Court of Appeal dismisses appeal where High Court correctly struck out time-barred tax claims.

APPROVED

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THE COURT OF APPEAL

Record Number: 2025/26

Neutral Citation Number [2026] IECA 20

Faherty J. Hyland J. Collins J.

BETWEEN/

THOMAS FARRELL AND THOMAS FARRELL AND SONS (GARAGES)

LIMITED

PLAINTIFFS/

APPELLANT

- AND -

REVENUE COMMISSIONERS IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/

RESPONDENT

Judgment of Ms Justice Faherty dated the 25th day of February 2026

1. This is Mr. O’Farrell’s (hereinafter “the appellant”) appeal against the judgment ([2024] IEHC 553) and Order dated 31 October 2024 (as perfected on 9 January 2025) of the High Court (Kennedy J. (“the Judge”)) refusing the relief sought in the appellant’s notice of motion which issued on 1 August 2023. The motion was grounded on the appellant’s affidavit sworn the same date.

2. In short, the notice of motion sought “an order of direction and guidance from the High Court that this matter is not statute barred and may proceed to trial”. The “matter” were the within plenary proceedings instituted by the appellant and Thomas Farrell and Sons (Garages) Limited (“the Company”), seeking, inter alia, an order of rescission setting aside two settlement agreements (hereafter for ease of reference “the Settlement”) entered into between the parties on or about 9 October 1995 following the instigation in 1994 of a tax audit by the first defendant (“Revenue”). The plaintiffs also sought the return and restitution of sums of IR £136,533 and IR £364,812 paid on foot of the Settlement, together with interest, damages for negligence, negligent misstatement, breach of duty, misrepresentation, breach of contract and, if necessary, a declaration that s. 865 of the Taxes Consolidation Act 1997, as amended, (“the 1997 Act”) was invalid and repugnant to the Constitution.

3. There were in fact two motions before the High Court which gave rise to the judgment. As it was considered by Revenue that the appellant’s motion did not comply with the Rules of the Superior Courts 1986, as amended, (“RSC”), Revenue issued its own motion which sought orders striking out or staying the proceedings by reason of their having been brought outside the applicable limitation periods, or on grounds of delay pursuant to the court’s inherent jurisdiction, or pursuant to Order 19, r. 28 RSC. I should say that the Judge determined both motions.

4. The Judge concluded, inter alia, that on the facts as pleaded and averred to by the appellant, any claims he made were statute-barred. In particular, he found that there was no basis upon which the requisite time limits for the claims advanced by the appellant could be extended by reference to s. 71(1) of the Statute of Limitations, 1957 (“the Statute”).

Background

5. On 4 May 1994, notifications of an audit in respect of the tax years 1992-1993 were sent to the appellant, the Company and a number of other corporate entities that he controlled. The audit commenced on 18 May 1994 and was undertaken by Mr. John Dalton on behalf of Revenue. The appellant met with Mr. Dalton on that day. As deposed to in the affidavit of Mr. Paul Kennedy of Revenue sworn in response to the appellant’s grounding affidavit, on 19 May 1994, the appellant and two of his professional advisors called to the offices of Revenue by prior appointment and “indicated that they wished to make a disclosure in relation to monies on which tax had not been paid…”. The affidavit also referred to a meeting between the appellant, his agents and Revenue on 27 May 1994. The notes of the aforesaid meetings, exhibited by Revenue, confirmed that at the 27 May 1994 meeting, the appellant and his companies “offered a sum of IR£501,365 in settlement of the liabilities arising from these disclosures and the Revenue Official’s examination of the books and records of the entities that were the subject of the audit”. The offer was accepted by Revenue.

6. On 9 October 1995, agreement was ultimately reached between the parties as to the terms on which the Revenue audit would be suspended and the disclosed liabilities discharged. On 13 February 1996, Mr. Dalton wrote to the appellant and the Company confirming that their respective offers in full settlement of Revenue’s claim for “tax undercharges, interest and penalties” had been accepted. Payments were duly made by the appellant and the Company on foot of the Settlement, although Revenue disputes the timing and amount of such payments.

7. It is not in dispute that between 1995 and 2018 there were various communications between the appellant and Revenue concerning the Settlement (of which more anon) which culminated in the issuing of the within proceedings on 1 October 2020.

The case advanced in the High Court

8. In summary, the appellant’s pleadings, affidavits and submissions raised the following allegations in the court below:

• The Settlement arose from Revenue’s demands during the 1994 tax audit in circumstances where such taxes were not due, Revenue’s demands having been based on a false premise.

• Revenue knew that no taxes were owed or had no proof such taxes were owing.

• The Settlement was procured under duress, namely Revenue’s threat to withdraw tax clearance certificates which would have been “catastrophic” for the appellant’s business, thereby constituting an unconscionable and unlawful threat to compel an unjustified settlement.

• The appellant reluctantly agreed to the Settlement subject to Revenue’s commitment to provide further details of its computation (“the Payment Condition”) but Revenue failed to provide such details despite repeated requests over the years.

• In or about 2013, Revenue commenced another audit of the appellant and the Company, and the appellant retained tax advisors for the purposes of this audit. According to Revenue, this audit was unrelated to the previous audit and arose from the acquisition of second-hand cars from the United Kingdom.

• In order to prove that no taxes were owed in respect of the 2013 audit, the appellant sought details of all the bank accounts in the name of the appellant and of the companies of which he was a shareholder. In response to this request, Allied Irish Bank (“AIB”) furnished the appellant’s tax advisors with a list of bank accounts one of which was what hereafter will be referred to as “the 051 account”. This information was furnished by AIB on 12 September 2014 and was followed by a further confirmation dated 27 January 2016. At para. 32 of the statement of claim, the appellant pleads that upon his review of the information furnished by AIB, he discovered some 14 bank accounts had been “fraudulently and wrongfully” opened in his name. Four of those accounts (including the 051 account) had been opened for the benefit of a named third party for the payment of tax rebates. At para. 35, he pleads that he was “stunned and shocked” by his discovery of the unauthorised bank accounts.

• After the appellant raised the issue, both Revenue and AIB accepted that neither he nor the Company had opened the aforementioned accounts. Moreover, the party responsible for the accounts made a substantial settlement with the Revenue.

• The appellant and his tax advisors demanded reimbursement of the IR £501,365 but Revenue has wrongfully refused to compensate the appellant and the Company either by way of reimbursement of the IR £501,365 or otherwise.

• When dealing with the 2013 audit, the appellant’s tax advisors also requested a copy of the Revenue file relating to the 1994-1995 audit. This was acceded to by Revenue in December 2014/January 2015, when the appellant’s advisors obtained access to and copies of his Revenue file (although the appellant claims that certain documents were withheld).

• As a result of the information obtained, the appellant concluded that the Settlement amount was an arbitrary figure demanded by Revenue as a matter of convenience rather than a genuine assessment of liability. The appellant also concluded around this time that the Settlement concerned funds that had passed through the 051 account and other “bogus” accounts held in the name of the appellant and his wife.

• The appellant contended that the Settlement “was unconscionably, fraudulently and wrongfully both demanded and forced by Revenue, by threat, extorsion, coercion, unlawful and abusive duress and the exertion of undue influence … in addition, there was the subsequent non-compliance Payment Condition and the misrepresentation on account of Revenue’s related assurances and representations which [the appellant] relied upon…” (para. 51 of the statement of claim).

• It was expressly pleaded at para. 54 of statement of claim that it was only from and after January 2015 that the appellant became aware that none of the IR £501,365 was owed to Revenue, either by him or the Company.

9. As explained by the appellant’s counsel at the appeal hearing, the 051 account is the “key” document upon which the appellant bases his right of action. The argument now being advanced, in a nutshell, is that it was only upon the accumulation of information concerning the relevant Revenue file received from Revenue in December 2014, January 2015, August 2018, and finally 28 September 2018, that the appellant was able to formulate a claim that allowed him to institute the within proceedings (and that hitherto Revenue had concealed his right of action by keeping the 051 account from him). The appellant contends, essentially, that the liability imposed on him in the 1994 audit had its genesis in the 051 account. He derives support for this contention from the contents of a working document utilised by Mr. Dalton in the course of the 1994 audit where under the heading “Undisclosed Deposit a/c” there is reference to a lodgement of IR £590,000. This figure, it is said, roughly equates to the sum of IR £591,907.58 which the appellant’s now advisors have computed as standing in the 051 account at the time of the 1994 audit.

10. Revenue delivered a full defence in respect of the claims made by the appellant, pleading, inter alia, that at all relevant times the appellant and the various other corporate entities that were subject to the 1994 audit had professional advisors at the time; that it was the appellant and/or the various other corporate entities that initiated the disclosures which gave rise to a liability to tax and/or who by themselves, their servants or agents, calculated the relevant liabilities to tax and/or proposed the terms on which such liabilities were to be met. It was also pleaded that following a further intervention by Revenue in 2013 (the 2013 audit), a significant sum was paid to Revenue in settlement of outstanding liabilities to tax by and/or on behalf of the appellant and the Company. Paragraph 28 of the defence pleaded that the proceedings disclosed no stateable cause of action. At para. 29, it was pleaded that any claim in respect of the tax years prior to 2016 was statute barred and/or barred by operation of the applicable legislation and/or barred by operation of s. 865 of the 1997 Act. Further and/or in the alternative, Revenue pleaded that the appellant and the Company were guilty of inordinate and inexcusable delay in commencing proceedings some 25 years after the matters complained of, which was grossly prejudicial to the defendants.

11. Whilst Revenue put the timing and amount of the payments the appellant made consequent on the Settlement in issue in its defence, for the purposes of the motions before the High Court, the contention that IR £501,365 was paid between April 1995 and April 1998 was taken at face value without prejudice to the position of Revenue if the proceedings were not dismissed.

12. The “Payment Condition” was denied by Revenue on the basis that (i) that there was no such term reached between the parties, and (ii) that neither Revenue’s practice nor contemporaneous documentation supported the existence of a “Payment Condition”. It was further pleaded that on the appellant’s own case, even if such a condition existed (which was denied), it was allegedly breached on a date or dates after 27 May 1994 when Revenue refused to furnish information sought by the appellant.

13. Various contemporaneous documents were exhibited by the appellant and Mr. Kennedy in their respective affidavits. In order to put the arguments advanced on the appeal into context, it is instructive to refer to these documents and I do so below.

14. A Revenue file note of 19 May 1994 (compiled by Mr. Dalton) confirmed the appellant as the initiator of negotiations which took place at the meeting of 19 May 1994 (at which the appellant was accompanied by two tax advisors). Revenue was informed that he “wanted to make a full disclosure…”. The appellant's disclosures focused on “a substantial undisclosed deposit account with the TSB with funds of approximately £300,000. This account had previously been held with the Allied Irish Bank and was transferred to the TSB some two and a half to three years ago. This account was in place for a long number of years and the monies accumulated would have been as a result of non-disclosure of car sales, other business takings and the excess of grants from Esso and other amounts expended on premises”. The file note also documented other issues raised by the appellant as noted by the Judge at para. 13 of the judgment.

15. The file note (again compiled by Mr. Dalton) of the meeting of 27 May 1994 (where the appellant was accompanied by one of his advisors) noted that the meeting had been requested by the appellant. It records Revenue’s view that the records that had been produced were “clearly deficient”. It also records the appellant’s and his advisor’s shock at the figures being presented by Mr. Dalton which caused the meeting to be adjourned for a period of time on 27 May 1994. According to the appellant, his shock was in circumstances where he had had a full audit of his books carried out for the period 1987- 1992 in the course of a Revenue audit conducted in 1992. It is said by the appellant that in 1994 he believed he had no choice but to pay the sum assessed by Mr. Dalton as owing, subject, however, to the “Payment Condition”.

16. As the record shows, the 27 May 1994 meeting was reconvened later on that day at the request of the appellant’s advisor for the purposes of negotiating a settlement. The file note records that Mr. Dalton’s computation “indicated a liability of £605,184 including interest and penalties” and that the appellant “wanted to settle the matter” and “wished to offer £501,345 in full and final settlement…”. It records Mr. Dalton's decision to recommend acceptance of the offer.

17. It is also the case that, on 27 May 1994, the appellant signed “a certificate of full disclosure” of all "banking accounts, whether current or deposit, business or private" and confirmed that he understood a formal Revenue warning which advised him of the consequences if the disclosures should prove materially incorrect.

18. The documents exhibited by the parties also included letters of settlement dated 2 October 1995 from the appellant and the Company confirming the terms of the Settlement. The appellant's letter discussed arrangements for the payment by instalment of the balance of the settlement monies. Acceptances were signed by the Inspector of Taxes in respect of each letter on 9 October 1995. A further Revenue letter, dated 13 February 1996, also confirmed acceptance of the offer in full settlement of the tax, charges, interest and penalties.

19. One of the exhibits to the affidavit sworn by the appellant on 6 November 2023 in response to Mr. Kennedy’s affidavit, was a file note prepared by Mr. Dalton on 1 November 1995. It recorded, inter alia, that “[a] full disclosure was made in connection with the undisclosed deposit account that was held with [TSB]” and that an examination of the TSB deposit account showed that many of the transactions had been taxed previously "as they were reflected in the statements of affairs submitted from previous years" and that some of the lodgements to this account would have been of a non-taxable nature. The file note recorded that "[f]ull cooperation was received from [the appellant], his staff and the auditors" and that Mr. Dalton was satisfied that “the overall settlement arrived at adequately covers the liabilities arising".

20. The exhibited materials refer to further communication from the appellant to Revenue in December 2001 seeking a breakdown of his tax liability in respect of the 1994 audit. Revenue’s response on 8 January 2002 (the letter in fact is dated 8 January 2001 which I regard purely as inadvertent) informed the appellant that it was not in a position to furnish the requested breakdown and noted that the Settlement had been agreed between the appellant and Mr. Dalton on 6 October 1995. On 22 February 2002, Revenue wrote to the appellant advising that certain information sought by the appellant had not yet come to hand and that every effort was being made to have this information furnished.

21. There matters appear to have rested until August 2018 when the appellant again ventilated grievances arising from the 1994 audit. As explained by Mr. Kennedy at para.

30 of his replying affidavit, this complaint was treated as falling within “Revenue Complaints & Review Procedures”. Revenue’s response was contained in a letter of 28 September 2018 from Mr. Kennedy to the appellant and was based on an examination of the documentation on the Revenue files relating to the 1994 audit all of which, Mr. Kennedy advised, had been supplied to the appellant "with the exception of a small number of documents of which Revenue has claimed public privilege".

22. At the outset, the letter referred to Revenue’s policy regarding settlements and the need for certainty and finality in law, particularly in circumstances where "two parties have reached and agreed a settlement".

23. As to the issues raised by the appellant, Mr. Kennedy noted that the 1994 audit had commenced on 18 May 1994 and that on the day after the commencement the appellant and his advisors had informed the Revenue auditor (Mr. Dalton) that the appellant wished to make a full disclosure in relation to a previously undisclosed deposit account at TSB with funds of €300,000. The monies in the TSB account had previously been held at AIB. He referred to Mr. Dalton’s confirmation at the 18 May 1994 meeting that the TSB account had not been disclosed to Revenue until then. Mr. Kennedy’s examination of the file disclosed that the settlement agreed on 27 May 1994 “was computed on the basis of an examination of the records made available by [the appellant and the Company]”.

24. Mr. Kennedy disputed the appellant's statement that the 1994 settlement was based entirely on the undisclosed deposit accounts, stating that since “the total understatements computed in respect of the other components of the liability i.e. £549,691 exceed the compromise settlement, it would have been possible to construct the compromise settlement in such a way that it excluded the deposit account altogether”. He went on to state:

"The compromise settlement that was agreed was stated to be subject to an examination by Mr. Dalton of the deposit account when full details were supplied by you. The bank records were subsequently provided by your agent with the explanations and reconciliations. Mr. Dalton examined what was provided. Having excluded inter-account transfers he identified un-taxed lodgements including interest of £596,804. To mitigate the liability arising from this he was prepared to consider the possibility that some withdrawals may have been reflected in the statement of affairs and company accounts and therefore could be excluded from the computations of tax liability. Even allowing for exclusion of all such withdrawals there was still £284,000 of untaxed lodgements to be taken into account…''

25. Noting that the appellant's formal letter of offer to settle the liability had been received by Revenue on 30 September 1994 and that there had been further correspondence before the liability was finalised in October 1995, Revenue’s position was that the appellant “had ample time to consider the settlement until the final offer was made”. Mr. Kennedy noted that the appellant had stated that his agent had advised him to accept the liability and had outlined potentially serious consequences should he fail to do so.

26. Whilst Mr. Kennedy could not comment on the appellant's recollection of conversations with a Mr. Foley of AIB or a visit by Mr. Dalton to AIB on 23 May 1994 (as there was no record on file of the alleged visit), it was noted, as regards the latter, that the appellant himself had stated that Mr. Dalton “was accompanied to the bank by [the appellant']s agent”. In such case Mr. Kennedy considered that it was “fair to presume” that the agent had been in discussion with the appellant “on the relevant audit issues”. If that was not the case, then the appellant's issue “lies with [the appellant’s] agent at the time and not with the Revenue Commissioners”.

27. As regards the appellant’s contention that he was never informed of the existence of the 051 account, Revenue’s position was that the day after the 1994 audit commenced, “the existence of this previously undisclosed TSB account was disclosed to the [Revenue] auditor [by the appellant and/or his agents]” and that part of the subsequent audit enquiries was to determine the source of the monies lodged to the TSB account. Mr. Kennedy pointed out that this involved the appellant’s agents who provided information to Revenue to show that the money in the TSB account had come from a number of accounts held in AIB including the 051 account, and that that and another account had been used to acquire life policies, pay off the appellant’s loans, and acquire properties. Insofar as the appellant contended that he had never been informed of the existence of the 051 account, Mr. Kennedy’s response was that the review undertaken “clearly indicates” that the appellant had been given details of the 051 account by Revenue in a letter from Mr. Dalton dated 7 February 2003 which “gave a detailed schedule of all AIB accounts furnished by [the appellant’s] agents as part of the audit in 1994.”

28. The 28 September 2018 letter also stated that there was nothing on file to indicate that the appellant had made any request to access his file post the 1994 audit and prior to the access granted to him in 2014. Insofar as the appellant complained that Mr. Dalton had kept the files locked away for sensitivity and security reasons and regretted not having given them to the appellant, that, according to writer, was an incorrect reading of Mr. Dalton's note. What Mr. Dalton had said in his note was that he had locked the file away for sensitivity and security reasons (which would be normal practice for Revenue audits) and that he had failed to return business records relating to the 1994 audit to the appellant.

29. At the appeal hearing much was made by the appellant’s counsel of the fact that Mr. Dalton had not returned the appellant’s business records after the conclusion of the 1994 audit. On the basis that those records would have included the bank accounts (including the 051 account) from which Mr. Dalton computed the appellant’s and the Company’s initial tax liability of circa IR £590,000 (of which more anon), counsel argued that this was a factor to be considered by the Court in the context of the argument the appellant was advancing on the appeal. For reasons which will become apparent, I do not consider the non-return of the appellant’s business records a decisive factor in the case advanced by the appellant on the appeal.

30. The 28 September 2018 letter concluded by noting, inter alia, that the appellant, following the commencement of the 1994 audit, had made a voluntary disclosure in relation to an undisclosed bank account which was followed by a formal letter of offer from the appellant on 30 September 1994. In those circumstances, the appellant had had four months to consider and discuss with his agent the accuracy of the disclosure which he had made. As the payment proposal was not finalised until October 1995, at any time during the period 1994 to October 1995 the appellant could have withdrawn his disclosure and/or expressed his concerns about its accuracy to either his agent, or to Mr. Dalton directly, which was not done in the case of Mr. Dalton. Nor was there any correspondence on Revenue’s file to suggest that the appellant or his agent were dissatisfied or unhappy with Mr. Dalton’s calculation on the liability arising at that time.

31. The appellant and the Company were informed by Mr. Kennedy of their right to seek a review of Revenue’s response by an independent internal or external Reviewer. They did not do so. Nor did they issue proceedings at that time.

32. At para. 27 of his replying affidavit, Mr. Kennedy avers that in July 2019, Revenue again furnished the appellant with a copy of his file (in response to a further application under a freedom of information request by the appellant) with the exception of documents that would identify third parties. The appellant appealed Revenue’s refusal to release those documents to the Office of the Information Commissioner (“OIC”) in April 2020. Revenue’s decision was affirmed by the OIC and the appellant did not challenge that

decision.

The Judge’s analysis

33. As is clear from his “Discussion” of the issues before him, the Judge considered that the claim advanced by the appellant faced “formidable factual and legal hurdles” the most obvious of which were, firstly, whether there was any basis for the appellant and the Company to impugn the Settlement and, secondly, whether, if there were a basis for such a challenge, any such claim was now time barred either: (a) because it had not been commenced within the applicable statutory limitation period; (b) for want of prosecution; or (c) because a fair trial of the proceedings would now be impossible.

34. On the question of whether the appellant’s and the Company’s claims were timebarred, having observed that all of the applicable time limits for any claims the appellant and the Company may have had had run, the Judge considered that the appellant had not alleged facts or matters which would provide a stateable basis on which to invoke s. 71 of the Statute. As he put it, “although they have asserted (unparticularised) fraud on the part of those responsible for establishing the bank accounts, they have not put forward any basis on which to allege fraud by Revenue or its agents. If the Plaintiffs wish to plead such fraud, their vague and generalised assertions will not suffice. Parties advancing such serious allegations must provide proper particulars. No such particulars appear in the Plaintiffs’ pleading.” (para. 34)

35. He found that the appellant had not provided sufficient particulars to enable him to understand the circumstances in which the various bank accounts - and the 051 account in particular - were opened, or why such transactions were fraudulent. Moreover, there was no suggestion that Revenue was a participant in or responsible for the opening of such accounts. Accordingly, even if the accounts were fraudulently opened by other parties, “that would not provide a basis for the extension of the limitation period against Revenue”.

36. Furthermore, he found no basis in the contemporaneous documents, or in the pleadings, affidavits and exhibits before the court on which it could fairly be suggested that Revenue and its representatives were acting other than in good faith in entering the Settlement.

37. Even if there had been a basis for the appellant to advance fraud or fraudulent concealment on the part of Revenue or its agents, the Judge considered that that would still not avail the appellant, “as it would only delay the commencement of the limitation period until the plaintiffs either became aware, or should with reasonable diligence have become aware, of facts sufficient to support the accrual of a cause of action.” He stated:

“In my view, on the Plaintiffs’ own case, they were (or could with reasonable diligence have been) aware of sufficient facts on which to issue proceedings at the time of the Settlement or very soon thereafter. As my detailed summary of the contemporaneous documents and correspondence demonstrates, their awareness was repeatedly reinforced and underscored over the years.”

38. As the Judge saw it, the appellant’s core argument was encompassed in para. 42 of the statement of claim, namely that he and his advisors had first secured copies of (or access to) the relevant Revenue files “‘in or about’ December 2014 or January 2015 (and, even then, not the whole file)”. However, any suggested lack of awareness of the true position was contradicted by various statements made on the appellant's behalf over the years. Furthermore, even if lack of awareness could be established, that, of itself, did not extend the limitation period, as it fell to the appellant, in seeking to invoke s. 71 of the Statute, to show that the right of action was based on or concealed by the fraud of Revenue (or its agents). As the Judge explained:

“In either scenario, the period would be triggered when the Plaintiffs actually discovered the fraud or could with reasonable diligence have discovered the basic facts giving rise to the claim. Accordingly, the claim faces a high bar. The Plaintiffs must show either that Revenue acted fraudulently in respect of the Settlement or that they fraudulently concealed the Plaintiffs' right of action. I have seen no evidence or particulars to support either contention.” (para. 36)

On the appeal, counsel for the appellant took issue with these remarks asserting that the Judge applied the wrong test when considering whether the appellant’s right of action had been fraudulently concealed by Revenue. I will return to this in due course.

39. In the Judge’s view, the appellant's pleadings, affidavits and correspondence undermined any suggestion that Revenue had acted fraudulently in relation to the Settlement or any right of action of the appellant. He noted that from 27 May 1994 to 26 July 1998, the appellant had made seven unsuccessful attempts to obtain information about the Settlement, which indicated that he was dissatisfied from the outset as to the basis for the Settlement and dissatisfied by the rejection of his request for information. Yet, he had not issued proceedings as he could have. Moreover, any review conducted by the appellant in respect of the 1994 audit only commenced in 2013 (and then only in response to a later Revenue audit). All in all, the Judge saw no reason why the proceedings could not have been issued in the 1990s rather than in 2020 in which event the appellant could have sought discovery of the Revenue file. Moreover, the appellant had failed to identify specific facts allegedly concealed by Revenue which prevented the issuing of the within proceedings that he could not have identified with reasonable diligence.

40. Specifically, at para. 39, the Judge considered that the appellant could have clarified the status of the 051 account with his bank in 1994. In any event, the status of that account had been clarified by AIB’s letter of 12 September 2014. Yet more than six years were to elapse before proceedings were commenced.

41. Turning to s.71(1)(b) of the Statute, the Judge found no fraudulent concealment on the part of Revenue, which, he said, was entitled to conclude that the appellant was not entitled to further information. He considered that the nature of the appellant’s demand demonstrated his lack of understanding of his own responsibility to disclose his taxable income and that he should have been able, with his advisors’ help, to assess his and the Company’s liabilities. Indeed, the Judge was of the view that that was what the appellant and the Company were purporting to do when initiating the talks that led to the Settlement. He was satisfied that there was “no basis to allege conduct on Revenue's part that could possibly be characterised as constituting or concealing a cause of action”. He saw no basis for the appellant’s contention that evidence had emerged which was so significant as to require Revenue to reopen the basis for the Settlement “or that Revenue's alleged failure to undertake further investigations into the 051 Account constituted fraudulent concealment in the circumstances” (para. 44)

42. Insofar as the appellant and the Company maintained that they only established the true position once they accessed Revenue’s file (in December 2014/January 2015), the Judge found this “inconsistent with their other claims and their explanation does not justify their delay.” (para. 45).

43. In essence, he found that there was nothing to prevent the appellant, in 1995, from undertaking enquiries which were only undertaken in 2013, in particular in circumstances where the appellant and the Company had “expressly, but, apparently, inaccurately, represented to Revenue that they were investigating all bank accounts. If they had done what they had promised, then the position as to the 051 Account could have been clarified earlier”.

44. Whilst the Judge could not determine the true position with regard to the controversial bank accounts, or their ownership, or make any assessment as to what the appropriate settlement should have been in 1995, “the important point is that [the appellant] voluntarily instigated a settlement proposal to which Revenue acceded” (para. 47). He found that no basis had been put forward to show any entitlement to set aside the Settlement which would require “exceptional” circumstances. He considered that the appellant's own averments “are fatal to his claim from a limitation perspective” (para. 47). Those averments showed that the appellant “was not paying under a mistaken misapprehension or because the true position was concealed but rather because he did not want to risk jeopardising tax clearance”.

45. As to the criticism that Revenue had no proof that the taxes were owing, absent any evidence of bad faith, the Judge considered that that was not a basis to set aside a voluntary settlement. Moreover, “the contemporaneous documents show both parties agreed that there was a substantial tax liability” (para. 50). Having asked Revenue to settle rather than continue the 1994 audit to its conclusion, “it is not open to [the appellant]) to criticise Revenue for acceding to [his] proposal” (para. 52).

46. In addition to finding the claim clearly statute-barred and that there was no basis to extend the relevant time periods, for the reasons he set out at paras. 55-58 of the judgment the Judge also found that the case was “the sort of exceptional case in which the Court should invoke its inherent jurisdiction (also reflected in cases such as O’ Domhnaill v Merrick [1984] IR 151 and Primor) to dismiss proceedings on the basis that a fair trial was impossible - in view of the time elapsed.” The Judge’s conclusions in this regard are more fully considered later in this judgment.

47. Furthermore, the issue of the limitation period and delay apart, for the reasons he outlined at paras. 59-69, the Judge was also inclined to the view that the proceedings should be struck out on the basis that they disclosed no reasonable cause of action, amounted to an abuse of process and/or were bound to fail.

The Appeal

48. The notice of appeal advances three short grounds, as follows:

(1) The Judge erred in law and in fact in failing to properly apply the principles in Law Society of Ireland v MIBI [2017] IESC 31.

(2) The Judge erred in law and in fact in wrongly applying the O’Domhnaill v Merrick [1984] I.R. 151 principles to the case.

(3) The Judge erred in law and in fact in wrongly applying the principles in Komady Ltd v Ulster Bank Ireland Ltd [2014] IEHC 325 and European Property Fund plc & Anor v Ulster Bank [2015] IEHC 425 to the case, particularly in failing to have due regard to the 051 account.

49. By ground 1, the appellant appears to take issue with the Judge’s finding (at para. 66(c) of the judgment) that the “Payment Condition” upon which the appellant relied was not referred to in the contemporaneous communications recording the terms of the Settlement and so was not prepared to redraw the contract since the circumstances in which a court will do so are “strictly circumscribed”. The Judge held that it was “not evident …that there would be any basis to do so in this case (even if the claim was not statutebarred)”. This ground of appeal was not pursued in the appellant’s oral submissions on the appeal, his counsel instead confining his arguments to the issues raised in grounds 2 and 3.

50. Although legally represented at the time the proceedings commenced, it should be noted that the appellant was not legally represented when he delivered his statement of claim or at the hearing in the court below. Whilst also without legal representation when he filed his notice of appeal, the appellant was, however, legally represented at the appeal hearing and had the benefit of junior and senior counsel.

51. On the appeal, Revenue argued that the appellant had not appealed the findings made by the Judge regarding the allegation of fraudulent concealment. Its position was that on no construction of the grounds of appeal, the appellant’s written submissions, or his engagement with this Court at the directions hearing, could it be inferred that he was taking issue with the Judge’s rejection of his fraudulent concealment argument. It was also argued that, in any event, the appellant’s reference to fraud in the court below was in the context of bank accounts having been fraudulently opened in his name and without his knowledge such that there was a role to be played by s.71 of the Statute, although, Revenue said, the point had not been developed by the appellant in a detailed way.

52. Whilst it is the case that s. 71 was not specifically pleaded by the appellant, it will be recalled that para. 54 of the statement of claim pleads that “Revenue, wrongfully and fraudulently concealed the true facts with respect to the £501,365…”. The judgment shows that the Judge addressed the argument that Revenue had acted fraudulently by agreeing the Settlement "in the absence of a genuine belief that the appellant and the Company owed such monies". As paras. 40-44 of the judgment make clear, the issue of whether the appellant could satisfy either limb of s.71(1) of the Statute was squarely before the Judge.

53. As regards the parameters of the appeal, I consider (and bearing in mind that the appellant was unrepresented at the time of the filing of the appeal) that ground 3 of the notice of appeal just about encapsulates the “equitable fraud” argument which was canvassed on behalf of the appellant on the appeal. Therefore, I reject Revenue’s contention that the Judge’s findings on the appellant’s allegations of fraudulent concealment on the part of Revenue are not properly part of the appeal. In any event, Revenue vigorously responded to the arguments the appellant’s counsel canvassed on this issue.

54. I turn now to the argument advanced on the appeal.

55. At the outset of his oral submissions counsel for the appellant acknowledged that since the requisite time limits for any claims the appellant may have had in tort, contract deceit or undue influence had long since run, the only basis upon which he could keep his claim alive was by the Court extending the limitation period pursuant to s. 71(1) of the Statute.

56. Section 71(1) provides: “Where, in the case of an action for which a period of limitation is fixed by this Act, either –

(a) the action is based on the fraud of the defendant or his agent or of any person through whom he claims or his agent, or

(b) the right of action is concealed by the fraud of any such person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.”

The appellant rests his legal argument exclusively on the provisions of s. 71(1)(b) of the Statute.

57. As noted by Peart J. in Komady Ltd v Ulster Bank Ireland Ltd [2014] IEHC 325, the words “concealed by the fraud of any such person” in s. 71(1)(b) of the Statute “is not to be confused or elided with ‘fraud’ in the conventional or ordinary sense - which itself is provided for in s. 71(1)(a)”.

58. The question of whether there has been fraudulent concealment within the meaning of s. 71(1)(b) being a mixed question of fact and law, the approach required to be taken is that a court should be slow to dismiss a summary argument that the limitation period has been prolonged by the operation of s. 71(1) unless it is established that there is no stateable or credible basis for suggesting that any material fact has been concealed.

59. The fraud upon which the appellant relies for the purposes of s.71(1)(b) is what his counsel characterises as “equitable fraud”. In this regard, counsel points to the commentary in Canny, Limitation of Actions, 3rd ed. 2022, Round Hall on a right of action which has been “concealed by the fraud of any such person”. Whilst, counsel says, the precise ambit of what constitutes fraudulent concealment it is not entirely clear, he references the discussion by Lord Evershed in Kitchen v Royal Air Force Association [1952] 1 W.L.R. 563 (discussed in Canny) of the meaning of “fraud”:

“But it is now clear that the word fraud in [the English equivalent of s. 71], is by no means limited to common law fraud or deceit. Equally, it is clear, having regard to the decision in Beaman v ARTS Ltd that no degree of moral turpitude is necessary to establish a fraud within the section. What is covered by equitable fraud is a matter which Lord Hardwicke did not attempt to define 200 years ago, and I certainly shall not attempt to do so now, but it is, I think, clear that the phrase covers conduct which, having regard to some special relationship between the two parties concerned is an unconscionable thing for the one to do towards the other.” (p. 572)

60. In Beaman v ARTS Ltd [1949] 1 K.B. 550, the English Court of Appeal held that the defendant had fraudulently concealed its conversion of the plaintiff's goods despite the trial judge's finding that there had been no dishonesty. As stated by Lord Greene M.R.:

“A wrongdoer who chooses his opportunity so wisely and acts so warily that he can safely calculate on not being found out for many a long day, cannot claim the advantage of the limitation period”.

61. Canny refers also to King v Victor Parsons & Co. [1973] 1 W.L.R. 29 where fraudulent concealment was described by Lord Denning M.R. in the following terms:

“In order to show that he ‘concealed’ the right of action ‘by fraud’, it is not necessary to show that he took active steps to conceal his wrongdoing or breach of contract. It is sufficient that he knowingly committed and did not tell the owner anything about it. He did the wrong or committed the breach secretly. By saying nothing he kept it secret. He conceals the right of action. He conceals it by ‘fraud’ as those words had been interpreted in the cases. To this word 'knowingly' there must be added '’recklessly’”.

62. As against this, Lord Denning M.R. added:

“If however the defendant was quite unaware that he was committing a wrong or a breach of contract it would be different. So if by an honest blunder he unwittingly commits a wrong… or a breach of contract ... then he could avail himself of the statute of limitations.”

63. As noted by Haughton J. in Cantrell v Allied Irish Banks plc [2017] IEHC 254, the foregoing statements have found favour with the Irish courts although he notes Canny’s comment that the need to prove a special relationship “has proven controversial”. In any event, as again noted by Haughton J., Lord Evershed’s judgment in Kitchen v Royal Air Force Association was followed by Carroll J. in Morgan v Park Developments Ltd. [1983] I.L.R.M. 156. Similarly, at para. 54 of his judgment in Komady, Peart J. quoted Lord Denning in King v Parsons with approval.

64. Here, one of the appellant’s main complaints is that he was never given the full file of the 1994 audit. It is said that his agent only obtained the relevant file within six years of

1 October 2020, the latter date being the institution of the within proceedings, such that prior to that date the appellant did not have the necessary ingredients to launch a cause of action. This deficit came about, it is said, by reason of Revenue having concealed the appellant’s cause of action. The appellant relies especially on what his counsel described as the “passive” concealment by Revenue of a cause of action through its failure to disclose relevant facts which, it is said, amounts to conduct which engages s.71(1)(b) of the Statute.

65. The argument the appellant posits is that whilst the Judge acknowledged (at para. 34) that the limitation period could be extended by reference to s.71(1)(b), the key error in the judgment was the Judge’s failure to correctly apply the test for an extension of time pursuant to s. 71(1)(b). It is argued that the Judge used the wrong definition of fraud in stating that the appellant had to prove that Revenue was actually guilty of fraud which, counsel says, was not the correct test. The correct test, it is said, is as set out in Kitchen v Royal Airforce Association and as discussed in Canny.

66. What is posited is that for the purposes of the summary application that was before the Judge, all the appellant was required to show was that Revenue had information regarding the true owner of the funds in the 051 account and knowingly did not give that information to the appellant or his companies. According to the appellant, the existence of that information in the hands of Revenue was tantamount to Revenue’s concealment of his right of action by fraud. In other words, Revenue knew (1) that the 051 account was not in the appellant’s name (since Revenue had that account in its possession at the time of the 1994 audit), and (2) that the 051 account formed the basis of the figure which was ultimately used in the calculation of the liability that led to the Settlement, the appellant’s contention being that Mr Dalton’s assessment in 1994 of IR £590,000 as due and owing by him and the Company was based on lodgements totalling IR £591,900.58 made to the 051 account.

67. It is in those circumstances, counsel submits, that the Judge erred in assessing and forming a view on the evidence (para. 40-44 of the judgment) at the interlocutory stage rather than letting the matter proceed to trial. This was particularly so when the appellant was not in the position to make a case until he had in his possession the two pieces of information referred to above.

68. Counsel disputes any suggestion or finding that the appellant was in the same position in 1994 as he was in 2018 in circumstances where the aforementioned facts were not in his possession in 1994 and were only provided in 2018 despite such information having been requested in the period 1995 - 2001. Counsel also points to Revenue's letter of 28 September 2018 where it was acknowledged that it was normal practice for Revenue to return business records to the taxpayer after an audit had been completed, which, however, did not happen here, as indeed the letter itself acknowledged. It is said that had those records been returned post the 1994 audit they would have included the 051 account documents.

69. In essence, what the appellant contends, in aid of invoking s. 71(1)(b) of the Statute, is that Revenue suppressed information thus depriving him of facts vital to his ability to know that he had a cause of action against Revenue, and that that suppression had precluded him from initiating an action to undo a settlement which had been entered into on an improper basis.

70. It is also said that, here, there is a complex factual matrix surrounding: the discovery of the relevant bank accounts; the timelines of the Settlement; and the appellant’s request in August 2018 for access to Revenue’s files and whether that could form the basis of an application to extend the limitation period. It would, counsel submits, in those circumstances, be wrong for the reasons outlined by Haughton J. at para. 34.3 in Cantrell, for the Court to embark on the procedure of looking at all those matters at a summary stage. It is accepted, however, that it was the appellant who brought a motion looking for a declaration that the proceedings were not statute barred (in effect representing that the matter of the Statute could be tried on such basis) in response to which Revenue then brought its motion seeking to strike out the proceedings on a number of bases including that they were statute-barred.

71. The appellant’s principal arguments on the Statute may be distilled as follows:

(1) There are factual disputes regarding the timing and the meaning of the discovery of the fraud alleged by the appellant such that the appellant’s diligence in this regard should be determined at plenary hearing, not summarily.

(2) The appellant’s pleadings, whilst perhaps lacking in particularity, were sufficient at an interlocutory stage to warrant further investigation and discovery.

(3) The concept of fraudulent concealment is broad and can encompass “passive” concealment, especially if the defendant is in a position of superior knowledge, as Revenue was.

72. Revenue’s submissions focus on the fact that the Settlement came about because the appellant chose to make an offer to Revenue rather than let the 1994 audit continue. It says that what the appellant now appears to be contending for, essentially, is that Mr. Dalton (of Revenue) went on a frolic of his own in the knowledge that he could not stand over the figures he had raised, and therefore entered into the Settlement without informing the appellant of the true source (the 051 account) of the funds used to impose a liability on the appellant. That contention, however, comes up against the inconvenient fact that the offer to settle came from the appellant and/or his advisors and not Mr. Dalton, as indeed highlighted by the Judge.

73. Revenue also argues that the appellant’s emphasis in the court below was on alleged fraud by third parties and not on alleged fraud or fraudulent concealment on the part of Revenue. It submits that there is not a shred of evidence advanced by the appellant to suggest the kind of fraudulent activity on the part of Revenue that is now contended for.

74. Insofar as the appellant seeks to invoke what he describes as the concept of “equitable fraud” and roots his argument in unconscionable/inequitable conduct rather than “clear-cut” fraud, Revenue’s position is that if the appellant is seriously contending for this type of case, one would have expected to see affidavit evidence from those professionals who were advising him at the time of the 1994 audit. No such affidavit evidence was put before the court below. Moreover, the Judge’s conclusions did not lead to any application to this Court by the appellant for the purpose of setting out what his advisors would say were the matter allowed to go to trial. Nothing is said on affidavit about what the appellant's advisors knew or what documentation the appellant had sought to preserve.

75. The thrust of Revenue’s position on the appeal is the Judge carefully analysed the claim pleaded and later particularised by the appellant. It submits that all of what is now being said by the appellant was known to him prior to 1998. It emphasises that the appellant has not wavered in his complaint (from day one) that Revenue coerced him into the Settlement. Whilst the alleged coercion is forcefully denied by Revenue, the fact of the matter is that on the appellant's own case, he knew about the alleged Revenue threat to withdraw his tax clearance certificate, and of Revenue's refusal in the period 1994 -1998 to give him information which, according to the appellant, constituted a breach of the Settlement. Revenue further points out that the appellant was not unrepresented in the period 1994 -1998 as he had professional advisors.

Discussion and Decision

76. As is clear from his pleadings, the nub of the appellant’s case is that he was subject to an audit by Revenue, that the audit was unwarranted and that he was forced to settle because if he did not settle, his tax clearance certificate would be withdrawn. His saver for having been forced into the Settlement is that it was subject to what he described as a “Payment Condition”. In other words, Revenue was to give him information about what the audit had been about and what the Settlement had been about. He pleads that Revenue breached the agreement by failing to abide the Payment Condition. In his Replies to Particulars the appellant lists the number of occasions when Revenue denied him information concerning the Settlement. The occasions of such requests and denials range in date from May 1994 to July 1998.

77. Whilst the appellant’s statement of claim did not reference s. 71 of the Statute, as I have earlier observed para. 54 pleads, inter alia, that “Revenue deliberately, wrongfully and fraudulently concealed the true facts with respect to the IR £501,365” and that the appellant’s awareness that the sum paid out on foot of the Settlement was not owed came about when “part of Revenue’s file was made available for review from and after January 2015”.

78. The foregoing, in a nutshell, is the case the appellant makes in his pleadings (and on affidavit). The issue for this Court is whether the Judge was correct, at this preliminary stage, in finding that the appellant had not advanced any stateable basis upon which to argue that he was entitled to an extension of time pursuant to s.71(1)(b) of the Statute.

79. The question of whether proceedings are statute-barred is generally determined following a unitary trial of the action, but it is not unknown for a defendant to seek to have the question of whether the proceedings are statute-barred determined in advance by way of trial of a preliminary issue. Such preliminary issue falls to be determined either by reference to an agreed statement of facts or by taking the plaintiff’s pleaded case at its height.

80. Here, unusually, it was the appellant who called by way of a notice of motion dated 1 August 2023 for the matter to be determined as a preliminary issue. Nothing much turns on this, for present purposes, in my view, save to observe that it is difficult to see how the Judge can be criticised for embarking on the within preliminary hearing in circumstances where same was initiated by the appellant himself.

81. For the purpose of determining whether proceedings are statute-barred, the court must be satisfied that there is no reasonable chance that the plaintiff will be able to answer at the trial of the action the plea that the proceedings are statute-barred. Accordingly, the court must consider whether there is a reasonable possibility that evidence might be forthcoming which would support the plaintiff’s answer to the plea. Here, the appellant’s answer to the plea is that his right of action was fraudulently concealed by Revenue.

82. There being no agreed statement of facts in the present case, in accordance with Komady (para. 26) and European Property Fund plc (paras. 38-41), for the purpose of ascertaining whether or not whether the case was statute-barred the Judge was required to approach the matter through the prism of the pleaded and particularised case, and in so doing was required take the facts as pleaded and particularised as having been established. Revenue does not demur that this was what was required in this case. I am satisfied this that was the approach adopted by the Judge.

83. The Judge clearly engaged with the case both as pleaded and particularised by the appellant and with his affidavit evidence. He found, both on the pleadings and the affidavit evidence, that the appellant was “aware of sufficient facts on which to issue proceedings at the time of the Settlement or very soon thereafter” (para. 35). Specifically, he found that the appellant could have issued proceedings after July 1998 but did not do so (para. 37).

84. As we see from the judgment, the appellant’s allegations of fraud and/or fraudulent concealment on the part of Revenue were considered in depth and dismissed for the reasons set out in the judgment (see paras. 34-36, 41-45 and 54). The Judge found that the case could not be saved by s.71 of the Statute because, on the case as pleaded and from the affidavit evidence, if the appellant believed the basis for the Settlement was flawed, his advisors could have undertaken investigations at the time of the Settlement and put their analysis to Revenue (para. 44). Alternatively, once the appellant and the Company obtained the list of bank accounts from AIB in September 2014, they could have issued proceedings then or indeed even earlier. The Judge’s conclusion in this latter regard was expressed as follows:

“In summary, my conclusion that, even if the Plaintiffs had been able to particularise a basis to invoke section 71, the claim was still statute barred by the time the proceedings were issued is based on the fact that, inter alia, in 2013, the First Plaintiff and his then advisor…complained to Revenue that he had been taxed on bank accounts which had ‘nothing whatsoever’ to do with him. The Plaintiffs' own submissions' comments in that regard reinforce the conclusion that the claims are statute barred, as does the fact that the First Plaintiff's receipt of a list from his bank in September 2014 which confirmed the existence of the 051 Account, more than six years before the proceedings were issued. In my view, the Plaintiffs knew — or ought to have known — all necessary facts to commence proceedings by that point (if not considerably earlier and, indeed, soon after the Settlement was entered into). The claim is therefore statute barred on the basis of the Plaintiffs' own pleadings and the undisputed evidence.” (para. 54)

85. For the purposes of the appeal, the appellant draws a distinction between what his counsel characterised as “capital F fraud” and “equitable fraud”. Whilst the distinction that is sought to be drawn would appear, from the case law cited in Canny, to have merit, the first observation I would make is that the appellant has failed to detail what exactly he is alleging against Revenue in terms of the kind of unconscionability contemplated by Kitchen v Royal Airforce or indeed Beaman v ARTS Ltd and King v Victor Parsons & Co. All of this is in circumstances where his counsel has acknowledged that the relevant limitation periods have run thereby obliging the appellant to bring himself within s.71(1) of the Statute.

86. What is being relied on here, specifically, is s.71(1)(b). It is apposite, therefore, to interrogate that provision. It contains four elements. First there is reference to a “right of action”. Secondly, the right of action has to be “concealed”. Thirdly, the concealment must arise by “fraud”. The fourth element, as both the provision itself and the case law suggest, is that the concealment must be by someone who stands to benefit from concealing the right of action.

87. Turning, therefore, to the first element of s.71(1)(b): this begs the question, what is the “right of action” alleged to have been concealed here? If the right of action is the one articulated in the statement of claim (i.e. alleged duress in reaching the Settlement, loss suffered and a claim for the return of monies paid on foot of the Settlement and alleged breach of the “Payment Condition” ), then I accept Revenue’s argument all the facts pertinent to the commencement of such a claim were known to the appellant at least by 1994-1998 sufficient for the accrual of a cause of action (as indeed the Judge found at para. 37).

88. In any event, whatever the right of action, for the purposes of s.71(1)(b), there has to have been concealment (the second element in the provision) by fraud (the third element) on the part of Revenue. In essence, what is required is a fraudulent act or actions of concealment (even if only “passive”). That concealment must be deliberate in the sense there has to be some element of turpitude in the mischief s.71(1)(b) is directed towards. In other words, what s.71(1)(b) speaks to is the unconscionability of someone concealing a right of claim from a person otherwise entitled to pursue their cause of action.

89. The appellant's case on the appeal is that it was only in September 2018 (upon, it is said, receipt of a final tranche of information from Revenue via the 28 September 2018 letter) that he came to understand that Revenue knew at the time of the Settlement that he had no connection to the 051 account (and so could have no liability arising therefrom). In essence, what the appellant is saying is that he did not realise at the time that what was being levied by way of a tax liability in the period 1994/1995 was illegal and that Revenue did not take steps at that time, or at any time during the relevant limitation periods, to ensure that he was made aware of the true position regarding the 051 account.

90. The first thing to be observed here is that the audit commenced by Revenue in 1994 was, to borrow the words of Hogan J. in O’Dwyer v Daughters of Charity [2015] IECA

226 “openly taken”. Moreover, (and leaving aside for the moment that it was the appellant himself who precipitated the Settlement) it was an exercise in which the appellant and his professional advisors engaged in the period leading to the Settlement and in the years immediately following the conclusion of the Settlement. Even taking at its height the appellant’s pleaded case and his affidavit evidence, everything points to the fact that, in the course of that engagement, the appellant’s professional advisors had knowledge of the AIB accounts such that, if indeed the basis of Settlement was flawed as the appellant claims, the appellant’s and the Company’s and their professional advisors’ own investigations could have confirmed the position at the time. As said by the Judge: “They could have confirmed their taxable income and expenditure, etc. They could have put their analysis to Revenue if there was an issue.”

91. I concur with the view expressed by the Judge that it was “difficult to credit that the Plaintiffs and their advisors did not check the position with regard to all TSB, AIB and indeed any other bank accounts at the time of the Settlement. If they had done so, they would presumably have become aware of the 051 Account. If they failed to do so, then the Plaintiffs were in breach of their declaration to Revenue. They confirmed as part of the Settlement that they were checking details of all of the Plaintiffs' accounts. Revenue was entitled to take them at their word …” (para. 49).

92. Furthermore, insofar as the appellant contended in the court below that it was only in December 2014/January 2015 that the true position regarding the unauthorised accounts had come to light, again taking this plea at its height, I agree with the Judge that that cannot assist the appellant in circumstances where his professional advisors had the means and wherewithal at the time of the settlement negotiations to conduct all necessary investigations about the ownership of any funds standing in the relevant bank accounts. Again, as commented by the Judge:

“They proposed the Settlement in May 1994, reiterating it thereafter and finalising it in October 1995. This can only have been on the basis that, as at that time, they and their advisors believed that it was a fair reflection of the exposures, including in relation to the bank accounts. If there was any uncertainty, then the Plaintiffs could and should have undertaken the necessary investigations at the time” (para. 45).

93. It also bears repeating that on the appellant’s own account, AIB provided his then advisors with details of the 051 account in September 2014, yet no proceedings issued until

1 October 2020.

94. I note that for the purposes of determining whether the appellant could show, in seeking to invoke s.71(1), that his right of action was based on (s. 71(1)(a)) or concealed by (s. 71(1)(b)) the fraud of Revenue or its agents, the Judge cited Komady and European Property Fund plc.

95. In neither of those cases was s.71(1) successfully invoked. In Komady, the High Court (Peart J.) found that the plaintiffs had “ample facts” at their disposal in relation to the two “Swap Agreements” of which they complained for a cause of action to accrue and in order to commence an action for negligence/ negligent misstatement within the requisite timeframe.

96. In European Property Fund plc, Costello J. (as she then was) also held that the plaintiffs in those cases had not established an entitlement to an extension of time pursuant to s. 71(1)(b) of the Statute, stating that in order to rely on s. 71(1)(b), the onus was on them to satisfy the court: “(a) that the cause of action had been concealed; and (b) the date the plaintiff discovered the fraud; and (c) the date the plaintiff with reasonable diligence could have discovered the fraud”. Costello J. went on to find that the acts and omissions alleged by the plaintiffs were not capable of constituting concealment by fraud within the meaning of s. 71(1)(b) on the part of Ulster Bank of the plaintiffs’ right of action. She was not satisfied that European Property Fund had established “that the date it could have discovered the alleged fraud exercising reasonable diligence was later than 20th June, 2008, and therefore within the six years limitation period”.

97. The appellant submitted that the present case may be distinguished from Komady and European Property Fund plc on the basis that, as far as the within proceedings are concerned, he did not have enough information to make a case earlier than he did by reason of the fact that the 051 account was not in his name, and the fact that he only became aware of Revenue’s reliance on the 051 account to calculate his tax liability after the expiration of the limitation period. However, in circumstances where for the reasons already set out and those set out below I am satisfied that the appellant has failed to satisfy the requirements of s. 71(1)(b) of the Statute, he has no basis upon which to distinguish his case from the outcome of the proceedings in Komady or European Property Fund plc.

98. Turning again to the case advanced by the appellant in the court below: I agree with Revenue’s argument that on the appellant's pleaded case he had no reason to have to start identifying Revenue officers who allegedly fraudulently concealed his right of action. This is because his right of action was known to him since at least 1998. That right was based on his having entered into a contract of settlement that was allegedly forced on him, and which Revenue breached by failing to abide the Payment Condition. In those circumstances, no issue of concealment can be said to arise.

99. It is only when an attempt is made to “shoehorn” the pleaded claim into s.71(1)(b) of the Statute that the element of fraudulent concealment of a right of action rears its head.

100. As I have referred to previously, the “right of action” alleged to have been concealed by Revenue (if it is the case that it differs from the action already commenced) requires to be identified by the appellant for the purposes of invoking s. 71(1)(b). What is now being emphasised by the appellant is that no liability to tax ever arose because the funds upon which the tax liability was said to arise were never his or the Company’s and that Revenue computed his and the Company’s tax liability on the basis of those funds in the knowledge that the funds were not those of the appellant or the Company. But, again, I point to the scenario which on his pleaded case must have been apparent to the appellant by at least 1998, namely that the Settlement monies were (allegedly) not owing to Revenue by dint of the latter’s failure to abide the Payment Condition (in other words the breach of the Settlement that he alleges in his pleadings). This also holds true for the case that the appellant was not the owner of the monies in the 051 account and so should not have been levied with a tax liability based on that account. That case was entirely capable of being ascertained by the appellant’s tax advisors in the period 1994-1995 with reasonable diligence had they conducted an investigation of the TSB and the AIB accounts at that time, as indeed they intimated to Revenue they were doing.

101. Even taking at its height that everything that was said in the court below (as reprised by the Judge at paras. 40-44), and what was said in this Court, encapsulates the unconscionability for which the appellant contends on the appeal, he has not persuaded me that the requirements of s.71(1)(b) are met in this case. The mischief which s.71(1)(b) addresses is clear. It is to ensure that a person cannot benefit by using fraudulent means to conceal a right of action.

102. To get to the gates of what the appellant is asserting, at the very least, he has to point to a specific officer or officers within Revenue and say that such person or persons knew he had a claim and took steps (or otherwise omitted to take steps, for example by staying silent) the effect of which was to conceal the appellant’s cause of action. The appellant is required to say that a particular officer or officers knew all the facts and knew something that should have been communicated to the appellant but chose not to do so with the objective of concealing a right of action.

103. On the issue of concealment, the appellant has not come anywhere the obligation on him in this regard. Indeed, the Judge observed, there is not a scintilla of evidence referable to the fraudulent concealment being contended for here in the appellant’s affidavits or in the pleaded claim. Nor has any such evidence been manifested by way of any application to this Court to admit evidence that might have come into the appellant’s possession since the delivery of the judgment, and which was not open to him to obtain prior to the hearing in the court below.

104. I note that in responding to the appellant’s claim that once his tax advisors reviewed the 1994/1995 audit file in 2015 “it became clear…that the IR £501, 365…were in and/or had passed through” the four unauthorised accounts or other “bogus” non-resident accounts, Mr. Kennedy of Revenue deposes in his replying affidavit that “[n]o details are given of the findings of [the appellant’s] advisors, nor is there any explanation why proceedings were not commenced at that stage”. Hence, even if it could be said (and it cannot for the reasons already set out) that it was only in 2015 that the appellant and his advisors’ “reasonable diligence” yielded fruit, there is no explanation at all from the appellant why it took another five years to institute the within proceedings.

105. Howsoever the concept of “fraud” in s. 71(1)(b) is articulated/characterised, one cannot get around the obligation on the appellant to squarely identify what it is that is being alleged and against whom, even if what is being alleged is “equitable fraud”. That has not been done here, in my view, accepting as I do that all that is required of the appellant, in order to forestall the dismissal of his proceedings as statute-barred at this preliminary stage, is that he show a stateable or credible basis on which to do so. The appellant, however, has not surmounted that low threshold.

106. In effect, what the appellant is asking the Court to do is to draw from the accumulated information obtained between December 2014/January 2015 and September 2018 certain inferences in relation to what was going on in 1994 -1996, without any effort on his part to stand over the case he is now attempting to make by reference to the pleadings or affidavit evidence before the Court, or even by way of an application seeking liberty for additional evidence to be adduced. Absent the appellant pointing to some element of the pleaded case or the affidavit evidence which is capable of raising such inferences (and I do not find that to be the case), what he now argues for is entirely impermissible, particularly so when he and/or his professional advisors could with reasonable diligence have checked out the position regarding the 051 account and the other unauthorised or “bogus” accounts within the relevant statutory timeframes. As I have earlier remarked, even when the appellant received details of the so-called unauthorised and bogus accounts from AIB in September 2014, proceedings were not filed until 1 October 2020.

107. It is also worth observing that much of what was said in the course of the appeal hearing, in aid of the reliance being placed on s. 71(1)(b) of the Statute, was in fact more apposite to s. 71(1)(a) inasmuch as it was contended on appeal that the Settlement was arrived at on a fraudulent basis. I hasten to add however that counsel for the appellant was at pains to emphasise that the appellant’s appeal arguments were founded on s. 71(1)(b), and not s. 71(1)(a).

108. The arguments the appellant canvassed on the appeal were directed to the Court taking a view that the issue of the Statute should not have been determined summarily by the Judge and was best left to the trial of the action. At the risk of repetition, for the reasons already set out above, the appellant has not established a stateable basis for his claim of fraudulent concealment by Revenue of his right of action, much less any stateable basis for allowing the issue of the Statute to be argued at a full trial of the action. Insofar as counsel for the appellant premised his argument that the issue of the Statute should be left to the trial of the action by reference to a statement made by Revenue in its letter of 28 September 2018 that some elements of the file had not been provided to the appellant on grounds of public privilege, in my view, a claim to public privilege does not raise an issue of turpitude on the part of Revenue (as indeed acknowledged by counsel for the appellant). Accordingly, in the absence of any stateable basis for the allegation of fraudulent concealment having been advanced in this case, counsel’s criticism of Revenue’s recourse to public privilege cannot, absent more, be considered a basis upon which the Statute issue should be left to the full trial.

109. In the course of his oral submissions, the appellant’s counsel adverted to personal circumstances pertaining to the appellant which, it was contended, lent themselves to the Court taking a more generous approach to the application of the limitation period given that the policy underlying the test at s. 71(1)(b) is to prevent a defendant from profiting from their own concealment. Hence, he said, the interests of justice may require that a claim can proceed to trial where there is a credible allegation of concealment.

110. As a matter of general principle, the Court should be slow to strike out a claim where the facts are disputed and where the case is not manifestly unreasonable. As Haughton J. observed in Cantrell v Allied Irish Banks plc [2017] IEHC 254 (at paras. 34.2 and 34.3), where what is at issue is “equitable fraud” in the sense discussed in Kitchen v Royal Air Force Association and King v Victor Parsons & Co “the court should not attempt to decide this issue as part of a preliminary trial”. At para. 34.11, he opined that “it is only with a full hearing that the court could decide whether there was such conscious or deliberate acts, or non-disclosure, as could amount to fraudulent concealment”.

111. Whilst I agree that the Court should, for all the reasons Haughton J. sets out in Cantrell, be slow to determine a Statute issue by way of a preliminary application, that cannot mean that there are no cases where it is appropriate to do so. Given the factual matrix in this case (which contrary to the appellant’s submission was not complex), in order to stave off such a determination, the appellant was required, at a minimum, to put forward a stateable or credible basis for the fraudulent concealment being contended for here. However, he has not gotten off the ground in this regard for the reasons I have already set out. I am also of the view that the personal matters upon which the appellant relies cannot avail him in circumstances where, at all relevant times, he had professional advisors to advise and guide him.

112. In conclusion, I should also add that as the appellant has not persuaded me of the “unconscionability” on the part of Revenue contended for on the appeal, I did not find it necessary to embark on a discussion as to whether a special relationship is required before the unconscionability or “equitable fraud” envisaged by s. 71(1)(b) can be invoked, having been prepared, purely for the purposes of the arguments advanced on the appeal, to assume the existence of such a relationship.

113. For the reasons set out above, I would uphold the Judge’s decision that the within proceedings are statute-barred.

Striking out the proceedings on the “unfair trial” ground

114. It will be recalled that even if the appellant’s claim had not been statute-barred, the Judge nevertheless considered that “it was the sort of exceptional case” in which the court should invoke its inherent jurisdiction to dismiss the proceedings on the basis that there was a real or serious risk that a fair trial was not possible (O’Domhnaill v Merrick [1984] I.R. 152 refers). He noted that at least one key witness - the Revenue Officer (Mr. Dalton) who conducted the 1994/1995 audithad died and that other witnesses on both sides would presumably have retired in the ordinary course of events and may no longer be available to testify. Whilst such prejudice could be avoided in certain cases which might be “document cases” and thus less dependent on oral testimony, here, the appellant was advancing pleas (for example the existence of the “Payment Condition”) which were not reflected in contemporaneous documents but rather based on “belatedly asserted alleged representations on Revenue’s part, representations supposedly made over a quarter of a century ago”.

115. The Judge considered that the potential prejudice to Revenue was actually demonstrated by the appellant’s own objection to the Revenue deponent (Mr. Kennedy) in respect of the motions before the court on the basis that he lacked “detailed knowledge of the case”. As such, the Judge considered that “it would be invidious and unfair for the Plaintiffs to be allowed advance such broad, serious and unparticularised claims of misrepresentation or fraud so many years after the event in circumstances in which Revenue would be prejudiced in its inability to respond.”

116. Ground 2 of the notice of appeal addresses this aspect of the judgment. In his written submissions, the appellant asserts that the invoking of the O’Domhnaill v Merrick jurisdiction was not warranted in this “exceptional” case “on the basis that a fair trial is possible, given the witnesses and documents available”. Whilst acknowledging that Mr. Dalton, who conducted the 1994-1995 audit, had died, the appellant submits that the late Mr. Dalton has left behind a detailed paper trail of his involvement capable of being relied on at trial, and that others were also involved in the audit. It is said that it was “purely speculation” on the part of the Judge as to whether the other witnesses had retired. In oral submissions, counsel for the appellant pointed to Revenue’s failure to say that either the lack of availability of witnesses or the fact of Mr. Dalton’s death “was going to in some way hinder the ability of the Court to come to a conclusion”. He emphasised Revenue’s failure to state, on affidavit, that it could not go ahead with the case because witnesses were unavailable and its failure to identify necessary witnesses who were no longer available and why their testimony was relevant.

117. Whilst it is the case that Mr. Kennedy’s replying affidavit makes no reference to Revenue’s inability to advance its case because of the death or unavailability of witnesses, I note that as long ago as September 2018, the appellant was advised (in the 28 September 2018 letter exhibited in Mr. Kennedy’s affidavit) that a number of the officers involved in the 1994-1995 audit had retired and were unavailable to Mr. Kennedy for the purpose of the review he had carried out in September 2018. It is not in issue that the person who conducted the audit (Mr. Dalton) has passed away. Moreover, I note that at para. 30 of its defence, Revenue pleads that the appellant and the Company were “guilty of inordinate and inexcusable delay in commencing proceedings 25 years after the matters complained of, which delay is grossly prejudicial of the defendants…”.

118. To my mind, in all the circumstances of this case, the Judge was well within the limits of his inherent jurisdiction and discretion in concluding that Revenue would, because of the passage of time, be prejudiced in its ability to respond to the appellant’s claims, and that that prejudice was “greatly increased by Mr. Dalton’s death”. As recognised by the Judge, Mr. Dalton’s significance was “demonstrated by the fact that he is personally referenced in the Statement of Claim on at least 22 occasions…”. Moreover, the integrity of Mr. Dalton’s actions appeared to be “the primary focus of the Plaintiffs’ claim”. It is also the case that many of the appellant’s claims (including the “Payment Condition” and that his advisor visited AIB in the company of a Revenue official) are not reflected in any contemporaneous document, which means that prospective witnesses will be asked to recall at a trial the fine detail of matters alleged to have occurred more than 30 years ago.

119. I concur with the Judge’s view that it would be extremely unfair to Revenue to allow the proceedings to proceed in such circumstances. I also agree with the Judge that this is all the more so where there has been no evidence from the appellant that he has obtained testimony from the professionals who advised him and the Company at the time of the 1994 audit. It is also the case that the appellant’s professional advisors are no more, the firm in question having been subsumed into Price Waterhouse Coopers. Whilst, as indeed noted by the Judge, this latter factor could make it difficult for the appellant to pursue his claim, the Judge was undoubtedly correct when he stated that “there must also be a grave concern that the Defendants’ ability to obtain a fair trial by demonstrating the extent to which the Plaintiffs and their [advisors] were contemporaneously aware of the points which, according to the Plaintiffs, only emerged two decades later”.

120. In summary, I find that the appellant has failed to identify any error of law on the part of the Judge in his application of the O’Domhnaill v Merrick principles.

A strike out on the basis that the claim discloses no reasonable cause of action, amounts to an abuse of process or is bound to fail

121. At para. 59 of the judgment, the Judge opined that although his decision to strike out the proceedings was made primarily on the basis that the claim was statute-barred, he “would have been inclined to dismiss the proceedings, in any event, on the basis that the claim discloses no reasonable cause of action, amounts to an abuse of process, is bound to fail, or has no reasonable chance of succeeding”. The Judge then went on (at paras. 59-69) to ground his conclusions in this regard.

122. As the notice of appeal does not address this part of the judgment, I do not propose to comment further on the Judge’s analysis in this regard.

Summary

123. For all the reasons set out above, I would dismiss the appeal.

Costs

124. As the appellant has been unsuccessful in his appeal, it would seem to follow that Revenue should be awarded its costs. If, however, either party wishes to seek some different costs order to that proposed they should so indicate to the Court of Appeal Office within 28 days of the receipt of the electronic delivery of this judgment, and a short costs hearing will be scheduled, if necessary. If no indication is received within the 28-day period, the order of the Court, including the proposed costs order, will be drawn and perfected.

125. As this judgment is being delivered electronically, Hyland J. and Collins J. have indicated their agreement therewith and the orders I have proposed.