363 / 462
GAZETTE
W B
NOVEMBER 1993
1
A
-Wrrl^^
B H i r a f W f i
p r m ™ h r r ni i 1 H I
i
m
By
Dr. Eamonn Hall
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
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.
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
established tax liabilities in the
relevant years of assessment.
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
341