O'Donnell v Dun Laoghaire Corporation

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 2108,1990 WJSC-HC 2084
• Court: High Court
• Docket Number: 8750P/1989,8750P/89
• Date: 01 January 1991

O'DONNELL v. DUN LAOGHAIRE CORPORATION

BETWEEN

DONAL O'DONNELL AND CATHERINE O'DONNELL

PLAINTIFFS

AND

CORPORATION OF DUN LAOGHAIRE

DEFENDANT

1990 WJSC-HC 2084

8750P/1989

THE HIGH COURT

Synopsis:

PRACTICE

Procedure

Plenary summons - Claim - Declaration - Delay in making claim - Principles applicable - Application of tests relating to judicial review - Abuse of process of court - Sanitary authority - Domestic water supply - Disconnection - Validity - Damages - Rules of the Superior courts, 1986, order 19, r. 29; order 84, r. 21 - Chancery (Ireland) Act, 1867, s. 155 - Local Government (Sanitary Services) Act, 1962, s. 7 - (1989/8750 P - Costello J. - 5/9/90) - [1991] ILRM 301

|O'Donnell v. Corporation of Dun Laoghaire|

Citations:

PUBLIC HEALTH (IRL) ACT 1878 S65(A)

LOCAL GOVT (SANITARY SERVICES) ACT 1962 S7

PUBLIC HEALTH (IRL) ACT 1878 S56(A)(9)

CHANCERY (IRELAND) ACT 1867 S155

RULES OF THE SUPREME COURT (IRL) 0.25 r5

RSC O.19 r29

O'DOHERTY V AG 1941 IR 659

MILITARY SERVICE PENSIONS ACT 1934

TRANSPORT SALARIED STAFFS" ASSOCIATION V CIE 1965 IR 180

PYX GRANITE CO LTD V MINISTER OF HOUSING & LOCAL GOVERNMENT 1960 AC 260

SUPREME COURT ACT 1981 (UK)

O'REILLY V MACKAMN 1983 2 AC 237

SUPREME COURT ACT 19811981 S 31

PROCEDURES AND PREROGATIVE IN PUBLIC LAW, WADE 1985 LQR 180

RSC O.84 r20(1)

RSC O.84 r20(4)

RSC O.21(1)

ADMINISTRATIVE LAW, WADE 5ED 523

CUSSEN, STATE V BRENNAN 1981 IR 181

FUREY, STATE V MIN DEFENCE & AG 1988 ILRM 89

DUBLIN CORPORATION V ASHLEY 1986 IR 781

CASWELL V DAIRY PRODUCE QUOTA TRIBUNAL 1990 2 AER 434

SUPREME COURT ACT 1981 S31(6)

PINE VALLEY DEVELOPMENTS LTD V MINISTER FOR THE ENVIRONMENT 1987 ILRM 747

RULES OF SUPREME COURT O.53 (UK)

RSC O.84

RSC O.84 r21

1 Judgment of Mr. Justice Costello delivered the 5th day of September 1990

2 Having concluded, for the reasons given in my judgment of the 17th July, 1990, that the managerial orders which fixed water charges in 1983, 1984 and 1985 were ultra vires but that the resolution of the elected members fixing charges for the year 1988 was valid, I resumed the hearing of this case and heard evidence on the remaining issues. These were:-

3 (i) Whether the Corporation's 1988 decisions to disconnect the plaintiffs" water supply were ultra vires;

4 (ii) Whether the plaintiff, Mr. O'Donnell, was barred from claiming declaratory relief;

5 (iii) Whether the plaintiffs, or either of them, are entitled to damages.

(i) THE DECISIONS TO DISCONNECT

6 The Corporation's decision to introduce water charges in 1983 met with widespread, determined and organised opposition - opposition which in numerous cases took the form of a refusal to pay them. The Dun Laoghaire Corporation, like other local authorities similarily placed, had no alternative but to institute legal proceedings and in the following years many hundreds of civil processes were issued against recalcitrant householders. For a number of reasons proceedings by means of District Court action proved a slow and cumbersome process and the Corporation was faced not only with a fall in its revenue but also with the grievance of whose householders who having paid water charges watched others escape liability, apparently with impunity. As a result when water charges were once again imposed in 1988 it decided to activate the power conferred by Section 65A of the Public Health (Ireland) Act, 1878 (inserted by Section 7 of the Local Government (Sanitary Services) Act 1962) which provided by sub-section (9) that a water authority could disconnect a supply of water "in respect of which a charge under this section remains unpaid after the expiration of two months after the charge has become payable" and further authorised the authority to impose fees to cover the cost of disconnection and subsequent re-connection.

7 On the 15th June 1988 the Corporation wrote to the plaintiff, Mr. O'Donnell, a letter headed "Notice re disconnection of water supply". This letter referred to the arrears of charges which it was claimed were owed by Mr. O'Donnell, namely those payable in 1983, 1984, and 1985 amounting to £210 and the first instalment for the year 1988 amounting to £62.50., and went on:-

"Until recently this Corporation has concentrated on legal proceedings to obtain payment of arrears outstanding. However, in the last few months a number of householders have been proceeded against by disconnecting their water supply. It is now proposed to step up substantially the disconnection of supply. Accordingly, the Corporation hereby gives you notice that if the amount outstanding is not paid within the next 7 days your water supply will be disconnected without further notice."

8 It concluded by warning the plaintiff that disconnection and further re-connections would involve him in further substantial costs.

9 I draw attention to the following matters:-

10 (a) The decision to operate its Section 65A powers was taken by the Corporation for the purpose of enforcing payment of the sums it believed to be due for water rates. It was taken bona fide by the Corporation for the purpose of securing compliance with the law.

11 (b) In the case of Mr. O'Donnell the June decision to disconnect his water supply was taken to enforce payment of the sum of £272.50 which it was claimed he then owed. In fact, because the 1983, 1984 and 1985 orders were invalid Mr. O'Donnell did not owe the sum of £210 in respect of the charges for those years. Because the 1988 charges were valid and the first instalment had fallen due on the 15th March there was at that time only a sum of £62.50 due by him to the Corporation.

12 The Corporation disconnected the plaintiff's water supply and wrote to him on 12 July to tell him they had done so and required payment of £60 re-connection fee along with payment of the arrears. With the knowledge and consent of Mr. O'Donnell persons who have not been named illegally re-connected his supply. The Corporation disconnected it again on 3rd August but once again it was illegally re-connected.

13 On the 15th July the second instalment of the 1988 charges became payable. On the 10th October the Corporation wrote again to Mr. O'Donnell. It claimed arrears amounting to £335 (that is the 1983, 1984 and 1985 charges and the whole of the 1988 charges) and warned again that unless payment was made his water supply would be cut off. This warning went unheeded and the water was cut off at the beginning of November. On 3rd November a claim was made for the arrears (£335) and disconnection and re-connection fees of £430. Again Mr. O'Donnell took the law into his own hands and with his consent some persons without the Corporation's authority re-connected the supply. On the 9th November it was once again disconnected by the Corporation, this time using methods which effectively prevented unauthorised re-connection.

14 I draw attention to the following matters:

15 (a) The October decision to disconnect was taken to enforce payment of the sum of £335. In fact the only amount properly owing at that time was £125 (the 1988 charges).

16 (b) When disconnection took place in November 1988 the 1988 charges were in arrears for more than two months.

17 (c) Since November 1988 the Corporation has claimed payment of £430 disconnection and re-connection fees by virtue of Section 65A. But if the June decision to disconnect was invalid and if the October decision to disconnect was invalid then this claim is not sustainable because the fees are then claimed for work performed under an unauthorised decision.

18 It was a pre-condition of the exercise by the Corporation of its Section 65A powers of disconnection that water charges were in arrears for two months when the power was exercised. If no charges were in arrears at the time of disconnections then the Corporation would have lacked statutory authority for its decision to disconnect and it and the actions taken subsequently to implement it would have been ultra vires. In fact, when the June decision was taken the first instalment of the 1988 charges was two months in arrears and when the October decision was taken all the 1988 charges were two months in arrears. But it does not follow that these decisions were intra vires because it is open to the plaintiffs to claim, as they have done, that although the statutory power to decide to disconnect may have existed in June and again in October 1988 the excercise of that power was invalid because it was exercised ultra vires. I think this submission is correct. The power to disconnect was a discretionary one to be exercised in accordance with the statute and even though the statutory pre-condition to its exercise is shown to have existed it is still possible that its dscretionary powers were exercised in an ultra vires manner. And I think that is what happened both in June and October, 1988. The Corporation was fully entitled to operate Section 65A for the purpose of enforcing payment of water charges which were lawfully due, but, both in June and October, it decided to exercise the power to enforce payment of sums which were not lawfully due (namely, the 1983, 1984 and 1985 charges). As I think the section did not empower the Corporation to utilise the section for such a purpose it follows that these two decisions were ultra vires.

19 It also follows from these conclusions, and from those which were contained in my judgment of the 17th July last, that unless some legal bar exists (a subject to be considered in a moment) then Mr. O'Donnell is entitled to a declaration (a) that the 1983, 1984, and 1985 managerial orders were ultra vires and invalid, (b) that the June and October 1988 decisions to disconnect were ultra vires and invalid, (c) that he is not indebted to the Corporation for the sum of £210 (being the 1983, 1984 and 1985 charges), and (d) that he is not indebted to the Corporation in the sum of £410, being the...