AN CHÚIRT ACHOMHAIRC
THE COURT OF APPEAL
APPROVED – NO REDACTION NEEDED
Court of Appeal Record Number: 2025/58
High Court Record Number: 2021/500 JR
Neutral Citation Number: [2026] IECA 19
Whelan J.
Pilkington J.
Collins J.
BETWEEN/
BARTH O’NEILL
APPLICANT/APPELLANT
- AND -
THE REVENUE COMMISSIONERS
RESPONDENT
JUDGMENT of the Court delivered (ex tempore) on the 26th day of
January 2026
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COLLINS J.
I. Background to the Appeal
1. This is an appeal against the judgments of the High Court (Bradley
J.) delivered on 31 May and 22 October 2024, and the order of 4 February
2025, as amended by order dated 24 February 2025, made pursuant
thereto, by which the High Court refused the appellant’s applications for
orders that proceedings entitled ‘The High Court 2021 500 JR between
Barth O’Neill applicant and the Revenue Commissioners respondent’ (a)
be heard otherwise than in public or in camera and (b) be anonymised.
2. On 31 May 2021 the appellant obtained leave of the High Court
(O’Moore J.) to seek a number of reliefs by way of judicial review as
against the respondent. The proceedings have their origin in a dispute
surrounding the appellant’s capital gains tax return for 2007. That
dispute was settled with the respondent on or about 13 June 2016. A
subsequent dispute between the parties as to the terms of that agreement
was compromised by a written agreement of 27 October 2020. Under
these settlements, the respondent agreed to write out certain balances of
income tax and capital gains tax as uncollectable.
3. On 23 November 2020, the appellant wrote to the respondent to the
effect that his 2007 liabilities to income tax and capital gains tax ‘no
longer exist’ and requested that the respondent’s records be updated to
reflect that position. The respondent declined to accede to that request.
On 9 December 2020, the appellant wrote an e-mail to the respondent in
which he sought to have the data with respect to the said amounts deleted
from the latter’s records in compliance with Art. 17 of Regulation (EU)
2016/679 of the European Parliament and of the Council of 27 April
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2016 on the protection of natural persons with regard to the processing
of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation).
4. By decision communicated by e-mail dated 22 February 2021, an
official in the respondent’s Data Protection Unit responded to the
appellant’s Art. 17 request by stating, for the reasons set out therein, that
the information was part of the appellant’s tax record and would be
treated as confidential taxpayer information and processed in accordance
with the Tax Acts. She declined to accede to the appellant’s request. She
further informed the appellant that, if he disagreed with that decision, he
had the right to make a complaint to the Data Protection Commission.
Further correspondence ensued prior to the application for leave to
commence these judicial review proceedings.
5. The requisite originating Notice of Motion was duly issued and
made returnable for 28 June 2021. On 10 November 2022, the appellant
caused to have issued out of the Central Office of the High Court a Notice
of Motion returnable for 5 December of that year in effect seeking
judgment in default against the respondent. The appellant’s affidavit
grounding that motion exhibits the considerable e-mail correspondence
that was exchanged between the parties. It also avers that, whilst the
matter had been listed for mention in the judicial review list, it had at
some point in time fallen out of it, thus requiring that the parties reinstate
it. On that same day, the appellant also caused to have a motion issued,
returnable for the same date, seeking to have the proceedings
anonymized using initials that did not relate to his name.
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6. The respondent filed a Statement of Opposition on 1 December
2022, which, inter alia, pleaded that if the appellant had any legitimate
grievance regarding the decision of 22 February 2021, he failed, refused
and/or neglected to exercise the alternative statutory remedy of a
complaint to the Data Protection Commission.
7. On 5 December 2022, the return date for the above motions, the
proceedings were mentioned before the High Court (Meenan J.). Having
heard the parties, the High Court ordered that the respondent had liberty
to take up the transcript of the hearing of the application for leave. That
order was the subject of an appeal to this Court (No 18 of 2023), which,
after an exchange of written submissions, came on for hearing before
Costello, Faherty, and Haughton JJ. on 27 March 2023.
8. On 8 May 2023, the High Court (Meenan J.) set a date in December
2023 for the hearing of the appellant’s motion to anonymise the
proceedings. On 27 November 2023, the appellant caused to have a
second motion issued out of the Central Office of the High Court, in
which he purported to amend the notice of motion returnable for 5
December 2022 to include an order that the proceedings be held
otherwise than in public, which is allowed for under s. 156 of the Data
Protection Act 2018. These two motions ultimately came on for hearing
before the High Court (Bradley J.) on 17 June 2024.
9. It follows from the foregoing that, having commenced proceedings
in May 2021, the appellant brought motions, without leave of the High
Court, seeking the anonymisation of the proceedings and that they be
heard in camera in November 2022 and November 2023, respectively,
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i.e. seventeen and twenty-nine months after the date of the
commencement of the proceedings.
II. Merits of the Appeal
10. The appellant seeks interlocutory relief in the context of judicial
review proceedings. RSC Ord. 84, r. 20(8)(a) provides that, where leave
to apply for judicial review is granted, the High Court, should it consider
it just and convenient to do so, may on such terms as it thinks fit grant
such interim relief as could be granted in an action begun by plenary
summons. Before examining the merits of the application for
interlocutory relief, the Court is, however, faced with the issue as to
whether the appellant has, by his own conduct, disentitled himself from
obtaining the relief he seeks. This primarily involves consideration of
the delay in bringing on these applications for interlocutory relief.
11. Save in such circumstances as are provided by law, Justice in
Ireland is administered in public. The onus lies on an applicant who seeks
to obtain an order seeking the disapplication of that principle in his
circumstances to demonstrate that he is entitled to it. The nature of the
relief sought here seeks to prevent the public from having knowledge of
the appellant’s affairs by way of the hearing of the substantive
proceedings. Those proceedings are in being since May 2021, i.e. over
four and a half years, during which time the interest that the appellant
now asserts in their anonymisation has not occurred. At all stages,
including the hearing of this appeal, the proceedings have been
conducted in public. In particular, the High Court has delivered two
written judgments in this matter. The status quo is thus that these
proceedings are and have been conducted in public.
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12. The appellant moved the High Court some 17 and 29 months after
the date of the commencement of the proceedings to have them
anonymised/conducted in camera. No good reason, within the meaning
of the case-law governing the extension of time in judicial review
proceedings which both explains and excuses those delays, has been
forthcoming from the appellant. The Court thus has the difficulty that
there is no evidence before it upon which it might exercise its discretion
to extend the time within which to make those applications.
13. By his own failure to proceed with the expedition that is required in
order to protect the interest that he seeks to assert, the appellant has, in
my opinion, lost any right to the relief he seeks in this appeal. In that
regard, his conduct stands in sharp contrast with the applicants in Doe v.
Revenue Commissioners [2008] 3 IR 328, where they sought to protect
their anonymity by applying to the High Court prior to the
commencement of the proceedings, and in G. v. DPP [2023] IEHC 134,
where the issue was raised at the leave stage in the judicial review
proceedings and renewed shortly thereafter. Delays of 17 and 29 months
in asserting a right for proceedings not to be conducted in public also
have the consequence of rendering any order that the High Court might
have made, and certainly one that this Court might make at this stage, an
exercise in futility. So far as the appellant is concerned in these
proceedings, the genie is well and truly out of the bottle. Finally, a further
consideration to be taken into account in weighing up the merits of
entertaining this application is the public interest in the efficient
administration of justice, which has not been served by the tardy
commencement and prosecution of these motions.
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III. Conclusion
14. For these reasons, I propose to dismiss this appeal and to affirm the
order of the High Court.
WHELAN J.
15. I have listened carefully to the judgment delivered by Collins J. I
am in entire agreement with same. I would just merely add that it is quite
extraordinary that the issue of privacy and anonymisation and so forth
was not raised at the very outset in these proceedings, in the context of
the prior history of dealings between the parties and in particular the
litigation history that subsisted between the parties. We need only
consider the determination of the Supreme Court on 10 February 2016
([2016] IESCDET 9), all of 10 years ago now virtually, which goes into
very significant detail with regard to the course of dealings between the
parties and the various issues and which to a very extensive extent
engages with issues which it is now contended are required to be
anonymised.
16. Furthermore, it is surprising that the issue was not raised at the
outset. As was pointed out by Collins J. in decisions such as Doe the
issue was raised at the outset or prior to the very institution of the
proceedings, so that a proper consideration could be given, and so that
interests that were being asserted could be properly evaluated.
17. In this instance, having regard to the fact that what is sought is
interlocutory relief within the meaning of RSC Ord. 84 r. 20(8)(a), it is
important to bear in mind that merely because the Statute of Limitations
1957 does not apply, it does not mean that a litigant is at large to bring
the application at any old time they deem fit. Given the nature of the
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application, an interlocutory application is governed by principles such
as laches, and laches requires that if there is a delay above and beyond
something that is absolutely necessary, then the moving party must
satisfy the Court as to the causes and justifications for the delay. No
justification whatsoever has been articulated by the appellant as to why
he delayed in seeking the orders he very belatedly sought in the two
notices of motion at any time between May of 2021, and December of
2022 and December of 2023. That is a most troubling state of affairs, and
most misfortunate in the circumstances. Particularly since the matter
was, in fact, before the High Court, before Meenan J. in the month of
December 2023 and thereafter has been the subject of an appeal. Both of
those matters were heard in open court, as were other applications
pertaining to this matter heard in open court in the intervening time.
18. Furthermore, such conduct quite separately potentially amounts in
my view, given the extensive duration of it, to an acquiescence on the
part of the appellant and is conduct that is equivalent to a waiver of any
entitlements he might have had. I merely add them in.
19. I am in full agreement with all of the points raised by Collins J. in
his judgment. For all those reasons, in my view the appeal is not viable,
not maintainable.
PILKINGTON J.
20. I have listened carefully to the judgments of Collins and Whelan JJ.
I agree with their respective distillation of all of the issues within this
appeal and indeed the orders that are proposed in dismissing this appeal.
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Appearances:
The Appellant appeared in person
For the Respondent: Eoin Clifford SC and David Quinn, instructed by the
Revenue Solicitors