The Gazette 1993

GAZETTE

NOVEMBER 1993

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B H i r a f W f i p r m ™ h r r ni i 1 H I

By Dr. Eamonn Hall

the plaintiff, provided that the said payment, if not accepted by the plaintiff, shall not take effect until the expiry of two months from the date upon which it was made or increased, as the case may be. In relation to discovery, Order 31, rule 12, there is a new sub-rule 4 to the effect that an order under sub-rule 1 directing any party to make discovery shall not be made unless (a) the applicant for same shall have previously applied by letter in writing requesting that discovery be made voluntarily; and (b) a reasonable period of time for such discovery has been allowed; and (c) the party or person requested has failed, refused or neglected to make such discovery or has ignored such request. However, there is a proviso that in any case where by reason of the urgency of the matter or the consent of the parties, the nature of the case or any other circumstances which to the Court may seem appropriate, the Court may make such order as appears proper, without the necessity for such prior application in writing. There are also other provisions relating to discovery. Sub-rule 4(4) of Order 31, rule 12, provides that an application for discovery whether under rule 12(1) or (4) shall be made not later than 28 days after the action has been set down or in matters which are not set down 28 days after it has been listed for trial, provided that the Court or the party requested may order or agree, as the case may be, to extend the time for the application for discovery in any case in which it appears just and reasonable to do so. Sub-rule 5 provides that the costs of an application to court for discovery in any case in which prior written

application has not been made or in which application has not been made within the time provided, shall be in the discretion of the Court.

Rules of The Superior Courts Amended

The Rules of the Superior Courts have recently been amended. These amendments have important ramifications for legal practitioners. The Rules of the Superior Courts (S.I. No. 265 of 1993), [(Pn0227) price £1.60 with postage 48p, Government Publications, Sales Office, Molesworth Street, Dublin 2] came into effect on September 9, 1993 and amended some of the existing provisions regarding payment into court, discovery, applications for payment out of infants' funds, voluntary winding-up of companies, time for certain steps in the Court of Criminal Appeal and taxation of costs and insert a new Order 127 relating to the applications for appointment as a Notary Public. Order 22, rule 1, now has additional sub-rules 9 and 10 to the effect that where the plaintiff has served a notice of replies to particulars or additional particulars (without a request therefor), after the expiry of the time within which the defendant could make a payment into court without leave, the defendant may, thereupon, without leave, make a payment or increase any payment into Court within 21 days from the date thereof upon notice to the plaintiff. "The Rules of the Superior Courts have recently been amended. These amendments have important ramifications for practitioners." Sub-rule 10 provides that in any case in which a period in excess of 18 months has elapsed since the date of the notice for trial, a defendant may, without leave, make a payment into I Court within 21 days, upon notice to

Constitutional Challenge to Withholding Tax Credits

A case is pending in the High Court in which the plaintiff, a barrister, has sued the Revenue Commissioners, the Minister for Justice, Ireland and the Attorney General, challenging the constitutionality of the Finance Acts regarding the application of withholding tax credits in the year in which they are deducted. The plaintiff barrister is a person in receipt of a professional fee income from the second-named defendant and other accountable persons and argues that he is entitled to set-off the appropriate tax suffered against his The plaintiff contends that the basic period of assessment for the tax year would be the accounting period ended in the preceding tax year but for the amending legislation contained in the Finance Act, 1990, which results in the preceding year being the credit period for the tax year. The professional fees received by the plaintiff are received on a cash receipts basis. The plaintiff contends that the statutory effect of the provisions at chapter III of the Finance Act, 1987, as amended by section 26 of the Finance Act, 1990, results in the plaintiff being deprived of the benefit and unable to obtain a set-off of the appropriate tax suffered against his established Income Tax liabilities for the relevant year of assessment. The plaintiff is accountable for payment of his total Income Tax liability on established tax liabilities in the relevant years of assessment.

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