APPROVED NO REDACTIONS NEEDED THE COURT OF APPEAL CIVIL Appeal No: 2025 149 Neutral Citation Number [2026] IECA 89 Pilkington J. O’Moore J. McDonald J. IN THE MATTER OF A CASE STATED PURSUANT TO SECTION 949AQ OF THE TAXES CONSOLIDATION ACT 1997, AS AMENDED BETWEEN: GUNTER FALKENTHAL APPELLANT AND THE REVENUE COMMISSIONERS RESPONDENT JUDGMENT (on costs) of Mr. Justice McDonald delivered on 18th May 2026
- This judgment addresses the costs of this appeal. The merits of the appeal have previously been addressed in the substantive judgment delivered on 20th March 1 2026 ([2026] IECA 41). This judgment should be read in conjunction with the substantive judgment. The same abbreviations will be used here as appear in that judgment.
- For all of the reasons discussed in the substantive judgment, the appellants’ appeal was dismissed and the order of the High Court was affirmed. Bearing in mind the provisions of s. 169
(1)of the Legal Services Regulation Act 2015 (“the 2015 Act”), the Court expressed the view, in para. 92 of the substantive judgment, that the Revenue Commissioners are presumptively entitled to their costs of the appeal and that, if the appellant wished to canvass for a different order as to costs, he was at liberty to deliver a short written submission in support of his case.
- The appellant subsequently delivered a short written submission on 2nd April
- Much of that submission was addressed to the delay which attended the progress of the applicant’s appeal against the notice of opinion dated 12th November 1998 (issued under s. 811 of the 1997 Act) and his subsequent attempt to appeal the decision of the Appeal Commissioners refusing to entertain his appeal against the amended notice of assessment issued on 29th May
- In my view, these delays are of no relevance to the issue of the costs of this appeal. The issue of delay was not raised by the parties. It was the subject of comment by the Court in the course of the substantive judgment. The delay was so protracted that the Court felt constrained to draw attention to it.
- In the appellant’s submission on costs, an unsubstantiated suggestion is made that, as a consequence of the delay, the appellant was “faced with being unable to advance their case with all of the available facts to hand”. Without identifying any factual basis to support it, the appellant also asserts that: “Put simply, if this matter was dealt with expeditiously the Appellant may not have had to have taken the 2 necessary steps including bringing the matter to the High Court and to this Honourable Court and then suffered the further penalisation of a costs award against him.”
- No such suggestions were made in the course of the hearing of this appeal. It is important to keep in mind that the appellant was a party at all stages of the processes which he had, himself, initiated. He was therefore intimately familiar with all of the facts and, as appellant, he was also in a position to seek to expedite the process. Furthermore, there is nothing in the materials before the Court which suggests that he expressed any significant concern about delay in the course of this very protracted process. Likewise, there is nothing to suggest that he would not have pursued the matter if it had been addressed more expeditiously.
- Crucially, the issues which arose in this appeal were legal in nature. There is nothing in the appellant’s submissions on costs which in any way explains why he was at a disadvantage in presenting his case. The furthest he goes in that context is a suggestion that “the appeal of [the] Circuit Court decision was not available to this Honourable Court and, we say, this had the potential impact of prejudicing the Appellant.” This is a reference to the appellant’s appeal to the High Court in 2010 from the decision of Judge Matthews upholding the validity of the s. 811 notice of opinion. As he was the appellant in that appeal, it was up to him, if he thought that any element of the appeal was relevant to the issues then in play, to place the material relating to it before the Appeal Commissioners at the subsequent hearing before them which commenced in December 2013 in relation to the amended notice of assessment. As noted in para. 11 of the substantive judgment, a hearing took place before the Appeal Commissioners on 20th December 2013 at which both parties were represented by counsel. In so far as facts were relevant, the Appeal 3 Commissioners were the fact finding body in this case and the appellant had the opportunity to present any evidence that may have been relevant to the legal issue which fell to be determined.
- All of that said, it is impossible to see how the appeal to the High Court in 2010 could have any relevance to the legal issues in this appeal. As noted in para. 9 of the substantive judgment, the High Court appeal was due to be heard on 16th October 2012 but, on that morning, the appellant entered into a settlement with the Revenue Commissioners under which his appeal was withdrawn and he agreed to be bound by the decision of Judge Matthews.
- For all of these reasons, I believe that the appellant is mistaken in seeking to rely on delay as a basis for resisting an order for costs against him. I am of the same view in relation to the next ground advanced by the appellant, namely “lack of clarity”. This relates to the fact that the amount claimed in the amended notice of assessment is less than the amount identified in the s. 811 notice of opinion. That discrepancy was not explained by the Revenue Commissioners but, for the reasons explained in para. 40 of the substantive judgment, the issue was not raised in the appellant’s notice of appeal and the Court took the view that it could not therefore be pursued in this appeal. The discrepancy in amount did not affect the legal issues which fell to be determined. Besides, as the appellant correctly acknowledges in his submissions on costs, the discrepancy was in the appellant’s favour.
- Finally, the appellant submits that there was a public interest dimension to the case. He suggests that, given that there are a number of other taxpayers potentially impacted by the decision and that the decision has precedential effect, the appeal qualifies as a matter of public interest. It is also submitted that “the clarity” provided by the decision will ultimately assist the Revenue Commissioners in the 4 long term. In addition – and irrespective of the existence of these other taxpayers – it is suggested that any matter in which clarity can be brought to the application of the law by the Revenue Commissioners is one in which “public interest is at the fore.”
- In my view, this ground must also be rejected. The appellant could not be said to have taken the case to advance a public concern. There is nothing in the papers to suggest that the appellant was doing anything other than advancing the private interests of himself and the other taxpayers who were the subject of the settlement in 2012 of the previous appeal to the High Court. Furthermore, as the Revenue Commissioners observe in their submissions on costs, there are only a relatively small number of taxpayers who are affected by the decision. The decision cannot be said to have systemic importance particularly in circumstances where the relevant statutory provisions have either been repealed or significantly amended since the s. 811 notice was issued in this case.
- Accordingly, I am of the view that there are no countervailing circumstances in this case to displace the presumptive position under s. 169 of the 2015 Act that costs should be awarded to the party who has entirely succeeded in the appeal. It follows that the Revenue Commissioners are entitled to an order for the costs of the appeal against the appellant, such costs to be adjudicated in default of appearance.
- Pilkington and O’Moore JJ agree with this judgment and the order for costs. 5