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1. The Defendant’s initial point is that the Plaintiff has failed to prove his claim, and therefore the proceedings should be dismissed. These technical matters can be dealt with very shortly. The first point raised is that the Plaintiff is relying to some degree on hearsay evidence, particularly in relation to the appointment of Officers of the Criminal Assets Bureau. This must be considered in the light of the provisions of Section 10 of the Criminal Assets Bureau Act, 1996 , which preserves the anonymity of any Officer of the Bureau, and I also have regard to the fact that both Detective Chief Superintendent McKenna, who is the Chief Bureau Officer of the Criminal Assets Bureau, and Mr Barry Galvin, the Bureau Legal Officer, whose Affidavits grounded this application, were cross-examined on their Affidavits, and in my view their evidence under cross-examination was in itself sufficient proof of the matters averred to.

2. The Defendant also complains that the Plaintiff failed to prove that the appointment of the Bureau Officers was made with the consent of the Minister for Finance as required by Section 8(1)(a)(ii) of the 1996 Act. While the Grounding Affidavits do not expressly state that the relevant Officers were appointed with the consent of the Minister for Finance, Mr Galvin’s Affidavit does state that such Officers were appointed “pursuant to Section 8 of the Criminal Assets Bureau Act, 1996 ” and in my view this clearly implies that this was done with the consent of the Minister for Finance, and it was not suggested to Mr Galvin when he was cross-examined on his Affidavit that there was no such consent.

3. The final technical objection taken on behalf of the Defendant is that Section 869 of the Taxes Consolidation Act, 1997 required the demand to be served by an Officer of the Revenue Commissioners, while in fact the evidence is that it was served by a member of Án Garda Síochána. There is no suggestion that the demand was not in fact served, and this is purely a technical objection. A similar objection was raised on behalf of the Defendant in Criminal Assets Bureau -v- Craft (Unreported O’Sullivan J. 12th July 2000) and was rejected on the basis that there was no detriment to the Defendant and the de minimus rule should be applied. I think this was a correct approach in the circumstances.

4. Accordingly, I am satisfied that the Plaintiff has complied with all necessary technical proofs, and the proceedings ought not to be struck out. I must now consider whether the Defendant has been able to show a stateable defence. I think the proper test to apply is that applied by Morris J. (as he then was), and approved by the Supreme Court in Bank of Ireland -v- Educational Building Society [1991] 1 I.R. 220, namely that the Court should be satisfied that there was “a fair and reasonable probability of the Defendant having a real and bona fide defence to the proceedings.” To understand the nature of the defences put forward on behalf of the Defendant it is necessary to consider in some little detail the background to these proceedings.

5. The Defendant and his father ran a bureau d’exchange business. In October 1999 the premises of this business were raided by Officers of the Garda Bureau of Fraud Investigation, and the books and records of the business and very substantial amounts of cash and securities were seized. Subsequently, the Defendant was charged with money laundering offences, which charges as I understand it have not yet come to trial. Following the raid and seizure the Director of Public Prosecutions obtained an Order from the High Court pursuant to Section 24 of the Criminal Justice Act, 1994 , prohibiting the Defendant pending a Confiscation Order from dealing with “all his realisable property” including an expressly named bank account, subject to an allowance of £300 per week for living expenses. Subsequently an Order was obtained in Northern Ireland, it appears on the application of the Northern Ireland Director of Public Prosecutions, prohibiting the Defendant from disposing of, dealing with or diminishing the value of any of his assets wherever they may be situated, subject to an allowance for legal advice and representation. Further Orders against the Defendant were also apparently obtained in the Isle of Man High Court and in Guernsey.

6. On the 15th of May 2000 an income tax assessment was raised on the Defendant for a sum, including interest, of £775,808. On the 24th of May 2000 the Defendant’s Accountants sent a letter purporting to be a Notice of Appeal against the assessment, and stating:-

7. By letter of 30th of May 2000 the Inspector of Taxes refused to accept this appeal on the basis that it did not comply with Section 957 of the Taxes Consolidation Act, 1997 in that no return was delivered and there was no payment of the amount of tax admitted due. It was also pointed out by the Inspector of Taxes that the Defendant was at all times notified that copies of all or any of the documents seized would be made available to him should he require them, and offered an inspection of such documents. It is also relevant that in the Defendant’s purported appeal his Accountants made an offer to pay on account the sum of £250,000 from funds which were alleged to be in the possession of the Criminal Assets Bureau. In rejecting the appeal, the Inspector of Taxes stated that the funds had been seized by Officers of the Garda Bureau of Fraud Investigation and that it was a matter for them to release funds.

8. On the 15th of June 2000 a demand for payment was served on the Defendant for the sum of £775,808 which was met by a request for additional time to complete a Statement of Affairs and Return of Income, and this was followed on the 17th of July 2000 by an offer by the Defendant’s Accountants to pay £200,000 “out of the funds which are in your possession”. On the 7th of June 2000 the Defendant’s Accountants had inspected a number of the documents which had been seized and copies of some of these were taken, and on the 25th of July 2000 the Defendant’s Accountants furnished the Criminal Assets Bureau with a list of documents which were required.

9. On the 17th of July 2000 the Defendant applied to the High Court for leave to issue Judicial Review proceedings seeking an Order of Certiorari quashing the assessment and an Order of Prohibition against any recovery measures being taken. Leave was originally granted as requested, but subsequently, on the application of the Plaintiffs, was limited as to the grounds upon which the relief could be sought. Those proceedings have now been stayed pending the outcome of this action.

10. The Defendant has put forward a number of grounds of defence which he says can only be determined if the matter is sent for Plenary hearing. The essence of his defence and certainly his most arguable case on the facts is that under the Taxes Consolidation Act, 1997 he has thirty days in which to appeal, make a return and pay the amount which he alleges is due. In his Affidavit he sets forth this ground of defence as follows:-

11. It seems to me that there must be some substance in the allegation that it probably would not have been possible to have the Mareva Injunction in this jurisdiction lifted or varied and, as would have been necessary, the world-wide Mareva Injunction in Northern Ireland lifted or varied within the thirty day period, and thus it would have been impossible for the Defendant to comply with the requirements for appealing the assessment. With regard to the availability of the documentation, it must be said that no attempt appears to have been on behalf of the Defendant within the relevant thirty day period to obtain copies of the documents, but again there must be a serious question as to whether there could have been sufficient time to obtain copies of all documents and to enable the Defendant’s Accountants to submit a return based on those documents. On the basis of these arguments it does seem to me that the Defendant has brought himself within the tests that there is a reasonable probability of his having a real and bona fide defence, and that these matters cannot be determined other than on a Plenary hearing.

12. I should comment on one other ground that has been put forward on behalf of the Defendant, namely that on the proper construction of Section 957 (2) of the Taxes Consolidation Act, 1997 the time to appeal an assessment does not run until a return has been made and tax has been paid. This is based on the wording in the subsection:-

13. If this construction is correct, and the time for appeal has not yet commenced, then logically the assessment has not become absolute or final. As I feel that the case must go to a Plenary hearing in any event, I would leave the determination of this ground to such a Plenary hearing, but having regard to the fact that tax legislation must be construed strictly, there certainly is an arguable case in favour of this construction, however much it may be contrary to the scheme of the Act.

14. The Defendant also seeks to raise certain constitutional points, and has served a Notice pursuant to Order 60 of the Superior Court Rules setting out these points. Again, as the matter is to be sent for Plenary hearing, I think there is little or no point in my adjudicating on those constitutional matters at this stage, and they will also have to be left over to be dealt with at the Plenary hearing.