Dermot Kelleher v The Electricity Supply Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Brian O'Moore |
| Judgment Date | 16 July 2021 |
| Neutral Citation | [2021] IEHC 497 |
| Court | High Court |
| Docket Number | [2020/1634 SS] |
[2021] IEHC 497
[2020/1634 SS]
THE HIGH COURT
Case stated – Unconditional offer – Acquisition of Land (Assessment) of Compensation Act 1919 s. 5(1) – Property Arbitrator directed to state a special case on a question of law – Whether a letter constituted a valid unconditional offer for the purposes of s. 5(1) of the Acquisition of Land (Assessment) of Compensation Act 1919
Facts: The respondent, the Electricity Supply Board (the ESB), on the 16th of August 2016, served a wayleave notice on the claimant, Mr Kelleher, pursuant to s. 53 of the Electricity (Supply) Act 1927. On the 30th of August 2016, Mr Kelleher submitted a claim for compensation to the ESB. On the 5th of October 2016, Mr Boyle was nominated as Property Arbitrator in this dispute. On the 8th of February 2017 the ESB made an offer to Mr Kelleher, in writing. On the 21st of June 2017, the ESB made a further offer to Mr Kelleher. Neither of these offers were accepted by Mr Kelleher. On the 28th of June 2017, Mr Boyle recused himself from acting as Property Arbitrator. On the 26th of July 2017, Mr Good was nominated to act as Property Arbitrator. The hearing before Mr Good commenced on the 17th of October 2017. The ESB brought judicial review proceedings to compel Mr Good to state a case to the High Court on three questions. The three questions posed by Mr Good, as directed by Quinn J, were as follows: (i) Does the letter dated 8th February 2017 constitute a valid unconditional offer for the purposes of s. 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919? (ii) Does the letter dated 21st June 2017 constitute a valid unconditional offer for the purposes of s. 5(1) of the 1919 Act? (iii) If either or both of the letters of 8th February 2017 and 21st June 2017 constitute valid unconditional offers for the purposes of s. 5(1) of the 1919 Act, can such offer or offers be accepted at any time prior to the making of an award by the Property Arbitrator?
Held by O’Moore J that the letter of the 8th of February 2017 did not have the required clarity and certainty to qualify as an unconditional offer within the meaning of s. 5(1) of the 1919 Act. O’Moore J concluded that the letter of the 21st of June 2017 was an unconditional offer within the meaning of s. 5(1). O’Moore J came to the view that an unconditional offer can be accepted at any time prior to the making of an award by the Property Arbitrator.
O’Moore J answered question one in the negative, question two in the affirmative, and question three in the affirmative.
Case stated.
JUDGMENT of Mr. Justice Brian O'Moore delivered on the 16th day of July, 2021.
The issues in this case are very similar to those which I decided in McCarthy v. Electricity Supply Board. Indeed, in some instances, the issues are identical. This is not surprising, as the two cases originated in a judgment of Quinn J. of the 14th of December 2018. The two cases travelled together, and were heard together by me over a two day period in May 2021.
Indeed, so closely entwined are the two proceedings that the form of the hearing involved Counsel for the ESB making a single speech in respect of both cases stated to me, Counsel for the Claimant landowners making a single speech in respect of both matters, and Counsel for the ESB making a single address in reply.
My judgment in McCarthy sets out the relevant legislation and the relevant portion of the judgment of the Supreme Court (Keane J.) in Manning v. Shackleton [1996] 3 IR 85. I do not intend to replicate those authorities here. Equally, I do not intend to repeat slavishly in this judgment the rationale for my decisions in McCarthy.
For all these reasons, this judgment should be read in conjunction with my decision in McCarthy. Having said that, the facts of this case differ from those in McCarthy, though not materially so. The questions posed in this case are broader than those posed in McCarthy. Finally, some limited further arguments were made in this case stated on behalf of the landowner, which were not deployed in McCarthy and I will consider those in this decision; to be specific the view taken by the Property Arbitrator in this case (Mr. Paul Good) is one which I will analyse for the purpose of my decision on the second question posed to me by him.
On the 16th of August 2016 the ESB served a wayleave notice on Mr Kelleher pursuant to Section 53 of Electricity (Supply) Act 1927. On the 30th of August 2016 Mr. Kelleher submitted a claim for compensation to the ESB. On the 5th of October 2016 Mr. Desmond Boyle was nominated to as Property Arbitrator in this dispute.
On the 8th of February 2017 the ESB wrote to Mr. Kelleher in the following terms:-
“We refer to this claim in which the Arbitration was due to commence on the 14th of February 2017 although the Arbitrator has now proposed moving the hearing to the 21st of February.
“Pursuant to Section 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919, the Electricity Supply Board hereby makes an unconditional offer to pay the sum of [redacted] in full and final settlement of your client's claim for compensation, and to pay the reasonable costs incurred by your client up to the date of this letter plus reasonable cost to cover the taking of advice in respect of this offer, those costs to be taxed in default of agreement.”
On the 21st of June 2017 the ESB wrote again, this time in these terms:-
“We refer to the above reference to arbitration, which is listed for hearing on 28th to 30th June 2017.
“Pursuant to Section 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919 the Electricity Supply Board hereby makes an unconditional offer to pay the sum of [redacted] in full and final settlement of your client's claim for compensation.
“In addition, the Electricity Supply Board hereby makes an unconditional offer to pay:-
(1) The amount as directed by the Property Arbitrator to be paid in respect of your client's costs of and incidental to, the preparation of the claim (i.e., the pre-reference costs); and
(2) The amount as directed by the Property Arbitrator to be paid in respect of your client's costs of the reference to arbitration, whether as taxed by the Property Arbitrator or as taxed in the manner directed by the Property Arbitrator; and
(3) The reasonable costs incurred by your client in taking advice in relation to this offer.”
Neither of these offers were accepted by Mr. Kelleher.
While the hearing before Mr. Boyle commenced on the 28th of June 2017, he recused himself that day from acting as Property Arbitrator. On the 26th of July 2017 the current Arbitrator, Paul Good, was nominated to act as Property Arbitrator in this dispute.
The hearing before Mr. Good commenced on the 17th of October 2017. On that day, Mr. Kelleher applied for a preliminary ruling on the issue of whether either the letter of 8th of February 2017 or the letter of 21st of June 2017 constituted a “unconditional offer” within the meaning of Section 5 of the Acquisition of Land (Assessment of Compensation) Act 1919.
On that date, Mr. Good made a ruling that neither letter constituted a valid unconditional offer within the meaning of Section 5 of the 1919 Act. I will return to his reasons in due course.
After deciding the issue raised by Mr. Kelleher, the Property Arbitrator was asked by the ESB to state a case for the opinion of this Court pursuant to the provisions of Section 6 of the 1919 Act. He refused to do so, as he felt the issue was a matter of fact and not one of law, and therefore could not properly be the subject of a case stated to this Court.
The ESB brought judicial review proceedings to compel Mr. Good to state a case to this Court on three questions. Mr. Good did not participate in the hearing before Quinn J. and Mr. Kelleher did not oppose the relief sought by the ESB. Peculiarly, despite the fact that the third question directed by Quinn J. was originally one that Mr. Kelleher's legal team felt should be asked, it is now submitted to me by Mr. Kelleher that this is a moot and it should not be answered by me.
The three questions posed by Mr. Good, as directed by this Court, are as follows:-
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(i) Does the letter dated 8th February 2017 constitute a valid unconditional offer for the purposes of subsection 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919?
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(ii) Does the letter dated 21st June 2017 constitute a valid unconditional offer for the purposes of subsection 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919?
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(iii) If either or both of the letters of 8th February 2017 and 21st June 2017 constitute valid unconditional offers for the purposes of subsection 5(1) of the Acquisition of Land (Assessment of Compensation) Act 1919, can such offer or offers be accepted at any time prior to the making of an award by the Property Arbitrator?
As I have set out in McCarthy, pre-reference costs are considered to be part of the compensation awarded by the Property Arbitrator. This is so despite the fact that they include such matters as might ordinarily be captured by an award of legal costs; so, for example, they involve the preparation of the claim, which is ultimately heard by the Property Arbitrator.
The first offer made by the ESB is unclear as to whether or not the pre-reference costs are included in the redacted amount offered in compensation, or whether they are caught by the offer by the ESB to pay “the reasonable costs incurred by [Mr. Kelleher] up to the date of” the letter. In this regard, the letter of the 8th of February 2017 is markedly different to the letter of the 21st of June 2017, which makes it plain that the sum offered in compensation does not include the pre-reference...
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