Title:	Registrar of Companies -v- Anderson & anor
Neutral Citation:	[2004] IESC 103
Supreme Court Record Number:	145/03
High Court Record Number:	2002 852 JR
Date of Delivery:	12/16/2004
Court:	Supreme Court
Composition of Court:	Murray C.J., Hardiman J., Geoghegan J.
Judgment by:	Murray C.J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Murray C.J. Link Hardiman J. Geoghegan J. Link Hardiman J.

1. This is an appeal by the applicant / appellant, the Registrar of Companies, from a refusal of the High Court to grant his application for an order of certiorari by way of judicial review of a decision of the first named respondent made on 25th June, 2002 in the District Court when he struck out two summonses which had been issued by the appellant against the second named respondent company for breach of s. 125 of the Companies Act, 1963 by failing to file annual returns for the said company within the times specified in the Act for the calendar years 2000 and 2001.

2. It is not in dispute that the second respondents (hereafter the company) failed to file their annual returns as required by s. 125 of the Companies Act, 1963. As a consequence the company was prosecuted for its failure to make the returns pursuant to that section.

3. Subsequent to the issuing of the summonses for the said prosecution, and before the matter came for hearing before the District Court, the company filed its annual return in respect of each of the years in question.

4. Because it was late in filing its returns, the company had to pay to the Registrar a significantly higher fee with the return than would have been the case if it had filed the returns by the due date. The fee payable by a company, if it files its annual return on time, is €30.00. However, by virtue of the Companies (Fees) Order, 2001, (S.I. 477/2001) the company was required to pay a fee with the late filing of the annual returns higher than the normal €30.00. The company did not file its annual returns for the years 2000 and 2001 until June 2002 and therefore were subject to the late filing fees imposed by the aforesaid order. Those fees amounted to €1,200.00 in respect of the year 2000 and €379.00 in respect of the year 2001.

5. Subsequent to the late filing of the returns and the payment of the associated late filing fees, the prosecution by the appellant of the company for failing to make their returns came before the District Court on June 25th, 2002.

6. At that hearing it was drawn to the attention of the first named respondent that the company had already filed the returns in question, albeit late, and paid the associated late filing fees which were far in excess of what would have been payable if the returns had been lodged in good time.

7. It would appear that the first named respondent raised a question whether, in the circumstances where the company had already undergone a penalty of paying the increased fees, the subsequent prosecution of the company pursuant to s. 125 of the Act of 1963 “amounted to, or exposed the second named respondent to the risk of double jeopardy …” The quotation is taken from the unchallenged affidavit filed on behalf to the appellant in support of the judicial review application. As appears from that affidavit the District Judge then concluded that there was a risk that the prosecution before him involved a ‘double jeopardy’ for the company and therefore should be struck out. Accordingly, there was no determination on its merits of the prosecution brought against the company.

8. The issue in the case is whether the learned District Judge exceeded his jurisdiction in refusing to hear the case and in striking out the summonses on the grounds that to proceed with the prosecution would offend against the principle of double jeopardy.

Relevant Statutory Provisions
9. Section 125(1) of the Companies Act, 1963 as amended by s. 29 of the Company Law Enforcement Act, 2001 provides:-

“Every company shall, once at least in every year, subject to s. 127, make a return to the Registrar of Companies, being its annual return, in the prescribed form.”

“If a company fails to comply with this section, … the company and every officer of the company who is in default shall be guilty of an offence …”

“Proceedings in relation to an offence under this section may be brought and prosecuted by the registrar of companies.”

13. The learned High Court distinguished the McLoughlin case from the present case on the basis that double jeopardy was not an issue in the McLoughlin case as there was no power in the income tax legislation to prosecute as well as impose a penalty. His concern was that this particular offence gives rise to a criminal sanction when there is already a sanction in place. He concluded that the second named respondent was correct and refused the relief sought.

Submissions of the appellant
14. On behalf of the appellant it was submitted that the late filing fee is neither in form nor in substance a criminal penalty but is rather in the nature of the civil or administrative sanction imposed for failing to file the annual return of a company in a timely fashion as required by the act. The object of the late filing fee and the accumulative daily fee is designed to promote and encourage the timely filing of annual returns for the current year. Since its purpose is administrative it was submitted that the payment of the late filing fee does not preclude the appellant from proceeding with a prosecution pursuant to s. 125 for the offence of failing to file a return within the prescribed time. The late filing fees have no relationship with the prosecution and so far as they are relevant at all they are relevant only to issues of mitigation in respect of any fine to be imposed for the actual offence. It was further submitted that the principle of double jeopardy could not be invoked in favour of the company in a prosecution before the District Court unless the filing fee is determined to be in the nature of a criminal penalty. The principle of double jeopardy does not apply simply where there is an overlap between the criminal law on the one hand and the civil law on the other.

15. Counsel for the appellant also submitted that the courts have considered in a number of cases the characteristics which distinguish civil matters and rely, inter alia, of the decisions of this court in Melling –v- O’Mathghamhna [1962] I.R. 1 and McLoughlin –v- Tuite [1989] I.R. 82. It was submitted that this case law supported the appellants’ contention that the imposition and collection of fees imposed only because of the lateness of the filing of the return of the company was not capable of being considered a criminal penalty in which case the principle of double jeopardy had no application.

Decision
16. As regards the question as to whether the imposition of late filing fees were both in form and substance purely administrative, I consider first of all the formal nature of the obligation to pay late filing fees. The companies’ registration office has a regulatory responsibility for many tens of thousands of companies. Receiving and dealing with the annual return from each of them must be a formidable administrative task and no doubt there is in place management procedures and structures to deal with them. It is also self-evident that it is in the interest of good and efficient administration that annual returns from companies are filed in time within the due date laid down by law. In an ideal world all such returns should be made in time and it seems to me a legitimate administrative objective to seek, by administrative means, to encourage timely filing of returns and discourage late ones. It is by no means an unfamiliar administrative phenomenon for incentives to be provided so as to encourage such matters as the timely payment of bills or the making of reservations in relation to a particular event, or, to discourage late payers or late compliers with a deadline specified in relation to a particular matter, by charging higher or additional fees.

17. In this case the liability to pay higher fees is an automatic consequence to the objective fact of a certain statutory deadline having passed. The amount or amounts are fixed and there is no discretion. It is a foreseeable, objective and automatic consequence for lateness in filing an annual return by any company. It is clearly designed to encourage timely filing and discourage the dilatory. That is something which is clearly in the interest of good and efficient administration.

18. It is manifest that the statutory requirement to pay late filing fees is not in any sense something which involves a criminal process let alone a criminal prosecution.

19. Therefore, from a formal point of view I have no hesitation in concluding that the obligation to pay extra fees for a later return of a company’s annual report is in form an administrative sanction. That is to say a sanction that does not have as its purpose the punishment of an offence but the achievement of a legitimate administrative objective.

20. It may not necessarily follow that something which is in the form of an administrative sanction for failing to comply with a statutory obligation could never be considered to be in substance a criminal penalty. It might be argued for example that a sanction which was so excessive and disproportionate to the administrative objective to be achieved was in substance if not in form the imposition of a criminal penalty. I do not think it is necessary to decide whether the imposition of the late return fees in this case could, even arguably, (which I doubt), be considered as being in substance the imposition of a criminal penalty. The reason is that if the late return fees could be classed as the imposition of a criminal penalty, then it would be one which was imposed outside the criminal process automatically and without discretion. Then it is the relevant statutory provisions imposing such fees which would be open to challenge by reason of the fact that it did not involve a criminal process, with all the due process constitutional protections that the latter would entail.

21. In this case the company were not charged with any offence, no decision or judgment was made by any person or body concerning the individual company, there was no trial of any issue and of course there was no conviction or acquittal.

Double Jeopardy
22. It has for a long time been a principle of the common law that a person cannot be prosecuted and punished for an offence of which he has already been acquitted or convicted. This is commonly referred to as the rule against double jeopardy. It is a rule which applies to the prosecution for criminal offences. The rule, or what also might be called the notion, of double jeopardy is not normally relied upon in express terms in the sense that if a person is prosecuted for an offence arising out of the same breach of the law or the same essential ingredients for which he has previously been tried and either convicted or acquitted, his defence to the second prosecution will be based on the pleas of autrefois acquit or autrefois convict. If either plea is successful the prosecution may proceed no further. I suppose if a prosecution was initiated against a person for an offence for which he had previously been prosecuted and was awaiting trial, he or she might well invoke the rule of double jeopardy in a general sense but the fundamental basis for resisting the second prosecution would be grounded more on an abuse of process or that the court concerned with the second prosecution had no jurisdiction to deal with the matter when another Court was already seized with an existing prosecution for the same offence.

23. However one approaches it, the fundamental point is that the rule of double jeopardy and associated protections against being prosecuted twice for the same offence is a rule which arises in relation to the prosecution of offences.

24. The only criminal process with which the company in this case is concerned with is that which arises out of the two summonses before the District Court. There is and there was not at any time any other criminal process or criminal prosecution.

25. Since there was no other criminal process, no charge, no trial of guilt or innocence, the question of double jeopardy in relation to the District Court prosecution could not arise.

26. In that sense the approach of the District Court Judge was misconceived.

27. That is the only prosecution which has been brought against the company at any stage.

28. If the company feel aggrieved that the administrative process by which they were required to pay late entry fees imposed a criminal penalty in denial of their constitutional rights, then it has been open to them to challenge that statutory consequence. But that is a different matter to be taken up in different proceedings.

29. A District Judge must proceed on the basis of the presumption of constitutionality of an act of the Oireachtas. Accordingly, there having been no prior criminal prosecution, no charge, no conviction or acquittal, the second named respondent was incorrect in holding that the prosecution pending before him was affected by the question of double jeopardy. Accordingly, I conclude that he was wrong in law in striking out the summonses and in failing to hear and determine the proceedings brought on foot of them.

30. For the reasons stated I would allow the appeal and set aside the order of the District Judge striking out the summonses and make the necessary order requiring him to hear and determine the matters before him.