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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Criminal Assets Bureau v. H. (S.) & Anor [2002] IEHC 141 (25 January 2002) URL: http://www.bailii.org/ie/cases/IEHC/2002/141.html Cite as: [2002] IEHC 141 |
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THE HIGH COURT
REVENUE
1999 No. 23SR
BETWEEN
CRIMINAL ASSETS BUREAU
PLAINTIFF
AND
S.H AND R.H
DEFENDANTS
Judgment of Mr. Justice Finnegan delivered on the 25th day of January 2002
The Plaintiff has obtained a garnishee order against certain assets of the Defendants. On this application to me the Defendants seek the following reliefs:
(1) an order setting aside the garnishee order upon the ground that it is ultra vires the Plaintiff to execute on foot of a final Judgment in its favour in the amount of €l,778,343.76;
(2) an order staying execution until such time as costs on a solicitor and client basis incurred by the Defendants are paid out of the assets attached by the garnishee order in accordance with a direction of Mr. Justice O'Higgins.
The Defendants' argument on the first matter is as follows:
'The Plaintiff is a corporation created by statute namely the Criminal Assets Bureau Act 1996. That Act in s.4 thereof sets out the objectives of the Plaintiff and in s.5 the functions of the Plaintiff. It is clear from sections 4 and 5 aforesaid that the Plaintiff's sphere of activity is circumscribed and it is confined both as to its objectives and functions to acting in relation to assets which derive or are suspected to derive directly or indirectly from criminal activity. The Judgment obtained by the Plaintiff relates to revenue liabilities which have no relation to criminal activity. Further the liability to tax does not arise on foot of an assessment coming within the provisions of the Taxes Consolidation Act 1997 s. 58(1) and accordingly the Plaintiff has no power pursuant to that section to execute in respect of the Judgment in its own name.
Where a corporation has been incorporated by an Act of the Oireachtas the Act becomes the charter of the corporation declaring its rights and powers and prescribing its duties and obligations. Mann v Edinburgh Northern Tramway Company (1893) AC 69 at 79.
All incidental powers attach as of course to such a corporation and this includes a power to sue or be sued: Hallsbury Fourth Edition re issue Volume 9(2) para 1130. Even if the law were not so well settled in the present case the Judgment obtained by the Plaintiff in the High Court was appealed by the Defendant to the Supreme Court and there upheld and it is not now open to challenge. Having the power to sue the Plaintiff equally has the power to execute on foot of any Judgment which it may obtain. On the basis of the foregoing I am satisfied that the Defendant's argument must fail insofar as reliance is placed exclusively on the Criminal Assets Bureau Act 1996. Insofar as reliance is placed on the Taxes Consolidation Act 1997 s. 58 again the Judgment being final and unappealable it cannot be now questioned before me. Having obtained Judgment it must follow that the Plaintiff can execute on foot of the same. In any event s.58 has the effect of empowering the Plaintiff to raise assessments, demand the tax charged in such assessments in its own name and to issue a receipt in its own name. I am satisfied that these express statutory powers must be read as carrying with theirs an implicit power to sue and to execute in each case in its own name. Accordingly I find no support in the Taxes Consolidation Act 1997 for the Plaintiff's argument.
The Criminal Assets Bureau Act 1996 s.8(8) provides as follows:
"(8) A member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, who is a bureau officer, notwithstanding his or her appointment as such shall continue to be vested with and may exercise or perform the powers or duties of a member of the Garda Siochana, an officer of the Revenue Commissioners or an officer of the Minister for Social Welfare, as the case may be for purposes other than the purposes of this Act as well as for the purposes of this Act. "
It is clear from the pleadings already had herein upon which Judgment has been obtained that the Plaintiff is a Bureau Officer appointed to the Criminal Assets Bureau pursuant to s.8 of the Criminal Assets Bureau Act 1996 and also an officer of the Revenue Commissioners nominated by the Revenue Commissioners to exercise the powers and functions of the Collector General and that the proceedings were taken in the name of the Criminal Assets Bureau pursuant to the provisions of s.10 of the Criminal Assets Bureau Act 1996. Section 10 of the 1996 Act provides for anonymity of a bureau officer who is an officer of the Revenue Commissioners. I am satisfied that the effect of s.10 subsections 4, 5, 6 and 7 requires that proceedings which would otherwise be instituted in the name of a Revenue official must where that Revenue official is a bureau officer be instituted and maintained in the name of the Criminal Assets Bureau: by necessary implication from the express provisions of s.10 execution on foot of Judgment obtained in any such proceedings must likewise be in the name of the Criminal Assets Bureau.
For these reasons I reject the Defendants' argument on the first matter mentioned above and refuse the relief sought.
With regard to the second matter there is no issue between the parties as to the entitlement of the Defendants to have the costs declared for by Mr. Justice O'Higgins discharged out of the assets which have been attached by the garnishee order. The dispute between the parties resolves itself to this. The Defendants have agreed a sum for the costs with their legal advisors and claim to be entitled to have the sum so agreed paid. The Plaintiff is willing to have the costs taxed on a solicitor and client basis. There can be no question but that the Plaintiff has an interest in the amount of costs to be paid by the Defendants - the greater the amount so paid the less there will remain of the assets attached to satisfy its judgment. It has long been the case that a person interested may require a bill of costs to be taxed. Thus a trustee in bankruptcy is entitled to require costs agreed between the bankrupt and his solicitor taxed: re Allingham (1886) 32 Ch D 36 where taxation was on a solicitor and client basis. Again a person beneficially interested in an estate is entitled to have the executors costs taxed: Ex p Dickson (1856) 44 E.R. 542. Similarly a cestui que trust the trustees costs: re Spencer, Spencer v Harte (1881) 51 L.J.Ch 271, Langford v Mahoney (1843) 51 IEgR 569. The matter is now dealt with by statute in the Attorneys and Solicitors Act 1870 s8 which provides for the taxation of costs notwithstanding an agreement between the solicitor and client on application by a person liable to pay the costs in respect of which such agreement has been made: the order for taxation is made by the court in which the business or any part thereof was done or a Judge thereof without suit or action on motion or petition of such person. The court has a discretion as to whether taxation should be ordered or not. The principles upon which such taxation will be ordered are well settled and I am satisfied from a perusal of the authorities that this is an appropriate case in which such taxation should be ordered. If requested to do so by the Plaintiff I will order taxation of the Plaintiff's costs the subject matter of the order of Mr. Justice O'Higgins on a solicitor and client basis as between the Solicitor and the Plaintiff. If the Plaintiff gives an undertaking to the court to discharge the amount found due on such taxation I will allow execution to proceed.