Jurisdictional Primacy of Tax Appeals in Debt Collection and Delay Excusability: Howley v S & Ors [2025] IEHC 289

1. Introduction

In the High Court judgment of Howley v S & Ors ([2025] IEHC 289), Mr Justice Simons was called upon to resolve an application by five related debtors—members of an extended tarmac-contracting family—to strike out debt-collection proceedings on the basis of inordinate delay under Order 122, rule 11 of the Rules of the Superior Courts. Those summary summons proceedings sought to enforce revenue assessments issued between 2004 and 2014. Uniquely, the defendants invoked only the two-year “want of prosecution” rule, rather than the court’s broader inherent jurisdiction or a no-reasonable-cause-of-action strike-out under Order 19, rule 28. At the heart of the dispute was the interrelationship between (a) parallel appeals and judicial reviews before the Tax Appeals Commission (“TAC”) and the courts and (b) the appropriate timing and jurisdiction for challenging tax assessments in enforcement proceedings.

2. Summary of the Judgment

Mr Justice Simons refused the strike-out application. He held that:

The four-year hiatus between institution (November 2019) and the strike-out motions (late 2023) constituted “inordinate delay” in summary summons proceedings.
That delay was, however, excusable in light of ongoing, jurisdictionally pre-eminent, parallel proceedings before the TAC and the Court of Appeal, which would determine once and for all the validity of the underlying notices of assessment.
Even if the delay were deemed inexcusable, the balance of justice favored allowing the debt-collection proceedings to remain on ice until the TAC litigation concluded, since there was no asserted prejudice to the defendants beyond de minimis cost of filing appearances.
An application under Order 122, rule 11 could not be converted into an argument on the merits of the claim under Order 19, rule 28; the defendants’ “unsustainability” arguments therefore fell outside the scope of their chosen procedure.

3. Analysis

3.1 Precedents Cited

Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459 – the Supreme Court’s landmark formulation of the test for dismissal on grounds of inordinate and inexcusable delay, imposing a three-stage inquiry: (1) inordinate delay; (2) inexcusable delay; (3) balance of justice.
Cave Projects Ltd v Kelly [2022] IECA 245 – the Court of Appeal’s emphasis on a causal link between delay and concrete prejudice, warning against mechanically applying the delay test so as to deprive meritorious plaintiffs of remedy.
Havebell DAC v O’Hanlon [2018] IEHC 557 and Bank of Ireland v Wilson [2020] IEHC 646 – high-court authorities stressing that summary summons must proceed with expedition and that parties should not be left “in the dark” about litigation strategy.
Rodenhuis & Verloop BV v HDS Energy Ltd [2010] IEHC 465; [2011] 1 IR 611 and Comcast International Holding Inc v Minister for Public Enterprise [2012] IESC 50 – authorities on the requirement to give notice when pursuing an unorthodox litigation approach likely to cause delay.
Gladney v Taglienti [2021] IECA 300 – the Court of Appeal’s confirmation that enforcement of “final and conclusive” tax assessments can only be challenged in the TAC or by judicial review, not by collateral defence in summary proceedings.

3.2 Legal Reasoning

The court applied the Primor tripartite test:

Inordinate delay – four years without a material step beyond filing appearances justified a finding of inordinate delay in summary proceedings.
Inexcusable delay – ordinarily, the plaintiff would be expected to pursue judgment or push for hearing. Here, however, the plaintiff reasonably awaited resolution of parallel TAC appeals and subsequent court challenges, because only those proceedings could finally determine whether the underlying notices of assessment were “final and conclusive.”
Balance of justice – even if the delay were inexcusable, no real prejudice to the defendants was shown: no lost witnesses, faded memory or reputational harm, only routine filing costs. Conversely, striking out would duplicate litigation and undermine the jurisdictional framework established by Part 40A TCA 1997 and the Finance (Tax Appeals) Act 2015.

The court further stressed that the narrow scope of an Order 122, rule 11 application prevents a “back-door” merits challenge under Order 19, rule 28. The question whether the notices of assessment were quashed or invalid was reserved for the TAC and judicial-review forums.

3.3 Impact

This judgment crystallizes the primacy of the statutory tax-appeal process over collateral challenges in enforcement proceedings, reinforcing Gladney v Taglienti.
It confirms that awaiting resolution of jurisdiction-determining interlocutory appeals can excuse what would otherwise be inordinate delay.
The decision clarifies the limits of Order 122, rule 11: parties cannot recast a merits-free delay application into a full-blown strike-out on the substantive claim.
Future litigants will be guided to progress summary summons promptly unless genuinely engaged in parallel, controlling appeals or judicial reviews.

4. Complex Concepts Simplified

Summary summons proceedings: A quick, affidavit-based method of enforcing a debt or liquidated claim, intended to be resolved without full oral evidence, on a streamlined timetable.
“Final and conclusive” notice of assessment: A tax assessment that, absent an appeal under the statutory regime (TCA 1997, Part 40A) or judicial review, cannot be challenged in court.
Order 122, rule 11: A procedural rule allowing defendants to ask the court to dismiss a case if no step has been taken for two years, without engaging the broader inherent jurisdiction analysis.
Order 19, rule 28: A mechanism to strike out proceedings that have no reasonable prospect of success, focussed on the merits rather than on mere delay.
Parallel proceedings: Ongoing appeals and judicial reviews before the Tax Appeals Commission and higher courts that determine the core dispute over tax assessments.

5. Conclusion

Howley v S & Ors establishes a new, pragmatic principle: when statutory appellate or judicial-review proceedings are underway to determine the validity of tax assessments, a plaintiff may defer enforcement by summary summons without courting inexcusable delay. The judgment affirms the exclusive channel for challenging revenue assessments—through the TAC and judicial review—and guards against procedural detours in enforcement litigation. By delineating the proper interplay between Order 122, rule 11 and the statutory tax-appeals framework, the High Court has set a clear roadmap for litigants on both sides of tax-debt disputes.