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The High Court refused an interlocutory application for in camera or anonymized proceedings in a judicial review of a rejected tax erasure request, noting that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns.  
The High Court refused an interlocutory application for anonymized proceedings in a judicial review, noting that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns.  


== English Summary ==
== English Summary ==

Revision as of 12:42, 3 July 2024

High Court - 2024 IEHC 337
Courts logo1.png
Court: High Court (Ireland)
Jurisdiction: Ireland
Relevant Law:
Data Protection Act, 2018
Decided: 31.05.2024
Published:
Parties: Barth O' Neill
Revenue Commissioners
National Case Number/Name: 2024 IEHC 337
European Case Law Identifier:
Appeal from:
Appeal to: Unknown
Original Language(s): English
Original Source: The Courts Service of Ireland (in English)
Initial Contributor: Gauravpathak

The High Court refused an interlocutory application for anonymized proceedings in a judicial review, noting that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns.

English Summary

Facts

The applicant is the data subject who files his income tax in Ireland. The controller is the Irish tax authority, the Revenue Commissioner.

The data subject sought to challenge the controller’s refusal to erase data related to his 2007 tax return after they invoked the right to erasure under Article 17 GDPR. The data subject had previously reached a settlement with the tax authority in 2016 regarding tax assessments. In 2021, he requested the erasure of his 2007 tax data, which the controller refused, citing legal obligations under the Taxes Acts, which are also recognized in Article 17(3)(b) GDPR. The controller stated that the data subject could approach the Data Protection Commission if he was not in agreement with the decision of the controller.

Instead of approaching the Data Protection Commission, the data subject applied for judicial review of controller’s decision before the High Court. In this case before the High Court, the data subject filed an application to have the proceedings heard in camera or anonymized. The data subject argued that if the proceedings were not anonymized or held in camera, it would render his substantive relief pointless, as the very information he sought to protect would become public through the court process. Further, he argued that public proceedings could create an impression that he was a non-compliant taxpayer, potentially causing irreparable damage to his reputation.

Holding

The High Court rejected the data subject’s application for in camera proceedings or anonymization.

The court found that the constitutional principle of administering justice in public outweighed the data subject’s privacy concerns. It determined that the data subject’s case did not meet the exceptional circumstances required to justify a departure from public proceedings, as outlined in previous case law.

In this case, the High Court noted, the data subject had already brought an application for judicial review in his name without seeking to anonymise that application. The fact that this information was already in the public domain through these and other proceedings diminished the argument for privacy protection. Accordingly, the Court refused to allow data subject’s case to be held in camera, or those proceedings to be anonymized.

The court also ruled that Section 156 of the Data Protection Act 2018, which the data subject invoked to support his request for in camera proceedings, was not applicable in the case. Section 156 of the Data Protection Act 2018 provides that any part of proceedings under that Part of the law may be heard otherwise than in public. This includes the types of proceedings discussed under Section 117(4) of the Data Protection Act 2018, those being relief by injunction or declaration or compensation for damages. However, this provision does not include judicial review challenges such as the one brought by the data subject in this case.

Comment

The High Court's role in this case is interesting because it is both the controller of the personal data involved in the judicial proceedings and the decisionmaker.

The decision implies that the court has a legal basis to process the personal data in a public hearing. This legal basis would likely come from Article 6(1)(c) GDPR: processing is necessary to comply with its legal obligation to hear cases.

Further Resources

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English Machine Translation of the Decision

The decision below is a machine translation of the English original. Please refer to the English original for more details.

APPROVED





                    THE HIGH COURT




                                          [2024] IEHC 337

                                      Record No. 2021/500JR




BETWEEN/




                    BARTH O’NEILL




                                             APPLICANT



                         -AND-




              THE REVENUE COMMISSIONERS


                                           RESPONDENT


                                        st
JUDGMENT of Mr. Justice Conleth Bradley delivered on the 31 day of May 2024







                                                      1                                            INTRODUCTION




Preliminary


     1. This is an interlocutory application in which the Applicant seeks either (a) an order

         that his substantive judicial review proceedings be heard otherwise than in public (i.e.,


         in camera) or (b) an order directing the anonymisation of that challenge.




     2. The substantive proceedings concern the Applicant’s challenge to the Respondent’s


         refusal to erase data in relation to his 2007 tax return, pursuant to the right to erasure


         (“right to be forgotten”) contained in Article 17 of the General Data Protection

         Regulation (“GDPR”).        1


1Article 17 GDPR provides as follows:

“(1) The data subject shall have the right to obtain from the controller the erasure of personal data concerning

him or her without undue delay and the controller shall have the obligation to erase personal data without

undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in


relation to the purposes for which they were collected or otherwise processed; (b) the data subject withdraws

consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and

where there is no other legal ground for the processing; (c) the data subject objects to the processing pursuant

to Article 21(1) and there are no overriding legitimate grounds for the processing, or the data subject objects to

the processing pursuant to Article 21(2); (d) the personal data have been unlawfully processed; (e) the personal


data have to be erased for compliance with a legal obligation in Union or Member State law to which the

controller is subject; (f) the personal data have been collected in relation to the offer of information society

services referred to in Article 8(1).

(2) Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the

personal data, the controller, taking account of available technology and the cost of implementation, shall take


reasonable steps, including technical measures, to inform controllers which are processing the personal data

that the data subject has requested the erasure by such controllers of any links to, or copy or replication of,

those personal data.



                                                                                                               2Leave to apply for judicial review: 31 May 2021

                                                                        st
    3. Prior to the issuing of this interlocutory motion, on 31            May 2021 this court

        (O’Moore J.) granted the Applicant leave to apply for judicial review to seek a


        number of reliefs, including: (a) an order of mandamus directing the Respondent to

        comply with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in


        particular Article 8, the Taxes Consolidation Act 1997, in particular section 851B, the

        constitutional right to privacy and the doctrine of proportionality with respect to the


        right to be forgotten, and data processing generally with respect to the tax year 2007;

        (b) an order of mandamus requiring the erasure (or reduction to zero) of all personal


        data concerning the Applicant held by or on behalf of the Respondent without undue

        delay and/or for four or six years, or such other period as the court may direct, in

        accordance with the GDPR, in particular Articles 5, 6 and 17, the EU Charter, in


        particular Article 8, the Taxes Consolidation Act 1997, in particular Section 851B, the

        constitutional right to privacy, and the doctrine of proportionality with respect to the


        right to be forgotten, and data processing generally; (c) in the alternative, an order

        pursuant to section 117 of the Data Protection Act 2018, Article 17 of the GDPR, and




(3) Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: (a) for exercising the right of

freedom of expression and information; (b) for compliance with a legal obligation which requires processing by

Union or Member State law to which the controller is subject or for the performance of a task carried out in the

public interest or in the exercise of official authority vested in the controller; (c) for reasons of public interest in

the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3); (d) for

archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in

accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or

seriously impair the achievement of the objectives of that processing; or (e) for the establishment, exercise or

defence of legal claims.”






                                                                                                 3       Order 84B of the Rules of the Superior Courts 1986, directing the Respondent to erase

       (or reduce to zero) all records relating to the year 2007 and such additional years as


       the court deems lawful.




    4. The Applicant also sought and was granted leave to apply for a number of ancillary

       reliefs at paragraphs (d) to (p) of the Statement of Grounds.




The in camera/anonymisation application

    5. In summary, the application before me is essentially an interlocutory application,

       issued post-leave, and comprised in two notices of motion (dated 5 December 2022

              th
       and 12 December 2023) where, as mentioned, the Applicant seeks an order that the

       substantive proceedings be either heard in camera or anonymised. Initially, the

       Applicant relied inter alia upon the inherent jurisdiction of the High Court, Article 43


       of the Charter of Fundamental Rights of the European Union (“the Charter”) and

       Article 13 of the European Convention on Human Rights and Fundamental Freedoms


       (“the ECHR”), and in terms of the later amendment, which sought to have the hearing

       heard otherwise in public (in camera), the Applicant also seeks to invoke section 117

       and section 156 of the Data Protection Act 2018 (“the 2018 Act”).




    6. As just mentioned, by Notice of Motion dated 5 December 2022, the Applicant

       sought inter alia an “order that in accordance with the inherent jurisdiction of the


       court and the Applicant’s right to an effective remedy, under Article 47 of the EU

       Charter of Fundamental Rights and Article 13 of the European Convention on Human

       Rights, that these proceedings are anonymised using initials that do not relate to the


       Applicant’s name.”




                                                                                            4                                                th
    7. By further Notice of Motion dated 12 December 2023, the Applicant sought an

        amendment to the earlier motion in the following terms: “[t]hat the proceedings be


        held otherwise than in public as allowed for under … section 156 of the Data

        Protection Act 2018.”




    8. The Applicant is a litigant in person. Eoin Clifford SC, together with David Quinn

        BL, appeared the Respondent.




Terms of settlement: 13 June 2016


    9. The Applicant reached terms of settlement (comprising nine numbered paragraphs)

        with the Respondent on 13 June 2016.




    10. The first paragraph of the terms of settlement provided for payments in relation to

        CGT and income tax both of which assessments were recorded as being under appeal


        by the Applicant. The second paragraph of the settlement provided for the manner and

        time period of the payment of the sums referred to in the first paragraph.




    11. The fourth paragraph of the settlement inter alia provided that when the full amount

        of the sum referred to had been discharged in accordance with the terms of paragraph


        2, “the Respondent, in consideration of the Appellant’s financial position, shall write

        out the balance of the assessments as being uncollectable.”




    12. By e-mail dated 22 February 2021 from an official in the Data Protection Unit of the


        Respondent, the Applicant was inter alia advised that “[a]rticle 17 of the GDPR is not




                                                                                              5    an absolute right and there are circumstances in which the further retention of the

    personal data is lawful. In the case of Revenue, personal data can be retained “for


    compliance with a legal obligation which requires processing by Union or Member

    State law to which the controller is subject…” as set down in Article 17(3)(b). The


    legal obligation referred to is the Taxes Acts, in particular Section 851B(3), Taxes

    Consolidation Act 1997 which allows taxpayer information to be processed by the

    Revenue Commissioners, inter alia, where required for the purposes of the


    ‘administering, raising, collecting and accounting for tax under the care and

    management of the Revenue Commissioners.’”




13. The letter added that “[i]n the circumstances, the information to which you refer is

    part of your tax record and will be treated as confidential taxpayer information and

    processed in accordance with the Tax Acts. Accordingly we are unable to accede to


    your request under Article 17 of the GDPR. If you disagree with this decision, you

    have the right to make a complaint to the Data Protection Commission.”




                     SUMMARY OF THE APPLICANT’S CASE



                                                   th
14. The Applicant avers by Affidavit sworn on 25 October 2022 inter alia that without

    the benefit of this interlocutory application there would be “no point in the substantial

    relief sought (the subject of the 31 May 2021 leave to take judicial review) – that is


    the Right to be Forgotten”; that the “Right to be Forgotten would be set to nought” if

    the proceedings or the fact that there was a dispute over the sum referred to “was

    reported in the media (all forms), recorded on the Court’s website or in the various


    law reporting journals”; “if the legal proceedings or the quantum were to be reported




                                                                                         6    in the media (all forms) or otherwise “an impression might be created whereby I am

    seen to be a non-compliant tax-payer. This could do irreparable damage to my


    reputation as a compliant tax-payer, it would be defamatory and would lower my

    reputation in the eyes of reasonable members of society””; that the Applicant’s main

    business interest was audited by the Revenue Commissioners in February 2019 and

    the conclusion of the Revenue Commissioner’s finding was that there was no


    outstanding liability, and all paperwork and procedures were in accordance with all

    the Tax Acts and that the “ignominy of being … labelled “tax dodger”, even if

    incorrectly so, is something that stays with one for life and it is a topic that the


    media/public are fixated with and would have lasting consequences on my right to

    earn a living.”



15. In summary, the Applicant claims that the central focus of his case is about his data


    and should be seen through the prism of the Charter and the ECHR, whereas he

    contends that the Respondent seeks to emphasise the taxation context and question the

    applicability of the Charter and the ECHR.




16. The Applicant refers to case-law which he submits illustrates the differences in the

    development of data protection law domestically and in the EU, including, Nowak v


    Data Protection Commissioner (Case C-434/16) (ECLI:EU:C:2017:994) and GD v

    Commissioner of An Gárda Síochána (C-140/20) (ECLI:EU:C:2022:258).



17. The Applicant relies, in particular, on paragraph 29 of the judgment of the CJEU in


    Nowak which stated that “[i]t is not disputed that a candidate at a professional

    examination is a natural person who can be identified, either directly, through his




                                                                                       7    name, or indirectly, through an identification number, these being placed either on

    the examination script itself or on its cover sheet”. The Applicant submits that an


    equivalent situation arises in his case and he wishes to have his name replaced by

    initials.



18. There is, what the Applicant says, is a minor difference between him and the


    Respondent on the applicability of the case law of the CJEU and that of the European

    Court of Human Rights (“the Strasbourg Court”). He submits that the jurisprudence of

    the Strasbourg Court is persuasive but that every organ of the State is bound by it


    arising from the provisions of section 3 of the European Convention on Human Rights

    Act 2003.



19. The Applicant cites Article 6(3) of the Consolidated Version of the Treaty on the


    European Union which provides that “[f]undamental rights, as guaranteed by the

    European Convention for the Protection of Human Rights and Fundamental

    Freedoms and as they result from the constitutional traditions common to the Member


    states, shall constitute general principles of the Union’s law.” He refers to what he

    says is the equivalence in the treatment of the provisions of the ECHR and the

    Constitution in the judgment of the Supreme Court in Gilchrist v Sunday Newspapers


    Ltd [2017] IESC 18; [2017] 2 I.R. 284 per O’Donnell J. (as he then was) at

    paragraphs 23 and 24, pages 202-303.



20. The Applicant also refers to the decision of the CJEU in Google Spain SL v AEPD


    (“Google Spain”) (C-131/12, ECLI:EU:C:2014:317) in the context of Article 8 of the

    Charter and Article 8 of the ECHR and the predecessor to the GDPR, Directive




                                                                                        8    94/46/EC (24 October 1995). He cites, in particular: paragraph 3 of that judgment,

    where reference is made to certain recitals in Directive 94/46/EC, including at


    paragraph 10 of the Directive which refers inter alia to “the object of the national

    laws on the processing of personal data is to protect fundamental rights and

    freedoms, notably the right to privacy, which is recognised both in Article 8 of the


    European Convention of Human Rights and Fundamental Freedoms … and in the

    general principles of Community law”; paragraph 74 of the judgment, where it is inter

    alia stated that the application of Article 7(f) of Directive 94/46/EC necessitates a


    balancing of the opposing rights and interests concerned, in the context of which

    account must be taken of the significance of the data subject’s rights arising from

    Articles 7 and 8 of the Charter; and paragraph 81 of the judgment, which inter alia


    references that a fair balance should be sought in particular between the legitimate

    interest of internet users potentially interested in having access to information and the

    data subject’s fundamental rights under Articles 7 and 8 of the Charter: “[w]hilst it is


    true that the data subject’s rights protected by those articles also override, as a

    general rule, that interest of internet users, that balance may however depend, in

    specific cases, on the nature of the information in question and its sensitivity for the


    data subject’s private life and on the interest of the public in having that information,

    an interest which may vary, in particular, according to the role played by the data

    subject in public life”. The Applicant contends that while a public figure may lose


    some of their privacy rights, he is not a public figure.



21. In NT1 v Google LLC [2018] EWHC 799 (QB), Warby J. at page 367 (paragraph 32)


    summarised the facts of the Google Spain case as follows: the claimant was a Spanish

    national who wanted to remove two links on Google Search to an auction notice




                                                                                         9        posted on a Spanish newspaper’s website, following his bankruptcy. He complained

        that the auction notice was many years out of date and was no longer relevant. When


        the newspaper and Google declined to remove the links to the notice, he brought a

        complaint to the Spanish data protection authority against the newspaper, Google, and


        Google Spain SL, its Spanish subsidiary. The CJEU held that Google was bound by

        the Data Protection Directive because it had set up a subsidiary in an EU Member

        State which was intended to promote and sell advertising space offered by Google


        Search and which orientated its activity towards the inhabitants of that state.



    22. In the application before me, the Applicant placed emphasis on the finding by the


        CJEU in Google Spain (at paragraphs 94 and 96 of the judgment) that there is a “right

        to be forgotten” and that a data subject’s fundamental rights under Articles 7 and 8 of

        the Charter entitled them to request that information no longer be made available to


        the general public by means of a list of results displayed following a search made by

        reference to their name, and their rights may override the rights and interests of the

            2
        ISE and those of the general public and, particularly, that it was unnecessary for the

        data subject to show that the inclusion of the information in the search results caused

        prejudice.




                      SUMMARY OF THE RESPONDENT’S CASE




    23. On behalf of the Revenue Commissioners, Mr. Clifford SC submits that the Applicant

        has not brought himself within the established statutory or common law exceptions to

        the rule that justice be administered in public. In addition, the point is made that much


2
 The operators of internet search engines.



                                                                                              10        of the detail of the Applicant’s 2007 income tax returns, which he seeks in this

        application to be the subject of a ruling that the matter he heard in camera, or in the

        alternative, be anonymised, and in the substantive judicial review proceedings to be


        effectively erased from the Respondent’s computer systems, was the subject matter of

        a determination by the Supreme Court in O’Neill v The Revenue Commissioners


        [2016] IESCDET 9 which is both published and retrievable in the ordinary way.




    24. Mr. Clifford SC submits, by reference to a number of authorities, that the Superior

        Courts have carefully scrutinised claims advanced by litigants to determine whether


        they fall within the common law or statutory exception to the fundamental

        constitutional principle in Article 34.1 of the Constitution that “[j]ustice shall be


        administered in courts established by law by judges appointed in the manner provided

        by this Constitution and, save in such special and limited cases as may be prescribed


        by law, shall be administered in public” and, by analogy, referenced the seven

        principles referred to by the Supreme Court in Gilchrist v Sunday Newspapers


        Limited [2017] IESC 18; [2017] 2 I.R. 284 (which are set out later in this judgment).




    25. Counsel refers to the decision of Clarke J. (as he then was) in Doe & Doe v The

        Revenue Commissioners [2008] IEHC 5; [2008] 3 I.R. 338 and submits that Clarke J.


        rejected the contention that there was a constitutionally-based derived right to

        taxpayer confidentiality and, instead, found that any entitlement that a non-compliant


3The Respondent also referred to Kennedy v Ireland [1987] I.R. 587; Simpson v Governor of Mountjoy Prison

[2019] IESC 81; FOIE v The Government of Ireland [2020] IESC 49; Medical Council v Anonymous [2019]

IEHC 245; Medical Council v A Medical Practitioner [2020] IEHC 245; SM v LM [2022] IEHC 449; RM v SHC

[2023] IEHC 252; Baby AB, Children’s University Hospital Temple Street v CD [2011] IEHC 1.

4O’Donnell J. (as he then was).




                                                                                             11    taxpayer has to confidentiality in their tax affairs is confined to a statutory

    entitlement. It was submitted that the Applicant’s taxpayer information, including for


    the year 2007, was protected by the provisions of section 851A(2) of the Taxes

    Consolidation Act 1997 which provides that “[a]ll taxpayer information held by the

    Revenue Commissioners or a Revenue officer is confidential and may only be

    disclosed in accordance with this section or as is otherwise provided for by any other


    statutory provision.”



26. In their written submissions, Mr. Clifford SC and Mr. Quinn BL make the point that


    from this ‘general prohibition’, a number of exceptions are statutorily prescribed and

    that the Oireachtas, from time to time, has amended this provision to add or clarify the

    circumstances when such information may be lawfully disclosed. Counsel also state

    that it is a common misconception that tax appeals are required to be heard in camera


    and refer to section 949Y(1) the Taxes Consolidation Act 1997 which provides that,

    subject to section 949Y(2) and section 949Y(3), tax appeals before the Tax Appeals

    Commission shall be held in public and that in practice, the Commission facilitates


    requests for in camera hearings pursuant to these provisions.



27. It is pointed out that section 949AO(4) of the Taxes Consolidation Act 1997, requires


    that the Commission’s published determinations, insofar as possible, do not identify

    any person whose affairs were dealt with on a confidential basis. Further, it is

    submitted that even where a tax appeal before the Commission is dealt with in

    camera, any case stated to the High Court is dealt with in public and that there is no


    express provision to displace the constitutional obligation that justice be administered

    in public.




                                                                                        1228. The Respondent also makes submissions which address the substantive judicial


    review application, stating, for example, that arising from the decision of the CJEU in

    Google Spain, the courts must perform a case specific balancing exercise.



29. Insofar as the Applicant relies on section 156 of the 2018 Act, it is submitted that this


    contemplates a tortious data protection action and not an application by way of

    judicial review. Additionally, it is noted that the Applicant chose not to initiate the

    complaint process to the Data Protection Commissioner.




                           AUTHORITIES REFERED TO



30. As referred to above, the Applicant submits that if this application is unsuccessful, his


    substantive proceedings are essentially rendered otiose. On behalf of the Respondent,

    it is submitted that this application was, in any event, misconceived ab initio.




31. This court, Clarke J., (as he then was) in In the matter of an intended action, Doe &

    Doe v The Revenue Commissioners [2008] IEHC 5; [2008] 3 I.R. 338, addressed

    issues in that case which contained both similarities and differences to that concerning


    the Applicant in this case.



32. Unlike the position which applies here, for example, the names of the plaintiffs in that

    case were fictional from the outset and the court was not informed of the actual


    plaintiffs’ names. Clarke J. followed the practice adopted by McCracken J. in Re

    Ansbacher (Cayman) Limited [2002] IEHC 27; [2002] 2 I.R. 517, who described this




                                                                                          13    scenario as akin to “something of the chicken and the egg” where a preliminary issue

    arose as to whether the court had any power to order a hearing in camera or in some


    other way limit the publication of the plaintiffs’ names. In that case, the relevant

    preliminary application was maintained in the name of the plaintiffs’ solicitors.



33. In the case before me, no application was made to anonymise either the initial


    application for leave to apply for judicial review or the various occasions in which the

    substantive proceedings and this motion have appeared in the Non-Jury/Judicial

    Review List-to-Fix dates. The Applicant refers to the decision of the High Court of


    England and Wales (Warby J.) in NT1 & NT2 v Google [2018] EWHC 799 (QB) (the

    title of the proceedings reflected the anonymisation of the claimants), in a decision

    which involved business persons whose convictions of criminal convictions were

    spent under the Rehabilitation of Offenders Act 1974 and where at page 357


    (paragraph 3) under the sub-heading ‘Introduction’, Warby J. inter alia observed that

    “[i]n short, anonymity is required to ensure that these claims do not give the

    information at issue the very publicity which the claimants wish to limit. Other


    individuals and organisations have been given false names in this judgment for the

    same reason: to protect the identities of the claimants”. At pages 359-361 of the

    reported judgment, Warby J. sets out ten key features of the legal framework and


    common law developments in chronological order, including reference to the Human

    Rights Act 1998 which gave effect to provisions of the ECHR in England and Wales

    (paragraph 6) and to the Charter of Fundamental Rights of the European Union,

    particularly Article 7 (respect for private life), Article 8 (protection of personal data),


    Article 11 (freedom of expression and information), Article 16 (freedom to conduct a

    business) and Article 47 (right to an effective remedy).




                                                                                      1434. The Applicant claims that the comments of Warby J. in NT1 & NT2 apply mutatis


    mutandis to his substantive application for judicial review where he seeks the ‘right to

    be forgotten’ and the deletion of his tax data in 2007 but contends that the seeking of

    this remedy would be worthless (and rendered moot) if his name is on the proceedings

    and that he has a right to an effective remedy and to a fair trial pursuant to Article 47


    of the Charter (which provides that “[e]veryone whose rights and freedoms

    guaranteed by the law of the Union are violated has the right to an effective remedy

    before a tribunal in compliance with the conditions laid down in this Article.


    Everyone is entitled to a fair and public hearing within a reasonable time by an

    independent and impartial tribunal previously established by law. Everyone shall

    have the possibility of being advised, defended and represented. Legal aid shall be

    made available to those who lack sufficient resources in so far as such aid is


    necessary to ensure effective access to justice”) and the right to an effective judicial

    remedy against a controller or processor, as per Article 79 of the GDPR (which

    provides “(1) [w]ithout prejudice to any available administrative or non-judicial


    remedy, including the right to lodge a complaint with a supervisory authority

    pursuant to Article 77, each data subject shall have the right to an effective judicial

    remedy where he or she considers that his or her rights under this Regulation have


    been infringed as a result of the processing of his or her personal data in non-

    compliance with this Regulation; (2) Proceedings against a controller or a processor

    shall be brought before the courts of the Member State where the controller or

    processor has an establishment. Alternatively, such proceedings may be brought


    before the courts of the Member State where the data subject has his or her habitual






                                                                                     15    residence, unless the controller or processor is a public authority of a Member State

    acting in the exercise of its public powers.”




35. The Applicant states that the right to his reputation as a compliant taxpayer is

    important and the ‘right to be forgotten’ is part of the protection of this reputation and


    he references Warby J.’s observation at page 379 (paragraph 63) of the judgment in

    NT1 & NT2 v Google that “[t]he authorities show that injury to reputation can engage

    the protection of Article 8 of the Convention”.




36. The Applicant contends that whereas he has rights under Article 8 ECHR, the

    Revenue Commissioners have no corresponding Article 10 ECHR (freedom of


    expression) rights and he refers to page 403 (paragraph 132) of the judgment of

    Warby J. in NT1 v Google, as follows: “[i]n my judgment, the balancing process in

    any individual delisting case is ordinarily, as a matter of principle, to be entered into


    with the scales in equal balance as between delisting on the one hand and continued

    processing on the other. I say that on the basis that such cases will ordinarily engage

    the rights protected by Articles 8 and 10 of the Convention and, for so long as


    European law is part of our domestic law, their counterparts under the Charter, as

    well as the right to freedom of information contained in Article 11 of the Charter.”




37. The Applicant refers to the analysis of the Google Spain case by the Strasbourg Court

    in Hurbain v Belgium (Application No.57292/16, 4 July 2023) where that court, at

    paragraph 73, inter alia described the decision of the CJEU in Google Spain as


    concluding “that if, under Articles 7 and 8 of the European Union’s Charter of

    Fundamental Rights guaranteeing, respectively, the right to respect for private life




                                                                                       16    and the right to the protection of personal data, the data subjects had a right to

    ensure that the information in question relating to them personally should no longer


    be linked to their name by a list of results – although this did not presuppose that the

    inclusion of the information in question caused prejudice to the data subject – and if

    they were thus entitled to request that the information in question no longer be made

    available to the general public on account of its inclusion in such a list of results,


    those rights overrode, as a rule, not only the economic interest of the search engine

    operator but also the interest of the general public in having access to that

    information through a search relating to the data subject’s name. However,


    according to the CJEU, the balance to be struck between the interests of the person

    making the request and the public’s interest in having access to the information might

    depend, in specific cases, on the nature of the information in question and its

    sensitivity for the data subject’s private life and on the interest of the public in having


    that information, an interest which might vary, in particular, according to the role

    played by the data subject in public life.”




38. Thus the Applicant, in the application before me, is seeking a similar remedy to that

    referred to by the Strasbourg Court at paragraph 249 of its judgment in Hurbain v

    Belgium where “the Liège Court of Appeal found that the most effective means of


    protecting G.’s privacy without interfering to a disproportionate extent with the

    applicant’s freedom of expression was to anonymise the article on the website of Le

    Soir by replacing G.’s first name and surname with the letter X. In that connection,

    the Court has previously held that anonymisation is less detrimental to freedom of


    expression than the removal of an entire article (see M.L. and W.W. v. Germany, cited

    above, § 105). It notes that anonymisation constitutes a particular means of altering




                                                                                         17    archived material in that it concerns only the first name and surname of the person

    concerned and does not otherwise affect the content of the information conveyed.”




39. The applicant also refers to G v DPP [2023] IEHC 134, where it was sought to have

    criminal proceedings which were listed before the District Court anonymised and the

    District Court refused the application. In granting leave, this court (Simons J.)


    observed at paragraph 28 of the judgment that he had previously directed that

    reporting restrictions apply to the judicial review proceedings pro tempore as it

    “would render the proceedings nugatory” if such an order were not imposed because


    the identity of the parties, which was the very thing that the applicant sought to

    protect, would have been disclosed.



40. As mentioned earlier, reference is also made to the decision of Clarke J. (as he then


    was) in Doe & Doe v The Revenue Commissioners.



41. In summary, the plaintiffs had reached a settlement with the Revenue Commissioners


    in relation to a scheme for disclosure of undeclared tax liabilities and had sought, via

    a preliminary application, the court’s approval to issue proceedings under assumed

    names. Clarke J. described what the issues were in the case at paragraphs 4.11 to 4.13


    of his judgment, as follows:

        “4.11 Under this heading it was argued on behalf of the plaintiffs that

        an inability to maintain these proceedings with anonymity would

        amount, in substance, to a barrier to proper access to the courts. The


        plaintiffs’ argument was to the effect that a requirement that they be

        named as plaintiffs would, in practical terms, deprive them of the




                                                                                       18opportunity to bring proceedings designed to protect their anonymity.

There is, of course, a sense in which that assertion is factually


correct. A finding by the court that the construction which the

plaintiffs seek to place on the relevant provisions of the Taxes Acts

was correct, would mean that the plaintiffs could not properly be

included in the periodic list of tax defaulters published by the


Revenue. However, the fact that the plaintiffs were tax defaulters who

had entered into a settlement of the type which I have described

earlier in this judgment would, of course, become public knowledge


through the route of the court proceedings which, if not permitted to

be brought anonymously would, of course, identify the plaintiffs as the

tax defaulters concerned.




4.12 Thus, it was said, that where the purpose of the proceedings is to

prevent the publication of a particular piece of information, then

those proceedings are rendered largely useless if the party concerned


has to be named in order to bring the proceedings in the first place.



4.13 However, similar considerations apply to a greater or lesser


extent in many cases. It is, as McCracken J. pointed out in Re

Ansbacher (Cayman) Ltd, the case that persons who wish to restrain

an alleged defamation are required to be named and are, in practice,

required to at least generally identify the defamatory material which


it is believed is likely to be published. Plaintiffs who wish to restrain

the use or publication of undoubtedly confidential material arising in,




                                                                                19        for example, a commercial context, are also required to be named

        though it has to be said that it may be possible to frame such


        proceedings and the evidence presented in a way which does not

        disclose in detail the confidential information concerned. Nonetheless

        such parties will be required to bring into the public domain at least

        such a sufficient description of the material concerned as may be


        necessary for the determination of the proceedings and the making of

        any appropriate order.”




42. The Applicant refers to paragraph 4.2 of the judgment of Clarke J. in Doe & Doe v

    The Revenue Commissioners where it was inter alia observed that “[w]hatever may be

    the position of compliant taxpayers, it is difficult to see how any constitutional

    entitlement could be asserted which would prevent the public generally from being


    made aware of the manner in which others have failed to meet their tax obligations.”

    The Applicant states that as he is a compliant taxpayer, the judgment in Doe has no

    relevance to him.




43. Throughout his submissions, the Applicant emphasises (in also seeking to distinguish

    the decision in Doe) that his application for judicial review is not about tax but is,


    rather, about his data which is stored in the Revenue system. He contends, for

    example, that the Respondent used his data to make a refund, which he states was

    owed to him, to be set at nought.




44. In Gilchrist v Sunday Newspapers Ltd [2017] IESC 18; [2017] 2 I.R. 284, the

    Supreme Court considered the court’s common law power to direct an in camera




                                                                                       20hearing, having regard to the provisions of Article 34.1 of the Constitution which

provides that justice shall be administered in courts established by law by judges


appointed in the manner provided by the Constitution, and, save in such special and

limited cases as may be prescribed by law, shall be administered in public and further

considered the provisions of Article 6 of the ECHR. After analysing a number of

statutory provisions and case law, including In re R Ltd [1989] I.R. 126; Irish Times


Ltd v Ireland [1998] 1 I.R. 359; O’Donnell J. in Gilchrist v Sunday Newspapers Ltd

[2017] IESC 18; [2017] 2 I.R. 284 at paragraph 45, summarised the applicable

principles, as follows:


            “(i) The Article 34.1 requirement of administration of justice

            in public is a fundamental constitutional value of great

            importance;

            (ii) Article 34.1 itself recognises, however, that there may be


            exceptions to that fundamental rule;

            (iii) Any such exception to the general rule must be strictly

            construed, both as to the subject matter, and the manner in


            which the procedures depart from the standard of a full

            hearing in public;

            (iv) Any such exception may be provided for by statute but


            also under the common law power of the court to regulate its

            own proceedings;

            (v) Where an exception from the principle of hearing in public

            is sought to be justified by reference only to the common law


            power and in the absence of legislation, then the interests

            involved must be very clear, and the circumstances pressing.




                                                                                   21Here that demanding test is capable of being met by the

combination of the threat to the programme and the risk to


lives of people in it or administering it. This is not a matter of

speculation, but seems an unavoidable consequence of the

existence of a witness protection programme;

(vi) While if it can be shown the justice cannot be done unless


a hearing is conducted other than in public, that will plainly

justify the exception from the rule established by Article 34.1,

but that is not the only criterion. Where constitutional


interests and values of considerable weight may be damaged

or destroyed by a hearing in public, it may be appropriate for

the legislature to provide for the possibility of the hearing

other than in public, (as it has done) and for the court to


exercise that power in a particular case if satisfied that it is a

case which presents those features which justify a hearing

other than in public;


(vii) The requirement of strict construction of any exception to

the principle of trial in public means that a court must be

satisfied that each departure from that general rule is no more


than is required to protect the countervailing interest. It also

means that court must be resolutely sceptical of any claim to

depart from any aspect of a full hearing in public. Litigation is

a robust business. The presence of the public is not just


unavoidable, but is necessary and welcome. In particular this

will mean that even after concluding that case warrants a




                                                                         22                departure from that constitutional standard, the court must

                consider if any lesser steps are possible such as providing for


                witnesses not to be identified by name, or otherwise identified

                or for the provision of a redacted transcript for any portion of

                the hearing conducted in camera.”




                               ASSESSMENT & DECISION



45. The decision of the Supreme Court in Gilchrist eschewed, as incorrect, an approach


    which contemplated only two binary options, i.e., a hearing in camera or a hearing in

    public. Rather, a sceptical and incremental approach which examined lesser steps

    which might meet the legitimate interests involved was preferred including, by way of

    example, considerations of anonymising witnesses, orders that witnesses may not be


    photographed or identified in any way, whether any part of the hearing may be

    conducted in public, whether it was possible in respect of any hearing that was held in

    private that a redacted transcript of proceedings can be released to the media.




46. For the following reasons, I am of the view, notwithstanding the comprehensive

    submissions of the Applicant, that his application is misconceived and incorrect,


    (including having regard to section 156 of the 2018 Act). Further, I do not consider

    that the arguments of the Applicant are exceptional in the Gilchrist sense or that there

    are any intermediate steps, along the spectrum book-ended by an in camera hearing,

    at one end, and a public hearing, at the other, such as the use of initials, a process of


    redaction or any process of anonymisation, is warranted in this case. For the following






                                                                                        23    reasons, therefore, I am of the view that this application for judicial review should be

    conducted fully in public.




47. In Doe & Doe v The Revenue Commissioners, Clarke J. was not satisfied that the fact

    that publicity attaching to proceedings might be counterproductive to the benefit of

    bringing proceedings from an intended plaintiffs’ perspective constituted a basis for


    anonymisation and observed as follows at paragraphs 4.18 of his judgment:

        “There is, in my view, a distinction of some importance to be drawn

        between, on the one hand, a case where the benefit of bringing


        proceedings (even if they be successful) would be impaired (even to a

        significant extent) by the necessity to have the proceedings conducted

        in full publicity, and on the other hand, a situation where the very

        outcome of the proceedings themselves could be affected by such


        publicity. Each of the judgments of the Supreme Court in Irish Times

        emphasised the heavy constitutional weight to be placed on ensuring

        that the administration of justice is conducted in a fair manner.


        Publicity which might affect the fair and just result of proceedings

        has the potential, therefore, to be a significant interference with the

        administration of justice. In those circumstances significant weight


        has to be attached to a consideration of measures which may be

        designed to promote the likelihood of a fair and just result to

        litigation. I was not satisfied that an equivalent weight ought be

        attached to circumstances where there was no risk that the ultimate


        determination of the court, in the exercise of the administration of

        justice, would be other than fair, but where it might be said that




                                                                                         24        publicity attaching to proceedings might, even to a significant extent,

        devalue the benefit of bringing the proceedings on anything other


        than an anonymous basis.”



48. Clarke J. set out his conclusions on the plaintiffs’ application made at paragraph 5.1

    of the judgment as follows:


        “For the reasons which I have sought to analyse I was not, therefore,

        satisfied that the court had any jurisdiction to permit proceedings

        such as those intended by the plaintiffs to be conducted on an


        anonymous basis. I was not satisfied that any entitlement to

        confidentiality concerning their tax affairs which the plaintiffs might

        assert could be of sufficient weight to countervail, even to a limited

        extent, the constitutional imperative to the effect that justice be


        administered in public. Nor was I satisfied that a requirement that the

        proceedings be brought in the names of the plaintiffs amounted to an

        infringement of the plaintiffs undoubted right of access to the courts.


        The fact that the plaintiffs might be discouraged from bringing

        proceedings if not permitted to bring them anonymously was not, of

        itself, in my view, a sufficient reason to give rise to a jurisdiction to


        permit the proceedings to be brought anonymously. Nor, in my view,

        was the fact that some of the purpose of the proceedings might be

        lost, in practice, a sufficient factor to give rise to a constitutional

        jurisdiction to permit these proceedings to be brought anonymously.”









                                                                                        2549. As it happens, arising from the decision of the court in Doe & Doe v The Revenue

    Commissioners, which required the plaintiffs to bring the proceedings in their own


    names, they decided not to proceed with the substantive proceedings.



50. In the case before me, the Applicant had already brought the application for judicial

    review in his own name and had not sought to have the leave application anonymised


    for that purpose or that reporting restrictions apply to the leave application. His

    application in that sense has a retrospective quality to it. Further, whatever about the

    question of the mootness of the substantive proceedings, which the Applicant submits


    will result from the refusal of this application, there is no suggestion that those

    proceedings would be conducted unfairly.



51. In relation to the Applicant’s arguments concerning the position of the ECHR in our


    constitutional architecture, it is clear that, whether or not legal arguments by reference

    to the ECHR and the Constitution come first or second in time or in sequence, the

    important issue is that the provisions of the Constitution are properly considered and


    addressed (see the judgment of the Supreme Court in joint cases Gorry & Anor v The

    Minister for Justice & Equality and ABM & BA v The Minister for Justice [2020]

    IESC 55 at paragraph 209 per McKechnie J.) as the Oireachtas could not, in the


    absence of a constitutional amendment, have elected to treat the ECHR as if it were

    some form of shadow or substitute Constitution (see the judgment of the Supreme

    Court in Clare County Council v McDonagh & Anor and Irish Human Rights and

    Equality Commission (Amicus Curiae) [2022] IESC 2 per Hogan J. at paragraph 52).









                                                                                       2652. As these authorities make clear, the Long Title to the European Convention on

    Human Rights Act 2003 states that the giving effect to the ECHR in our domestic law


    is subject to the provisions of the Constitution and, therefore, the ECHR does not have

    direct effect. Without a constitutional amendment, the Oireachtas could not have

    elected to treat the ECHR as if it were some form of proxy or substitute constitutional

    measure.




53. As just mentioned, (and paraphrasing Hogan J. in Clare County Council v

    McDonagh) the precise sequence in which the ECHR or the Constitution is


    considered, in any relevant litigation, is not predetermined or prescribed so long as the

    Constitution is also properly considered and addressed at the same time as the ECHR

    because to do otherwise would be yielding a form of quasi-constitutional primacy to

    the ECHR, which it has never been afforded.




54. Further, as explained by the Supreme Court (Hogan J.) in Clare County Council v

    McDonagh [2022] IESC 2, at paragraphs 51 and 52 of the judgment, the Charter has,


    as an EU measure, in principle, direct effect in Irish domestic law, subject only to the

    conditions of its application specified in Article 51 (the Member State must be

    implementing EU law) and Article 52 (inter alia the rights prescribed in the Charter


    are interpreted in harmony with the Member State’s traditions), because Article 6(1)

    Treaty on European Union (TEU) prescribes that it “shall have the same legal value

    as the Treaties” and because the State is empowered to ratify the TEU in accordance

    with Article 29.4.6 of the Constitution. In contrast, by virtue of the European


    Convention on Human Rights Act 2003, the ECHR has – pursuant to Article 29.6 of






                                                                                       27    the Constitution – been given effect in Irish law without direct effect and at sub-

    constitutional level.




55. In relation to the Applicant’s general arguments concerning anonymity, it is noted that

    the Oireachtas has provided for anonymity in certain circumstances, for example,

    section 27 of the Civil (Miscellaneous Provisions) Act 2008 provides for anonymity


    in civil proceedings in relation to a medical condition of a relevant person and section

    26 of the International Protection Act 2015 provides for the protection of an

    applicant’s identity.




56. In terms of tax matters, section 949Y(1) of the Taxes Consolidation Act 1997 (“the

    1997 Act”) provides that subject to sections 949Y(2) and 949Y(3) of the 1997 Act, all

    hearings are to be held in public. Section 949Y(2) of the 1997 Act provides that the


    Appeal Commissioners may direct to hold a hearing, or part of a hearing, in private in

    certain specified situations including where they consider the giving of such a

    direction is necessary in the following circumstances: (a) in the interests of public


    order or national security; (b) to avoid serious harm to the public interest; (c) to

    maintain the confidentiality of sensitive information; (d) to protect an individual’s

    right to respect for his private and family life; or (e) in the interest of justice. Section


    949Y(3) of the 1997 Act provides that the Appeal Commissioners must hold a hearing

    or part of a hearing in private where an appellant request they do so. Requests can be

    made by way of application for a direction or can be included in the statement of case

    and section 949Y(4) of the 1997 Act provides that an appellant can submit a request


    for a private hearing up to 14 days after being notified of a hearing. (The Applicant






                                                                                          28    submits that, in his experience, many of these appeals are in fact redacted having

    regard to the provisions of section 949Y(2)(d) of the 2018 Act).




57. As set out earlier, in the letter dated 22ndFebruary 2021 from the Respondent, the

    Applicant was advised that the Respondent was unable to accede to his request under


    Article 17 of the GDPR and that if he disagreed with that decision, he had the right to

    make a complaint to the Data Protection Commissioner. He chose not to do so and,

    rather, proceeded by way of judicial review under Order 84 RSC. The Applicant


    submits that his preference was to pursue the route of judicial review rather than make

    a complaint to the Data Protection Commissioner (though he submits that the DPC

    was contacted by him during Covid-19 but that he decided to proceed by way an


    application for judicial review). The Applicant refers to section 117 of the 2018 Act

    (‘Judicial Remedy for infringement of relevant enactment’) and, in particular, section

    117(1) of the 2018 Act which refers to “[s]ubject to subsection (9), and without


    prejudice to any other remedy available to him or her, including his or her right to

    lodge a complaint, a data subject may, where he or she considers that his or her

    rights under a relevant enactment have been infringed as a result of the processing of


    his or her personal data in a manner that fails to comply with a relevant enactment,

    bring an action (in this section referred to as a “data protection action”) against the

    controller or processor concerned.” (The Applicant relies on the portion of the


    quotation underlined).



58. Part 6 of the 2018 Act comprises Chapters 1 to 8 which includes sections 105 to 156


    of the 2018 Act. Section 117 of the 2018 Act provides for “Judicial remedy for






                                                                                         29    infringement of relevant enactment” and (subject to section 117(5) and (6), the Circuit

    Court has concurrent jurisdiction with the High Court).




59. Section 117(4) of the 2018 Act provides that a court hearing a data protection action

    shall have the power to grant to the plaintiff one or more of the following reliefs: (a)

    relief by way of injunction or declaration; or (b) compensation for damage suffered by


    the plaintiff as a result of the infringement of a relevant enactment. Section 156 of the

    2018 Act provides that the whole or any part of any proceedings under this Part may,

    at the discretion of the court, be heard otherwise than in public. The reference to “this


    Part” is a reference to “Part 6” of the 2018 Act and the legal proceedings which are

    prescribed therein, including, for example, those provided for in section 117(4) of the

    2018 Act. Section 156 of the 2018 Act does not include or refer to the type of

    challenge brought by the Applicant in this case, i.e., by way of judicial review.




60. Notwithstanding the Applicant’s comprehensive written and oral submissions, his

    attempt, in this interlocutory application, to invoke section 156 of the 2018 Act, is


    misconceived.



61. In addition, it is noted that the Applicant has sought an order directing either an in


    camera hearing or anonymisation, mid-stream as it were, after leave to apply for

    judicial review had been granted, and the matter, has been before the court in the

    Non-Jury/Judicial Review List of the High Court without anonymisation or redaction

    on multiple occasions. To that extent, it is the Applicant who has brought his own tax


    affairs back into focus.






                                                                                           3062. Further, the Supreme Court gave a detailed determination refusing the Applicant’s

    application for leave to appeal in relation to the decision of the Court of Appeal

                   st
    delivered on 31 July 2015 which in turn referred to the two judicial review appeals

    brought by the Applicant to the Court of Appeal.




63. The Supreme Court (Denham CJ., Laffoy J. and Charleton J.) in O’Neill v Revenue

    Commissioners & The Attorney General [2016] IESCDET 9, for example, refused the

    Applicant leave to appeal from the judgment of the Court of Appeal (Ryan P., with

                                                         st
    whom Kelly J. and Hogan J. agreed) delivered on 31 July 2015, which decided the

    Applicant’s appeals from both cases of judicial review, which he had brought to the

    Court of Appeal. The Applicant had sought an order quashing the financial


    assessment made against him and an order of mandamus requiring a letter from the

    respondent stating: “[w]e have examined your expression of doubt and in accordance

    with Section 995(4) (a) hold that it is genuine; we will be treating you as though you


    have made a full and true return.” The Applicant had stated that he was seeking a

    declaration that section 955(4) of the Taxes Consolidation Act 1997 along with the

    Taxes (Electronic Transmission of Income Tax and Capital Gains Tax Returns under


    Self-Assessment) (Specified Provision and Appointed Day) Order 2001 (S.I. 441 of

    2001 (ROS: Revenue Online Service)) was unconstitutional. The Applicant had also

    sought a declaration that the method used by the respondent to define “Trade”, “the


    Badges of Trade”, which was a 1954 UK Royal Commission, was unconstitutional.

    The fact of these matters remains in the public domain.




64. In the circumstances, I shall refuse the Applicant’s interlocutory application for an

    order that his substantive judicial review proceedings be heard otherwise than in




                                                                                      31    public or in camera and I shall also refuse the application that those proceedings be


    anonymised.




                               PROPOSED ORDER



65. Accordingly, I will make an order refusing the Applicant’s application for an order


    that his substantive judicial review proceedings be heard otherwise than in public or

    in camera and I shall also refuse the application that those proceedings be


    anonymised.



                                                          th       th
66. It was agreed at the hearing of this application on 11 and 12 April 2024 that any

    intended application for a preliminary reference to the CJEU would be left over until

    judgment was delivered on the Applicant’s in camera/anonymisation application. I

                                                                 th
    will, therefore, put the matter in before me on Wednesday 5 June 2024 at 10:15 to

    deal with this and any other ancillary and consequential matters which arise.





























                                                                                      32