Cavendish - Woodhouse (Holdings) Ltd v Corporation of Dublin

• Jurisdiction: Ireland
• Judgment Date: 01 October 1974
• Date: 01 October 1974
• Docket Number: [D. 3076]
• Court: High Court

[D. 3076]

Cavendish Ltd. v. Corporation of Dublin

CAVENDISH - WOODHOUSE (HOLDINGS) LIMITED.Applicants, and The Right Honourable THE LORD MAYOR, ALDERMEN and BURGESSES OF DUBLIN

Respondents.

Criminal injury - Malice - Proof - Degree of proof - Whether proof to be established on balance of probabilities or beyond reasonable doubt - Local Government (Ir.), Act, 1898 (61 & 62Vict., c. 37), s. 5.

Appeal from the Circuit Court.

The applicants were awarded £302,433.22 in the Circuit Court by His Honour Judge T. J. Neylon pursuant to s. 5 of the Local Government (Ir.) Act, 1898, which provides1for compensation in the case of "maliciously setting fire"to property. The respondents appealed to the High Court.

Where an applicant applies to the Circuit Court under s. 5 of the Local Government (Ir.) Act, 1898, for compensation for the damage that he claims he has sustained by reason of someone"maliciously setting fire" to his house, he discharges the onus of proof if he establishes on the balance of probabilities, that someone set fire to his house maliciously.

So held by Pringle J.

Dinan Dowdall Ltd. v. Dublin Corporation [1954] I.R. 230 not applied.

Cur. adv. vult.

Pringle J. :—

This is an appeal from an award by the Circuit Court

judge of the sum of £302,433.22 for compensation under the Criminal Injuries Acts in respect of the destruction by fire of the applicants' premises at Grafton Street, Dublin, on the night of 1st-2nd March, 1971. The amount of compensation is not in dispute and the only question arising on this appeal is whether the applicants have discharged the onus, which is undoubtedly on them, of proving that the fire which completely destroyed their premises was caused maliciously.

The nature of the proof of malice which is necessary to discharge the onus was a matter of dispute between the parties; the applicants contended that the onus of proof is that required in civil proceedings, that is to say, on the balance of probabilities, whereas the respondents contended that the proof is that required in criminal proceedings, that is to say, proof beyond a reasonable doubt. I am quite satisfied that the applicants' contention is correct and that proof beyond a reasonable doubt is not required.

The case mainly relied upon by counsel for the respondents was the decision of the former Supreme Court in Artificial Coal Co. v. Minister for Finance.7 In that case Kennedy C.J., with whom the other judges agreed, said at pp. 241-2 of the report:— "To establish that the act of setting fire to, burning, or destroying his property was 'malicious,' he must prove that the act was 'malicious' in the legal sense — that is to say, he must prove that the act was a wrongful act, done intentionally, without just cause or excuse. He is not, however, required to prove that the author of the damage was actuated by, or even entertained sentiments of, personal ill-will, antipathy, or spite, towards him (the claimant) —i.e.,'malice in fact,' as it has been called in well-known judgments, or 'malice in personam,' as others might prefer to say. In short, the applicant must prove 'malice in law' in the doing, but need not show 'malice in fact' in the doer, of the injurious act in respect of which compensation is claimed . . . Notwithstanding the arguments derived (in my opinion, erroneously) from the Assize decisions to which I have referred, there can be no doubt that the burden of proving not only that his property has been

burned or destroyed, but also that the setting fire to, burning, or destroying of the property was malicious (in the legal sense), lies upon the applicant for compensation . . . The controversy, however, embraces also the manner in which the burden of proof is to be discharged. The applicant may be able to adduce sufficient direct evidence of credible eye-witnesses to establish his case, in which event cadit quaestio. But if, as so often happens in these cases, the testimony of credible eye-witnesses or other direct evidence is not available, he can only discharge the burden resting upon him by means of indirect evidence, affirmative or negative, or both. It is to this subject that debate has been principally directed. The applicant is somewhat in the position of a prosecutor. He must prove that a crime has been committed by some person or persons, known or unknown, for which the community is to be made liable — that is to say, he must adduce such evidence as will satisfy and convince the mind and conscience of the Judge, acting in the capacity of a...