County Dublin County Council v HM Postmaster-General

• Jurisdiction: Ireland
• Judge: K. B. Div
• Judgment Date: 19 December 1913
• Court: King's Bench Division (Ireland)
• Docket Number: (1913. No. 1350.)
• Date: 19 December 1913

County Dublin County Council

and

His Majesty's Postmaster-General (1).

K. B. Div

(1913. No. 1350.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1914.

Telephone service — Permission given by County Council to National Telephone Company, Limited, to erect poles, paying rent for wayleave, and granting special telephone facilities to council — Purchase of Telephone Company's plant, property, and assets, by the Postmaster-General — Postmaster-General not bound by agreement for rent and facilities — Telegraph Act, 1878, ss. 3, 4, 5 — Telegraph Act, 1892, ss. 4, 5 — “Difference.”

Held, that the terms of the agreements between the Telephone Company and the road authority were applicable solely to the state of things which continued under the licence from the Postmaster-General to the company, and did not bind the Postmaster-General as assignee of the company; that the clause in the purchase-agreement “subject to all wayleave and other rentals, contracts, and burdens,” &c., had no applicability to the relations of the Postmaster-General with the road authority, these relations being regulated by statute and not by the agreements between the road authority and the company; that no right of action was given by sect. 4 of the Telegraph Act, 1892, any rights under that section being enforceable only in the manner provided by sects. 4 and 5 of the Telegraph Act, 1878, for the determination of differences; and that consequently the plaintiffs’ action should be dismissed.

Action tried by Dodd, J., without a jury, upon the 28th and 29th November and 1st December.

The matters in issue between the parties appear sufficiently from the pleadings.

The plaintiffs’ claim as endorsed on the writ of summons was as follows:—

The Plaintiffs’ Claim is for—

1. A declaration that by reason of the purchase of the plant, property, and assets of the National Telephone Company, Ltd., and under the agreement for such purchase, dated the 2nd day of February, 1905, made between His Majesty's then Postmaster-General of the first part and the National Telephone Company, Limited, of the other part, the defendant is bound by the following contracts:—

(A) Agreement, dated 29th September, 1896, made between Robert T. Blackburne and the National Telephone Company, Limited.

(B) Agreement, dated 12th May, 1898, made between Robert T. Blackburne and the National Telephone Company, Limited.

(C) Agreement, dated 25th April, 1902, made between the plaintiffs and the National Telephone Company, Limited.

(D) Agreement, dated 7th March, 1910, made between the Plaintiffs and the National Telephone Company, Limited.

2. Specific performance of said contracts.

3. Damages for breaches of said contracts.

4. An injunction to restrain further breaches of the said contracts or any of them.

The defendant applied to the King's Bench Division to set aside the writ on the ground that the Crown could not be sued as represented by the Postmaster-General. The King's Bench Division refused the motion with costs. On appeal to the Court of Appeal the decision of the King's Bench Division was affirmed with the variation that the costs of both parties, below and on the appeal, were made costs in the cause.

The plaintiffs then delivered a statement of claim which set out as follows:—

1. By an agreement in writing, bearing date the 29th day of September, 1896, and made between Robert T. Blackburne, Secretary of the county Dublin Grand Jury, of the one part, and the National Telephone Company, Limited, of the other part, the said Robert T. Blackburne granted to the said company leave and licence to fix and maintain telephone poles already erected by them in that portion of the county Dublin, in situations approved of and otherwise to the satisfaction of the county surveyor, over which the county Dublin Grand Jury were at the date of the said agreement the road authority, and thereby consented to the exercise by the said company of such of the powers of the Postmaster-General as the said company might be authorized to exercise in pursuance of the Telegraph Act, 1892, the said company undertaking (inter alia) that so long as the said poles, or any of them, should remain upon the said roads, they would provide and keep in good order one exchange connection free of cost to the office of the county surveyor, and one exchange connection free of cost to the office of the secretary of the said Grand Jury, within the city of Dublin.

2. By a further agreement in writing bearing date the 12th day of May, 1898, and made between the said Robert T. Blackburne of the one part, and the National Telephone Company, Limited, of the other part, expressed to be supplemental to the agreement dated the 29th day of September, 1896, called the principal agreement, pleaded in paragraph I hereof, the provisions of the said principal agreement were applied to certain poles to be erected between Dublin and Howth, in positions to be approved of by the county surveyor, and otherwise to his satisfaction; and the said company thereby agreed that so long as the said poles, or any of them, should remain upon the said roads they, the said company, would provide and keep in good order one exchange connection with desk instrument and extra receiver free of cost to the office of the solicitor for the county Dublin Grand Jury, and provide an additional desk instrument free of cost in the office of the county surveyor.

3. Prior to their execution, the terms of the aforesaid agreements had been approved of by the Finance Committee of the county Dublin Grand Jury, and the said Robert T. Blackburne had been authorized by a resolution of the said committee to grant the leave and licence contained in said agreements on behalf of the said Grand Jury.

4. In accordance with the terms of the said agreements the National Telephone Company, Limited, fixed and maintained the telephone poles therein mentioned, and provided one exchange connection and an additional desk instrument in the office of the county surveyor, one exchange connection to the office of the secretary of the Grand Jury, and one exchange connection with desk instrument and extra receiver to the office of the solicitor for the Grand Jury, and maintained the same in good order.

5. Under the provisions of the Local Government (Ireland) Act, 1898, the plaintiffs were constituted as a corporate body, and entrusted with the management of the administrative and financial business of the county of Dublin, including the business of the Grand Jury of the said county; the powers and duties of the said Grand Jury were conferred and imposed upon the plaintiffs; the property, debts, and liabilities of the said Grand Jury passed to and vested in the plaintiffs; and the existing officers of the said Grand Jury, including the secretary, solicitor, and county surveyor, became the officers of the plaintiffs, as by the said Act provided.

6. The rights and liabilities of the county Dublin Grand Jury, under the agreements set forth in paragraphs 1 and 2 hereof, were thus vested in the plaintiffs; and the National Telephone Company, Limited, by virtue of the leave and licence granted by such agreements, continued to maintain the telephone poles and to provide and maintain the telephone exchanges free of cost as provided by said agreements.

7. By an agreement in writing, bearing date the 25th day of April, 1902, and made between the plaintiffs of the one part, and the National Telephone Company, Limited, of the other part, expressed to be supplemental to the agreement dated the 29th day of September, 1896, called the principal agreement, pleaded in paragraph 1 hereof, the provisions of the said principal agreement were applied to all telephone poles erected, or to be erected, between the 25th day of October, 1900, and the 31st day of December, 1903, and the said company thereby agreed to pay to the plaintiffs the sum of one shilling per annum, for each pole erected, or to be erected, by them in the county Dublin, between the said dates, the rent for each pole to run from the date of its erection, and the said company undertook to supply, if required, one exchange connection at the residence of the secretary of the council, and one exchange connection at the residence of the county surveyor, and to charge for each of the said connections one half only of the ordinary rates charged to customers of the company.

8. By a further agreement in writing, bearing date the 7th day of March, 1910, and made between the plaintiffs of the one part, and the National Telephone Company, Limited, of the other part, expressed to be supplemental to the agreements hereinbefore pleaded, the terms of the agreement pleaded in the preceding paragraph hereof were applied to all wayleaves granted by the plaintiffs to the said company subsequent to the 31st day of December, 1903, and the said company thereby (inter alia) agreed to pay to the plaintiffs the annual rent of one shilling for each wayleave for a pole granted by the plaintiffs between the 31st day of December, 1903, and the 31st day of December, 1911, the said rent for each pole to commence to run from one mouth after the date of the consent to the erection of such pole being given by the county surveyor or by the plaintiffs.

9. Various poles were from time to time erected by the National Telephone Company, Limited, under the licence contained in the said agreements of the 25th April, 1902, and 7th March, 1910. The wayleaves payable in respect of such poles under the said agreements were duly paid by the said company to the plaintiffs, and in accordance with their undertaking the said company provided one exchange connection at the residence of the secretary of the county council, and one exchange connection at the residence of the county surveyor, and charged in respect thereof one-half only of the ordinary rates...