Blake v Attorney General

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1982
Docket Number[1978 No. 6918 P]
Date01 January 1982

High Court

Supreme Court

[1978 No. 6918 P]
Blake v. The Attorney General
Dorothy Blake, Brigid Elizabeth Downes, Eileen McAleese, Nuala Ladd and Patricia Hodgins
Plaintiffs
and
The Attorney General

Cases mentioned in this report:—

1 Pigs Marketing Board v. Donnelly (Dublin) Ltd.IR [1939] I.R. 413.

2 Fisher v. Irish Land CommissionIR [1948] I.R. 3.

3 Buckley & Others (Sinn Féin) v. The Attorney GeneralIR [1950] I.R. 67.

4 Attorney General v. Southern Industrial Trust Ltd.DLTR (1957) 94 I.L.T.R. 161.

5 Central Dublin Development Association v. The Attorney GeneralDLTR (1969) 109 I.L.T.R. 69.

6 Ryan v. The Attorney GeneralIR [1965] I.R. 294.

7 McGee v. The Attorney GeneralIR [1974] I.R. 284.

8 Rooney v. Department of AgricultureIR [1920] 1 I.R. 176.

9 Rafter v. Dublin CorporationIR [1953] I.R. 36.

10 Murphy v. Corporation of DublinIR [1979] I.R. 115.

11 Block v. HirschUNK (1921) 256 U.S. 135.

12 Marcus Brown Co. v. FeldmanUNK (1921) 256 U.S. 170.

13 Chastleton Corporation v. SinclairUNK (1924) 264 U.S. 543.

14 Home Building & Loan Association v. BlaisdellUNK (1934) 290 U.S. 398.

15 Louisville Bank v. RadfordUNK (1935) 295 U.S. 555.

16 Woods v. Miller Co.UNK (1948) 333 U.S. 138.

17 Staffordshire Health Authority v. Staffordshire WaterworksWLR [1978] 1 W.L.R. 1387.

18 Cassidy v. Minister for IndustryIR [1978] I.R. 297.

19 de Burca v. The Attorney GeneralIR [1976] I.R. 38.

20 O'Brien v. KeoghIR [1972] I.R. 144.

21 Moynihan v. GreensmythIR [1977] I.R. 55.

22 Foley v. Irish Land CommissionIR [1952] I.R. 128.

23 Clinch v. McKeoghDIJR [1964] Ir. Jur. Rep. 37.

24 Dowling v. HannonIR [1964] I.R. 19.

25 Reid v. HoganIR [1973] I.R. 305.

26 O'Byrne v. ByrneDLTR (1938) 72 I.L.T.R. 65.

27 Condon v. Minister for LabourIR [1981] I.R. 62.

28 Siney v. Corporation of DublinIR [1980] I.R. 400.

29 McCombe v. SheehanIR [1954] I.R. 183.

30 Boland v. An TaoiseachIR [1974] I.R. 338.

31 Cahill v. SuttonIR [1980] I.R. 269.

32 O'Brien v. Manufacturing Engineering Co.IR [1973] I.R. 334.

33 East Donegal Co-Operative v. The Attorney GeneralIR [1970] I.R. 317.

34 Maher v. The Attorney GeneralIR [1973] I.R. 140.

35 State (Attorney General) v. ShawIR [1979] I.R. 136.

36 King v. The Attorney GeneralIR [1981] I.R. 233.

Constitution - Statute - Validity Landlord and tenant - Rent and recovery of possession restricted - Personal rights - Attack on citizens' property rights - Interpretation - Stare decisis - Rent Restrictions Act, 1960 (No. 42), ss. 7-18, 29-38 - Constitution of Ireland, 1937, Articles 40, 43.

Plenary Summons.

On the 22nd November, 1978, the plaintiffs issued a summons in the High Court and therein claimed a declaration that the provisions of Parts 2 and 4 of the Rent Restrictions Act, 1960, were invalid having regard to the provisions of the Constitution of Ireland, 1937. On the 27th July, 1978, Patrick Madigan issued a plenary summons (1978 No. 4502 P.) in the High Court, naming the Attorney General as defendant, and therein claimed a declaration that Part 4 of the Act of 1960 was invalid for the same reasons. The two actions were tried together by McWilliam J. on the 4th-7th March, 1980.

The defendant appealed to the Supreme Court from the judgment of the High Court and the order made thereunder in each action. The appeals were heard by the Supreme Court (O'Higgins C.J., Walsh, Henchy, Griffin and Parke JJ.) on the 1st-5th December, 1980. Parke J. died on the 18th February, 1981, and the appeals were re-argued before the Supreme Court (O'Higgins C.J., Walsh, Henchy, Griffin and Kenny JJ.) on the 11th-13th March, 1981.

In the second year of the Great War 1914-1918 a temporary statutory restriction was placed on the rents payable by tenants of dwelling-houses having rateable valuations which did not exceed specified sums; at the same time statutory restrictions were placed on the recovery by landlords of possession of those dwellings. The general scheme of the temporary code was renewed from time to time until the year 1946 when a consolidation Act was passed preserving the general scheme without any limitation on the duration of its provisions. The consolidation effected in 1946 was replaced by the Act of 1960, which was amended in 1967 and in 1971. The results of the application of the provisions of the Act of 1960 restricting the rents payable by tenants of controlled dwellings were affected by the pre-existing depressed level of the rents prevailing as a result of the effect of the code since its inception. The plaintiffs were landlords of dwellings which had been let to tenants who were protected by the provisions of the Act of 1960. In the year 1978 the plaintiffs claimed in the High Court a declaration that the provisions of Part 2 of the Act of 1960 (relating to rent restriction) and the provisions of Part 4 of that Act (relating to recovery of possession) were invalid having regard to the provisions of the Constitution. At the hearing of the plaintiffs' action it was established that the rents obtainable by them on an open market would be in one instance 9 times greater and in another instance 19 times greater than the rent payable by the tenant under the provisions of the Act of 1960.

Held by McWilliam J., in making the declaration sought by the plaintiffs, that Parts 2 and 4 of the Act of 1960 were repugnant to the provisions of the Constitution in selecting arbitrarily one group of citizens and depriving them of their property for the benefit of another group of citizens without compensation, with no limit on the period of deprivation, and without indicating any reason for the selection of the first group for that purpose from the general body of citizens.

On appeal by the defendant it was

Held by the Supreme Court, in disallowing the appeal, 1, that the impugned parts of the Act of 1960 could not be regarded as regulating or delimiting the general property rights comprehended by Article 43 of the Constitution, and that the issue was whether there had been an unjust attack on the property rights of the plaintiffs contrary to Article 40, s. 3, sub-s. 2, of the Constitution.

The Attorney General v. Southern Industrial Trust Ltd.DLTR (1957) 94 I.L.T.R. 161 not approved.

2. That the subject matter of the Court's review consisted of the impugned parts of the Act of 1960, as altered by amendments and repeals, which were in existence at the date of the Court's adjudication.

3. That the provisions of the Act of 1960 constituted an attack on the property rights of the owners of dwellings to the extent that those provisions rendered ineffective the exercise of such rights by those owners.

4. That the provisions of Part 2 of the Act of 1960 constituted an unjust attack on the property rights of the plaintiffs contrary to Article 40, s. 3, sub-s. 2, of the Constitution since those provisions restricted the exercise of the property rights of one group of citizens for the benefit of another group without providing compensation for the first group, and in a manner which disregarded the financial capacity or needs of the members of the groups and which failed to limit the period of such restriction or to provide a method by which a landlord could have a rent reviewed.

5. That the provisions of Part 4 of the Act of 1960, being an integral part of the unjust attack contained in Part 2, could not be preserved by severance from Part 2 since the legislature never contemplated the separate existence of the provisions of Part 4 of the Act of 1960.

Maher v. The Attorney GeneralIR [1973] I.R. 140 and King v. The Attorney GeneralIR [1981] I.R. 233 applied.

Cur. adv. vult.

McWilliam J.

In the Blake action orders are sought declaring that the provisions of Part II and Part IV of the Rent Restrictions Act, 1960, as amended by the Rent Restrictions (Amendment) Act, 1967, and the Landlord and Tenant (Amendment) Act, 1971, are repugnant to the Constitution and invalid. I shall refer to the Act of 1960, as amended, as "the Act." In the Madigan action, in which the last three defendants are tenants to the plaintiff, orders are sought declaring (a) that the provisions of Part IV of the Act are repugnant to the Constitution and are void and of no effect and (b) that, on the determination of their respective tenancies in the premises at No. 26 Elgin Road, Ballsbridge, in accordance with the terms of their respective tenancy agreements, those defendants shall be bound to deliver up possession to the plaintiff of the respective portions of the premises occupied by them.

Part II of the Act restricts the amount of rent which may be charged to tenants of controlled dwellings, and Part IV restricts the right of a landlord of a controlled dwelling to recover possession of it on determination of a tenancy. Controlled dwellings include all dwellings other than those within the exceptions enumerated in s. 3 of the Act. Essentially, the Act now applies to various categories of dwellings having rateable valuations up to and including £60, £40 and £30 respectively in Dublin and Dún Laoghaire, and up to and including rateable valuations of £40, £30 or £20 respectively elsewhere, which have been constructed before the 7th May, 1941.

The two actions have been heard together and they cover a wide range of circumstances, including one in which premises at No. 32 Haroldville Avenue are let at a controlled rent which, if normal repairs were carried out, would leave the landlord sustaining a net loss of £35 p.a.; and another in which premises at Elgin Road were purchased by the landlord in 1971 with tenants in occupation at rents which produce a reasonable return on the purchase price, although nothing like the return which could be obtained in the open market.

The history of the Rent Restrictions Acts commences with the Increase of Rent and Mortgage Interest (War Restrictions) Act, 1915. That statute was enacted for the duration of the first World War and for six months after its termination...

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