Clare County Council v Mahon
Jurisdiction | Ireland |
Judge | Miss Justice Carroll |
Judgment Date | 01 January 1996 |
Neutral Citation | 1995 WJSC-HC 4191 |
Court | High Court |
Docket Number | No. 16083p/1990,[1990 No. 16083P] |
Date | 01 January 1996 |
1995 WJSC-HC 4191
THE HIGH COURT
BETWEEN
AND
Citations:
PUBLIC HEALTH (IRL) ACT 1878
LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S78
POOR RELIEF (IRL) ACT 1838
LOCAL GOVT (IRL) ACT 1898
LOCAL GOVT ACT 1925
COUNTY MANAGEMENT ACT 1940 S36
HAGREAVES V TAYLOR 1905 2 CH D 400
CARL ZEISS STIFTUNG V RAYNER & KELLER LTD 1966 2 AER 536
MARGINSON V BLACKBURN BOROUGH COUNCIL 1939 2 KB 426
NORTH-WEST WATER LTD V BINNIE & PARTNERS 1990 3 AER 547
REAMSBOTTOM V RAFTERY 1991 1 IR 531
LAWLESS V BUS EIREANN 1994 1 IR 474
SPENSER-BOWER & TURNER ON RES JUDICATA 2ED 213 – 214, 229
WAKEFIELD CORPORATION V COOKE 1904 AC 31
PRIVATE STREET WORKS ACT 1892 S6
PRIVATE STREET WORKS ACT 1892 S7
PRIVATE STREET WORKS ACT 1892 S8
R V HUTCHINGS 1881 6 QBD 300
LOCAL GOVT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S8
KILDARE COUNTY COUNCIL & BRADY V KEOGH 1971 IR 880
ELECTRICITY (SUPPLY) (AMDT) ACT 1930 S11(2)
DUBLIN CORPORATION V MCGRATH 1978 ILRM 208
Synopsis:
EVIDENCE
Estoppel
Issues - ~Res judicata~ - Statute - Powers - Exercise - No estoppel in face of statute - Claim of sanitary authority for payment of water charges - Claim unaffected by previous failure to recover judgment for charges against another householder - (1990/16083 P - Carroll J. - 17/10/95)1995 3 IR 193 1996 1 ILRM 521
|Clare County Council v. Mahon|
LOCAL GOVERNMENT
Sanitary authority
Water - Supply - Charges - Occupier - Payment - Liability - Estoppel - Previous failure of plaintiff authority to prove claim against occupier in same district - Allegation that water should be supplied free of charge pursuant to alleged charitable trust - Statutory power of authority to charge for services - No estoppel in face of statute - Public Health (Ireland) Act, 1878, s. 65A - Local Government (Financial Provisions) (No. 2) Act, 1983, s. 8 - (1990/16083 P - Carroll J. - 17/10/95)1995 3 IR 193 1996 1 ILRM 521
|Clare County Council v. Mahon|
Judgment of Miss Justice Carroll delivered the 17th day of October 1995
This matter comes before me by way of agreed special case on a preliminary question of law arising from the Defendants" plea of estoppel by res judicata. The Plaintiffs have sued the Defendants who reside in County Clare and are connected to the Ballyvaughan water supply, claiming a series of declarations. The two Defendants had refused to pay their water charges from 1983 and 1987 respectively. They claim to be entitled to the benefit of an Indenture of Lease dated 1st February, 1877 (referred to as the 1877 Lease) and made between Colonel Charles William White, the lessor, of the one part and the Guardians of the Ballyvaughan Union in the County of Clare, the lessees, of the other part wherein certain water works were leased to the lessees and their successors for nine hundred and ninety nine years from the date thereof.
The declarations claimed are:-
1. A declaration that the Defendants are required to pay water charges pursuant to the provisions of the Public Health (Ireland) Act, 1878 as amended by the Local Government (Financial Provisions) No. 2 Act, 1983.
2. A declaration that the Defendants are not entitled to avail of the benefit of the aforesaid lease.
3. A declaration that in the event that the Defendants are entitled to avail of the said lease, they are estopped from doing so by virtue of their requests to be connected to the water supply and by paying the water charges thereto.
In paragraph 10 of their defence the Defendants having (inter alia) relied upon the 1877 Lease pleaded:-
"Each of the Defendants says that the Plaintiffs are estopped from maintaining these proceedings by virtue of the fact that in proceedings in the District Court in Ennistymon in the said county, in which the present Plaintiffs sought to recover alleged arrears of water charges from one Thomas Collins of Townross or Tonarossa (being one of the townlands named in the 1877 lease) the Plaintiffs" claim was dismissed by order dated the 4th September, 1987. On appeal to the Circuit Court in Ennis, reserved judgment was delivered on the 6th June, 1989 dismissing the Plaintiffs" appeal on the ground that the said Thomas Collins, the Defendant therein, was entitled to his supply of water free of charge as provided in the said lease. Judgment was entered in the Circuit Court for the said Defendant and that judgment remains in full force."
And further by counterclaim each Defendant claimed a declaration that he is entitled under the 1877 lease to be supplied by the Plaintiff in the manner set out in the lease with a full supply (of water) of the best and purest description free of charge.
The history of the transfer from the lessees to the Plaintiff is as follows:-
(a) The Board of Guardians was established by the Poor Relief (Ireland) Act, 1838 with certain functions and duties as therein set forth.
(b) By the Local Government (Ireland) Act, 1898, rural District Councils were established and assigned the statutory functions of the Boards of Guardians.
(c) By the Local Government Act, 1925, rural District Councils were abolished and their functions transferred to County Councils. The duties of County Councils as sanitary authorities were performed by Boards of Public Health.
(d) By the County Management Act, 1940, Section 36, the powers, functions and duties of the Boards of Health were transferred to and vested in the relevant County Councils.
The 1877 lease demised
"The water supply and water works constructed in the year 1872 .... together with the several parcels of land and premises ..... called "The Burren Water Works" as therein more particularly described to hold the said demised premises with all future extensions of same for the term of nine hundred and ninety nine years at the yearly rent of one shilling and provided (inter alia)"
"that the lessees and their successors shall at all times keep up a full and proper supply of water of the best and purest description and without any deterioration in quality in the said water works and shall at all times supply same free of charge at the houses and places where the same is now supplied and shall in particular reasonably and fully supply with same the several tenants and inhabitants in the townlands and their sub-denominations of Muckinish, Bishop's Quarter, Acres, Dangan, Tonarossa, Lough Rask and Clareville free of charge and will make all necessary extensions for the purpose ...."
The lessees also covenanted (inter alia) for themselves and their successors not to "at any time during the term assign, demise or otherwise alien or dispose of the said water works or any extension of same or part with the possession or working of same but will at all times hereafter work and manage the same AND FURTHERMORE that the said lessees or their successors shall and will maintain in perfect and complete working order, repair and condition the said Burren Water Works and every part thereof and all improvements, alterations and extensions to be effected therein or in connection therewith ...."
The proceedings relied upon by the Defendants were District Court proceedings entitled The District Court, District Court Area of Ennistymon, District No. 12, between the County Council of the County of Clare, Plaintiff, and Thomas Collins, Defendant, in which proceedings the Plaintiff claimed to recover from the Defendant, Thomas Collins, the sum of £135 arrears of water charges for water supplied to the Defendant and which were claimed as a simple contract debt. This claim was dismissed on the merits by the District Court on the 2nd September, 1987. By notice the Plaintiff duly appealed to the judge of the Circuit Court at Ennis against the dismiss. The appeal came on for hearing on the 15th November, 1988 when, after a full hearing, judgment was reserved. On the 2nd June, 1989 the learned Circuit Court Judge delivered a reserved judgment in which he held against the Plaintiff and by order of that date the appeal was dismissed and the order of the District Court was affirmed. It is the order of the Circuit Court made in those proceedings (herein referred to as the Collins proceedings) which is relied on by the Defendants in their plea in the present case.
In the course of the hearing of the Collins proceedings, Counsel for the Plaintiff furnished the Circuit Court with written legal submissions dealing with the following:-
Lack of privity of contract; no public trust; alternatively, that any public trust had fallen into disuse and, charges were in accordance with the statutory provisions; estoppel of the Defendant by payment of water rates; invidious discrimination against other citizens of the county; and that the supply contended for did not exist at the time of the lease.
Further submissions were made in the course of the hearing by Counsel for the Plaintiff concerning (inter alia) the effect of Section 78 of the Government (Financial Provisions No. 2) Act, 1983, (referred to as the 1983 Act) and Section 81B enabling the charges to be made; estoppel; and that the 1983 Act overrode any question of a charitable trust and further relying upon constitutional arguments based upon the inequitable effect and discrimination against other ratepayers in the county.
The Defendant, Mr. Collins, gave some evidence in relation to his and his ancestors" title to the property and so far as he was aware of it, the history relating to the nature and extent of the water supplied to that property. He paid water rates or charges to the County Council despite his being aware that some deed granted free water to the people of the townland but when, after investigation, he eventually procured a copy of the deed, he thereafter refused to pay any water...
To continue reading
Request your trial-
Bula Ltd ((in Receivership)) and Others v Laurence Crowley and Others
...1996 1 IR 468 1996 2 ILRM 547 EDENFELL HOLDINGS LTD, RE 1999 1 IR 443 GALVIN v GRAHAM-TWOMEY 1994 2 ILRM 315 CLARE CO COUNCIL v MAHON 1995 3 IR 193 1996 1 ILRM 521 SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425 BARRY v BUCKLEY 1981 IR 306 CRINDLE INVESTMENTS v WYMES 1998 4 IR 567 MIN FOR AGR......
-
The Minister for Justice and Equality v Naoufal Fassih
...in question. (See for example the judgment of Carroll J. in respect of a claim for water charges in Clare County Council v Mahon [1995] 3 I.R. 193, where it was held that a decision of the Circuit Court to the effect that the defendants could claim the benefit of certain terms in a lease di......
-
The Commissioner for Valuation v The Valuation Tribunal
...had relied on chapter 10 of McDermott, Law on Res Judicata and Double Jeopardy (Butterworths, 1999); and Clare County Council v. Mahon [1995] 3 I.R. 193 in support of an argument that a decision on tax and rates for one year raises no estoppel for another year of assessment. In response, th......