APPROVED [2026] IEHC 333 THE HIGH COURT REVENUE 2023 351 R BETWEEN JOSEPH HOWLEY PLAINTIFF AND GERARD BYRNE DEFENDANT Judgment of Mr. Justice Garrett Simons delivered ex tempore on 14 April 2026
- This matter comes before the court by way of an application for summary judgment. The proceedings were issued in the form of a summary summons, and a motion was then issued seeking to enter judgment against the defendant in the sum of €397,532.
- In broad outline, the proceedings take the form of the enforcement of a revenue debt. One of the issues which ordinarily arises for determination in an application of this type is whether the income tax assessments have become “final and conclusive”. If so, then the (alleged) invalidity of the assessments cannot be raised as a defence to summary proceedings. A party who is aggrieved 2 by an assessment has two remedies open to them in principle: first, they can take an appeal to the Tax Appeals Commission; second, they can bring judicial review, depending on the precise type of error alleged.
- The Court of Appeal has put the position as follows in Gladney v. Taglienti [2021] IECA 300 (at paragraph 100): “[…] the relevant statutory codes in issue here, by precluding a challenge to an assessment which has been deemed ‘final and conclusive’, have eliminated a certain defence that might otherwise have been available to the appellants in the within applications for summary judgment, that, however, has not been done in a vacuum. The bar to being able to challenge the assessments at enforcement stage arises in circumstances where the self-same statutory codes make extensive provision for a statutory appeal to the TAC from the assessments, and thereafter make provision for an appeal on a point of law to the High Court, with a further right of appeal to this Court. […]”
- That is the ordinary background to this type of case. It is critical, therefore, that the court knows the basis upon which the summary judgment is being sought. It can, for example, be on the basis of tax returns that have actually been filed by a taxpayer and not paid. Alternatively, it can be on the basis of amended assessments, whereby an official within the Revenue Commissioners has raised an assessment or revised assessment and that has not been appealed or subject to judicial review within time. That is the basic proof required for an application of this type.
- For reasons which have not been explained to the court, there is a direct conflict of fact on the Revenue Commissioners’ own evidence. On the one hand, the original deponent tells the court that the summary summons proceedings are being pursued on the basis of returns filed for income tax for the years 2008, 2009, 2010 and
- On the other hand, in a separate affidavit, another 3 deponent says that, in fact, the summary summons proceedings arise from notices of amended assessment.
- A third affidavit on behalf of the Revenue Commissioners has been filed late in the day, on 8 April 2026, outside the time-limit directed by my colleague Ms. Justice Gearty. This affidavit baldly recites the irreconcilable conflict of evidence as follows: “I say that at paragraph 5 of the Affidavit of Gerard Curtin of the 5th day of September 2024, Gerard Curtin referred to a review of Income Tax Returns filed for 2008, 2009, 2010 and 2011 and an Assessment for Income Tax for
- I say and am advised that these documents were reviewed, however, the Defendant’s tax liability does not arise on foot of these documents. I say that as averred to by my colleague, Sinead Long (at paragraph 3 of her Affidavit of the 14th day of May 2025), the Defendant’s tax liability arises on foot of Notices of Amended Assessments.”
- The one thing that has not happened is the filing of a corrective affidavit by the deponent who filed the verifying affidavit on 5 September 2024, Mr. Gerard Curtin. That is most unsatisfactory.
- Accordingly, as matters currently stand, the Revenue Commissioners are seeking summary judgment—that is, to have the proceedings heard and determined on a peremptory basis, without the benefit of an exchange of pleadings or without the benefit of oral evidence—on the basis of an affidavit which it now accepts is factually incorrect. No corrective affidavit has been filed, nor has there been an apology offered by Mr. Curtin. No explanation has been offered to the court as to why this is so. This is not a situation where the deponent has passed away; nor is he retired, ill, or otherwise indisposed. It is not even a case where the deponent has changed jobs, in the sense of leaving the organisation. I am told that Mr. Curtin remains employed within the Revenue Commissioners, albeit in a different division. 4
- Accordingly, a most unsatisfactory position has arisen, whereby the court is confronted with contradictory evidence from the Revenue Commissioners. The conflict is not a minor inconsistency. Rather, it goes to the very legal basis of the claim: whether the sum sued for represents the taxpayer’s own selfassessment as per returns filed by him, or, alternatively, an imposed liability under amended assessments made by a Revenue official. These are conceptually and procedurally distinct routes to enforcement, engaging different proofs and different statutory provisions. The court cannot determine an application for summary judgment without knowing which route is being pursued.
- In those circumstances, I am going to strike out the proceedings on the basis that they constitute an abuse of process. The summary summons procedure is only intended to deal with cases that are clear-cut, where there is no need for oral evidence and no need for pleadings. It puts a plaintiff in a very privileged position, in that they are entitled to a fast-track hearing of their case, without the necessity for oral evidence, without the necessity for pleadings, and without the possibility of discovery. It is an abuse of process for a party to invoke that procedure on the basis of evidence which is incorrect.
- As previously stated, no explanation has been provided to the court as to how this conflict in the evidence arose, nor has any apology been offered by any of the deponents. In those circumstances, I am satisfied that it is an abuse of the court’s process to proceed by way of summary summons seeking a peremptory judgment against the defendant. The court must protect its own process. The summary summons procedure confers a privilege on the plaintiff. If a plaintiff invokes that procedure on a false premise, and then fails to explain how that happened, this is an abuse of process. 5
- I accept, at the level of principle, that there may be cases in which a genuine error is made. However, that is not an excuse for parties to leave such errors hanging and unaddressed. This court cannot resolve proceedings on the basis of contradictory evidence from the Revenue Commissioners. It is an abuse of process for the plaintiff to proceed in the way that it did, and to offer no explanation or apology on affidavit.
- This criticism is not directed at counsel: it is a criticism of the principal, the Revenue Commissioners. Their position is simply unacceptable, and the court must protect its own process. It would be a recipe for chaos if a party were permitted to invoke the summary summons procedure on a false premise, without consequence. With regret, I have to say that this is what has happened in the present case.
- Therefore, I am going to invoke the court’s inherent jurisdiction to strike out these proceedings as an abuse of process. It is imperative to the integrity of the summary summons procedure that the court mark its disapproval of litigation conduct whereby a party unapologetically abuses that procedure. APPROVED 22 MAY 2026