Supreme Court dismisses car dealer’s appeal against €4.9m Revenue judgment

The Supreme Court has dismissed a car dealer's appeal against an unprecedented summary judgment order made 10 years ago requiring him to pay Revenue almost €4.9 million arising from unpaid VAT and interest. In seeking judgment against John Alex Kane in 2009, Revenue said it had decided to apply to the Commercial Court because of the "very substantial liability" due and because that court could make orders resulting in "effective collection" of the unpaid tax.

Mr Justice Peter Kelly, now president of the High Court, ruled Revenue was entitled to summary judgment as sought, plus costs.

Mr Kane has been before the courts many times since concerning efforts by Revenue to recover under the judgment. Earlier this week, he was warned by Mr Justice Kelly he may be jailed for an alleged further breach, which he denies, of undertakings not to interfere with efforts of a Revenue-appointed receiver to recover under the judgment.

The judge previously noted the “torturous and tiresome” litigation concerning Mr Kane was supposed to have been brought to an end with undertakings given as part of a November 2018 agreement between Mr Kane and Revenue. That agreement provided the receiver, Myles Kirby, will not pursue possession of Mr Kane’s family home if Mr Kane pays €450,000 to Revenue. Mr Kane has made various payments as agreed and is to make a final payment of €120,000 this month.

He represented himself in the Supreme Court on Thursday to appeal against the July 2009 summary judgment order.

He said he is a married father of four children, three of whom are dependant on him, and has no money for lawyers. He said he had worked all his life and, while “not blameless” in this matter, there were “two sides to every story”. He wanted the matter brought to a conclusion, having paid “more than my dues personally and financially over the last 15 years”.

Submissions

Among various submissions, he argued he does not owe the sums alleged and that a solicitor previously instructed by him had failed to take the necessary steps required to appeal the assessments raised by Revenue and had withdrawn an appeal without instructions to do so.

The solicitor, who is not a party to the case, had previously rejected those criticisms.

In exchanges with the court, Mr Kane agreed he has not taken any proceedings against the solicitor. John Donnelly SC, for Revenue, argued Mr Kane had advanced no grounds to set aside the 2009 judgment and also noted the judgment has since been compromised on terms.

Mr Justice Donal O'Donnell, Mr Justice John MacMenamin and Mr Justice Peter Charleton, after retiring to consider the submissions, dismissed the appeal.

Mr Justice O’Donnell said Mr Justice Kelly’s conclusion that Mr Kane had advanced no arguable defence to Revenue’s claim was “entirely correct as a matter of law”.

He upheld findings including that Mr Kane’s admitted failure to provide information sought by an appeal commissioner placed him in the same position as if no notice of appeal had been given and, therefore, the tax assessments were final and conclusive. He also agreed the solicitor’s letter withdrawing Mr Kane’s appeal meant there was then a written agreement the assessments should stand. Any arrangement since between Mr Kane and Revenue is not a matter for the court, he added. When asked to respond to Revenue’s application for costs of the appeal, Mr Kane said: “I won’t be paying it because I haven’t got it. I don’t owe Revenue the money.” The court ruled Revenue was entitled to its costs.