Cleary v Cleary
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] IEHC 474 |
| Docket Number | 2016 No. 241 CA |
| Court | High Court |
| Date | 20 July 2017 |
[2017] IEHC 474
2016 No. 241 CA
THE HIGH COURT
Land & Conveyancing – Permissive occupation of property – Ejectment proceedings – Lack of defence – Judgment in default of defence – Want of jurisdiction – Appeal – S. 45 of the Civil Liability and Courts Act 2004 – S. 82 of the Civil Bill Courts (Ireland) Act 1851 – S. 67 of the Valuation Act 2001 – O. 5 of the Circuit Court Rules
Facts: The plaintiff/brother filed an appeal against the order of the Circuit Court for declining to grant judgment in default of defence against the defendant/sister in the ejectment proceedings on the ground that it did not have the jurisdiction to do so. The plaintiff argued that the High Court possessed the jurisdiction of the Circuit Court to make the order sought.
Mr. Justice Max Barrett allowed the appeal. The Court held that the plaintiff was entitled for the grant of judgment in default of the defence. The Court noted that the certification of rateable valuation obtained by the plaintiff under s. 67 of the Valuation Act 2001 had given the rateable valuation of the subject property, which placed the plaintiff's application within the jurisdictional limit of the Circuit Court. The Court held that the ejectment proceedings were properly instituted in the required form and all the details were set out clearly, which showed that the Circuit Court was possessed of the jurisdiction. The Court found that under s. 45 of the Civil Liability and Courts Act 2004, the Circuit Court possessed the jurisdiction as the rateable property of the subject property was less than €3m.
This is an appeal against a decision of the Circuit Court, on the basis of want of jurisdiction, not to grant judgment in default of defence in ejectment proceedings relating to a particular residence in Ballyfermot, County Dublin (the “Ballyfermot Property”). The court has previously granted the order sought and explains its reasons for doing so below.
The plaintiff and the defendant are siblings. In or around 1999, Mr Cleary and his parents gave Ms Cleary permission to reside at the Ballyfermot Property. In or around 2002, Ms Cleary moved out of the Ballyfermot Property and into social housing and then, again with the permission of Mr Cleary and his parents, returned to the Ballyfermot Property. At this time, Mr Cleary and his parents were the registered owners of the Ballyfermot Property. In 2010 and 2013 respectively, Mr Cleary's father and mother, unfortunately, passed away. In January, 2011 and again in March, 2014, Mr Cleary demanded possession of the Ballyfermot Property from his sister but, at the date of hearing of the within application in May, 2017, she remained residing in the Ballyfermot Property. In May, 2014, Ms Cleary entered an appearance in the within proceedings. Since that time, Mr Cleary has engaged in protracted attempts to obtain a defence from Ms Cleary. At last, in January, 2016, his solicitor wrote to Ms Cleary and advised that unless a defence was received within 14 days, Mr Cleary would issue a motion seeking judgment in default of defence. No defence has ever in fact been received. At end-January 2016, a motion for judgment in default of defence was issued. That came on for hearing before the Circuit Court at end-October 2016. The learned Circuit Court judge accepted that Mr Cleary's papers were in order but considered herself coerced as a matter of law into declining the order sought because, she held, the Circuit Court did not have jurisdiction to act in the matter. An appeal against that decision was entered and came on for hearing before this Court in May, 2017. Despite being duly served, Ms Cleary did not appear at the hearing of the appeal, nor did anyone appear on her behalf.
In the within appeal, which is a full re-hearing de novo, the High Court is possessed of the jurisdiction of the Circuit Court. Counsel for Mr Cleary was therefore required to advance one or more bases on which this Court, acting in its jurisdictionally constrained capacity, could hold, contrary to the finding of the learned Circuit Court judge in October, 2016, that it does have jurisdiction to make the order sought in the within proceedings. Counsel for Mr Cleary advanced three alternative bases on which the court could find itself possessed of the requisite jurisdiction to grant the order sought. The court finds that each of the three bases contended for offers a sound legal basis on which the court could as of the date of hearing make, and it made on that date, the order sought by Mr Cleary. Each of these three bases is considered hereafter.
Section 45 of the Civil Liability and Courts Act 2004, as commenced by the Civil Liability and Courts Act 2004 (Commencement) Order 2017 ( S.I. No. 2 of 2017) provides as follows:
‘(1) Section 2 of the Courts (Supplemental Provisions) Act 1961 is amended by the insertion, in subsection (1), of the following definition:
‘“market value” means, in relation to land, the price that would have been obtained in respect of the unencumbranced fee simple were the land to have been sold on the open market, in the year immediately preceding the bringing of the proceedings concerned, in such manner and subject to such conditions as might reasonably be calculated to have resulted in the vendor obtaining the best price for the land.'.
(2) The Third Schedule to the Courts (Supplemental Provisions) Act 1961 is amended, in column (3), by the substitution of –
(a) “market value” for “rateable valuation” in each place that it occurs, and
(b) “€3,000,000” for “€200” (inserted by section 2(1)(d) of the Act of 1981) in each place that it occurs.’
The effect of these ostensibly technical amendments is quite significant in the context of the within application. Unfortunately, it is necessary to go back to early-Victorian legislation and work forwards to the contemporary statutory framework to explain why this so.
ii. Civil Bill Courts (Ireland) Act 1851Civil Bill Courts (Ireland) Act 1851.
Enacted on 1st August, 1851, the Act of 1851 provides as follows, at s.79, of which the side-note reads ‘ Ejectment on Title’:
‘LXXIX….[T]he several Assistant Barristers and the Recorder of the County of the City of Dublin and the several Recorders herein mentioned, shall and they are hereby authorized and empowered to hear and determine within their respective Jurisdictions all Disputes and Differences respecting the Possession of any Lands, Tenements, or Hereditaments held under any Grant, Lease or other Instrument for any Term or Interest the Duration or Extent whereof when originally granted or created did not or shall not exceed Three Lives, without any Provision for the Renewal thereof, or a Term of Sixty-One Years determinable on Three Lives, or Three Lives with a concurrent Term of Years not exceeding Sixty-One Years, or a Term of Sixty-One Years absolute, and the yearly Rent reserved or payable in respect whereof under such Grant, Lease or other Instrument shall not exceed Twenty Pounds, and in respect of which no Fine exceeding Twenty Pounds shall appear on the Face of such Grant, Lease or other Instrument to have been paid on the granting or Execution of such Grant, Lease, or other Instrument, or held under a Parole Demise for a Term not exceeding Three Years at a Rent not exceeding Twenty Pounds, whether any Fine was paid upon the Creation of the same or not, or held for any Term or Tenancy from Year to Year at a Rent not exceeding such Amount as aforesaid; and every Person claiming such Possession may proceed by Civil Bill in the Court for the Division of the County or Riding wherein such Lands, Tenements or Hereditaments or any Part thereof shall be situate, for Recovery of such Possession.’
Section 79 remains in force. As can be seen, the jurisdiction it gave was relatively limited in respect of the interest, the annual rent and the nature of the title. As a result of s.53 of the County Officers and Courts (Ireland) Act 1877, considered later below, the words ‘ twenty pounds’ wherever they appear in s.79 of the Act of 1851 have been replaced by the words ‘ thirty pounds’.
Before turning to the Act of 1877, the court pauses to consider the expanded jurisdiction conferred, in the late-Victorian age, on what were then the Civil Bill Courts of Ireland, by s.1 of the Civil Bill Courts (Ireland) Act 1874, which provides as follows:
‘The chairmen of every county in Ireland shall have jurisdiction to try by civil bill actions for the recovery of any debt or demand not exceeding forty pounds alleged to be due as the balance of a partnership account, whether the balance shall have been ascertained or not previous to the issuing of the civil bill; and such chairmen shall, in addition to any jurisdiction in respect of lands and hereditaments which they already possess, also have jurisdiction to try by civil bill actions in which the title to any corporeal or incorporeal hereditament shall come in question, when the value of the land in dispute, or in respect of which an easement or license is claimed, or on, through, over, or under which such easement or license is claimed, shall not exceed twenty pounds by the year as valued under the Acts relating to the valuation of rateable property in Ireland; but the decision of the chairmen in any action in which the title to any corporeal or incorporeal hereditament shall be in question shall not be evidence of title between the parties or their privies in any other action relating to any other corporeal or incorporeal hereditament, although the...
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