Mr. Nesbitt refers to motions brought at a relatively early stage in that history and to an Order of the late Shanley J. made on 27th March, 1998 adjourning the Defendant’s application to have the initial injunction discharged or alternatively varied “ upon the application of Counsel for the Defendant for an adjournment ....”.

15. He further refers to an Affidavit sworn herein by Francis H. Cassidy on behalf of the Plaintiff on 1st February, 2000 wherein a history of these proceedings is set out. The uncontested averments include reference to the fact that these cases (that is the present case together with other linked proceedings involving the same parties) had been listed for hearing on eleven separate occasions, six of them peremptorily as against the Defendant; and to the fact that the Defendant had applied for an adjournment of the cases on no fewer than ten separate occasions resulting in the cases not proceeding on eight separate occasions. The details of these listings and the adjournments and reasons for the adjournments are set out in detail in the said Affidavit of Francis Cassidy. I was also referred to a further Affidavit of the said deponent dated apparently the 5th February, 2000 wherein an exhibited schedule sets out in great detail the history of this litigation. It is fair to say that the tenor of the Court’s response has been to insist that the cases be listed peremptorily as against the Defendant. For example, it is stated that on 26th June, 1998 Counsel for the Defendant applied for an adjournment on the basis that he had only just recently got a new accountant. The adjournment was granted and the matter listed for hearing on 12th October, 1998 “peremptory, peremptory, peremptory ”.

16. Against this background Dr. Forde is, of course, compelled to concede that the period up to October of 1998 could not be the subject of complaint by his client as regards delay. Since then, however, the Defendant’s application to vary the mareva injunction was heard and judgment given on the 24th of June last year when it was refused. A further motion to vary was heard and refused on the 16th of July, 1999 and a further motion again dealt with on 2nd September, 1998 regarding living expenses. A further motion seeking a declaration that the interim injunction no longer applied was heard and refused on 29th October, 1999.

17. The background shows that for the first 18 months following the initial mareva injunction the Defendant not only acquiesced in the postponement of the hearings but applied for and was granted adjournments thereof at his own request. Since October 1998 he has applied for variation of the mareva order and has been granted such relief in part. In recent months he has through his present Counsel made the case that no order exists as against his client and the Court has dealt with this and now he makes the case that the Order throughout this entire period is an ex parte Order which has gone on so long that is amounts to a violation of his constitutional rights. This submission entirely ignores the true picture which includes the fact that for the greater part of the period of “delay”, the proceedings have been adjourned with the consent of or at the insistence of the Defendant himself, and that during the latter part the Court has entertained and in part granted relief to the Defendant at his request for variations of the mareva injunction.

18. I cannot agree that in these circumstances the delay has been such as to amount to an infringement of the Defendant’s constitutional rights.

19. Dr. Forde has referred to a number of statutory provisions in the United States which make it clear that where ex parte pre-judgment interference with a defendant’s property is explicitly authorised by statute, such defendant must be granted a rapid entitlement to take countervailing steps before the Courts and that enactments which breach this principle have been held to offend against the American Constitution.

20. In the present case the original ex parte Order was made on 15th April, 1997 and a notice of motion seeking an interlocutory injunction was returnable for 21st April, 1997. The history of the proceedings thereafter shows at the very least acquiescence on the part of the defendant to an adjournment of this application together with repeated and successful applications that the Court would postpone dealing with it on occasions when the Court and both parties were capable of having the interlocutory hearing determined.

21. I am unable to agree that in these circumstances any delay has elapsed which justifies the criticisms which the Defendant now seeks to make.

22. Dr. Forde, S.C., submits that the question as to whether the Courts in this country have jurisdiction at all to grant mareva injunctions has never been decided and therefore it is open for me on this application to consider whether such jurisdiction exists. He readily accepts that the Courts have proceeded upon the basis that such jurisdiction exists and have applied it but he submits that the question of the jurisdiction itself has never actually been determined.

23. He proceeds, on this basis, to refer me to American authority where it seems that the Federal Supreme Court has decided that the Courts in that country do not have such jurisdiction preferring to leave it to Congress to create such a jurisdiction.

24. It seems to me that the question as to whether the Courts in this country have such a jurisdiction has been determined.

25. The learned Chief Justice then went on to point out that in Pollypeck International Plc. -v- Nadir, (No. 2), (1992: 4: AER: 769), the Master of the Rolls and Scott LJ stressed that mareva relief is not intended to give security in advance of judgment but merely to prevent a defendant from defeating the plaintiff’s chance of recovery by dissipation of assets.

26. The learned Chief Justice then went on to enunciate the circumstances in which this injunction will be granted.

27. It seems to me clear that this judgment not only proceeded upon the basis that the jurisdiction existed but indeed examined the roots of the jurisdiction and formally accepted that the traditional common law principle had been developed and altered and applied in this jurisdiction as so developed and altered.

28. O’Flaherty J in the same case commences his own judgment by acknowledging an absence of any remedy for a creditor against the debtor who was prepared to depart the country or dissipate his assets in defiance of the creditor’s rights. This was a serious defect and it is perfectly clear from his judgment that O’Flaherty J also came to a determination that the developed and altered jurisdiction was available in this country. At page 170 he said:-

29. I was referred to a number of others cases including the judgment of McWilliam J in Fleming -v- Ranks , (1983: ILRM: 541) where he too addressed the question of jurisdiction and at page 546 determined:-

30. In light of my understanding of the decision of the Supreme Court in Mahony -v- Horgan , I must accept that it is not open to me to reconsider the question whether the Irish Courts have jurisdiction.

31. A second point made by Dr. Forde, in this context, is that even if the Irish Courts have a general jurisdiction to grant mareva injunctions, they do not have such jurisdiction in this kind of case. The Revenue Commissioners and their authority are creatures of statute which must be construed strictly against them in favour of the tax payer if there is any ambiguity. The tax code has conferred several specific powers upon the Revenue Commissioners but nowhere does it confer upon them a power to seek mareva injunctions. The Court should not interpolate into the tax code specific powers which are not put there by the legislature. He referred me to specific powers in the United States Internal Revenue Code, for example, Section 7402 of Title 26 “Internal Revenue Code” of the United States annotated code. Where relevant Section 7402 provides:-

32. Dr. Forde, S.C., submits that there is no equivalent provision in the Irish tax code although Mr. Nesbitt, S.C., refers me to Section 849(3) of the Taxes Consolidation Act, 1997 which provides where relevant:-

33. Mr. Nesbitt’s main response to this submission, however, is to refer me to the third edition of “the Irish Constitution” by Professor JM Kelly at pp. 408/9 where the text, includes the following:-

34. Mr. Nesbitt submits that it is not a question of authority being conferred upon his client but rather a question of the jurisdiction of the High Court itself to put right a wrong for which injustice or remedy may be required.

35. I have been referred, in this context in addition to The Incorporated Law Society of Ireland -v- Carroll & Ors (1995: 3: IR: 145), and Mahon -v- Butler (1997: 3 IR: 169). It is submitted by Dr Forde S.C. that even if there is a general jurisdiction in the Irish Courts to grant Mareva Injunctions, these can only be made in circumstances where prior to the judicature acts, a Court of Equity would have exercised jurisdiction. Income tax collection and recovery was an exclusively statutory code recoverable in the Court of Exchequer Chamber in respect of which equity had no role. Therefore it is submitted that the Irish authorities if they do indeed (contrary to his submission) determine that the Irish Courts have jurisdiction to grant Mareva Injunctions, do not explicitly address a case such as the present. It is conceded by the Plaintiff that there is no express statutory authority authorising them to seek a Mareva Injunction; he submits that unless the relevant statutory code expressly so provides (as do for example the Copyright Act, the Patents Act, the Trademarks Act and the Planning Acts) equity would not aid the assertion of a purely statutory right.

36. In support of this proposition he referred to the Law Society case and Mahon -v- Butler.

37. The central issue in the former case was whether the Law Society had the necessary locus standi to bring the proceedings given that there was no suggestion that anyone other than the Attorney General could seek an injunction in the public interest to restrain an offence being committed in breach of a statute. (See esp. p. 173 and p. 175).

38. What I have to decide in the present case, however, is whether the Court has jurisdiction to grant a Mareva Injunction given that (as I have determined) the legislature has given the Plaintiff power to bring plenary proceedings for the recovery of tax.

39. Neither of these cases are exactly in point, as indeed is conceded by Dr Forde.

40. In the absence of clear explicit authority it is my view that when the jurisdiction of this Court is invoked by a Plaintiff which has statutory authority to bring proceedings by way of plenary summons, then the full jurisdiction of the High Court is invoked and, as I have already indicated, in my opinion, that jurisdiction includes a power to grant Mareva Injunctions.

41. It seems to me that the Plaintiffs in these proceedings have invoked the full original jurisdiction of the High Court which depends not upon the delimitation thereof by any statutory enactment but rather upon the provisions of the Constitution itself. It may well be that in particular instances access to the High Court may be restricted in a way which is not itself unduly oppressive for objective reasons without offending the provisions of the Constitution; in the present case, however, no such restriction appears in the relevant statutory provisions and I must conclude that the jurisdiction of the High Court invoked by the Plaintiff includes a jurisdiction where appropriate to grant a mareva injunction.

42. Mr. Humphries, BL, for Mrs. McSweeney (who was a Notice Party to the Defendant’s application) adopts the submissions and arguments of Dr. Forde but in addition submits that since no substantive relief is claimed against his client the injunction should be discharged as it affects her.

43. The Affidavit grounding the application for the initiating mareva injunction specifies that whereas the Defendant is beneficial owner of the properties mentioned, some are registered in his wife’s name. Furthermore, on her behalf her Solicitor wrote on 25th March, 1997 seeking, inter alia, the return of all deeds and documents which had been seized on an earlier occasion. She has clearly been involved closely in the progress of these proceedings and indeed has been granted separate representation because of her interest.

44. I intend no disrespect to the submissions of her Counsel when I say that I consider that this is clearly a case where it is appropriate that the Court would make and continue in being a mareva injunction which restrains not only the Defendant but also Mrs. McSweeney.

45. Her Counsel has submitted, further, that by reason of delay the injunction should be set aside. Mrs. McSweeney brought her own earlier application on this ground which I refused on 17th February, 2000 and I see no reason to change my mind.

46. He further submits that as a matter of principle the criteria necessary for the obtaining of a mareva injunction should apply at any time during the life of such an injunction: accordingly, it is appropriate now for the Court to consider whether the Horgan criteria apply even if it is not now appropriate for the Court to reconsider whether they applied at the time when the Order was first made. Whilst Counsel was not able to refer to any authority for this proposition, he submitted that it was a matter of principle.

47. There is clearly a conflict on many issues on the Affidavits filed subsequent to the making of the initial Order in this action and if indeed there be a principle that the Court can review its own decision to grant a mareva injunction at any point during the operation of that Order then it must clearly do so in light of the full information at the time of making such a review. In my opinion there is nothing in the voluminous material before the Court, which I do not summarise here, which would justify me at this time in discharging the injunction insofar as it affects Mrs. McSweeney.