Dun Laoghaire Rathdown County Council v Westwood Club Ltd

JudgeMr Justice Peter Charleton
Judgment Date29 May 2019
Neutral Citation[2019] IESC 43
CourtSupreme Court
Docket Number[S.C. No. 144 of 2017],Supreme Court appeal number: S:AP:IE: 2017: 000144 [2019] IESC 043 Court of Appeal record number: 2016 no 157 [2017] IECA 213 High Court record number: 2014 no 478 JR [2015] IEHC 800
Date22 May 2019

[2019] IESC 43

An Chúirt Uachtarach

The Supreme Court

Charleton J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Charleton J.

Finlay Geoghegan J.

Supreme Court appeal number: S:AP:IE: 2017: 000144

[2019] IESC 043

Court of Appeal record number: 2016 no 157

[2017] IECA 213

High Court record number: 2014 no 478 JR

[2015] IEHC 800

Dún Laoghaire Rathdown County Council
- and -
West Wood Club Limited

Judicial review – Jurisdiction – Recovery of rates – Appellant seeking judicial review – Whether a judicial review challenge may be mounted by way of defence in the Circuit Court to the claim for recovery of rates

Facts: The plaintiff/respondent, Dún Laoghaire Rathdown County Council, claimed rates over three years against the defendant/appellant, West Wood Club Ltd, a sports, tennis and leisure facility within their catchment area. At issue was whether what was effectively a judicial review challenge may be mounted by way of defence in the Circuit Court to the claim for recovery of rates. The Court of Appeal (Hogan J) decided the case on the basis of the absence of jurisdiction in the Circuit Court to decide the legal status of the rate levied by the county council.

Held by the Supreme Court (Charleton J) that the Circuit Court has no jurisdiction in judicial review and is not, in any event, subject to Order 84 of the Rules of the Superior Courts. Charleton J held that, by reason of law and by reason of the Constitution, the High Court alone is vested with that jurisdiction of supervising lower courts and the tribunal and administration within the public sphere. Charleton J held that it makes no sense to effectively strip the High Court of its supervisory jurisdiction over lower courts in judicial review and to require those other courts to consider areas of law which are outside both their jurisdiction and area of expertise.

Charleton J held that the judgment and order of the Court of Appeal should be affirmed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Wednesday 29 May 2019

At issue is whether what is effectively a judicial review challenge may be mounted by way of defence in the Circuit Court to a claim for recovery of rates. The Circuit Court has no jurisdiction in judicial review and is not, in any event, subject to Order 84 of the Rules of the Superior Courts.


Dún Laoghaire Rathdown County Council have claimed rates over three years against West Wood Club Limited, a sports, tennis and leisure facility within their catchment area. These remain unpaid. For both 2011 and 2012, the amount levied was €176,800 and for 2013, the amount was €173,274. The reason the amounts vary is because while rates were introduced by the Poor Relief (Ireland) Act 1838, and while premises which are rateable, now generally only business enterprises, have been valued on several occasions since then, the extent of the levy is essentially a political decision taken by elected representatives following an analysis of the needs of the area and the extent of the budget that is required. As successor to what the original legislation calls ‘the guardians of the union’ under section 61, the county council is required ‘to make and levy such rates as may be necessary on every occupier of rateable hereditaments in or arising within such union.’ Following on the striking of the rate, the public is notified by advertisement. As regards each rateable premises, an amount based on valuation and on the rate struck is demanded. The rates themselves, under section 78, are recoverable by civil bill in the Circuit Court which, in this respect, has unlimited monetary jurisdiction pursuant to section 22(3) of the Courts (Supplemental Provisions) Act 1961, fourth schedule at number 3.


It is the collection of the 2011 rate which is in issue here. In stating that, it becomes obvious that if there is a point of principle which renders that rate invalid, nothing in the alleged conduct of the county council has been any different for subsequent years.

The claim and the defence

The civil bill for the unpaid rates levied in 2011 is dated 14 October 2011. It simply claims the relevant sum and a modest €280 in costs which, as the document says, if paid, will result in the proceedings being stayed. A defence was delivered by West Wood on 20 April 2012, but subsequently amended on 7 October 2013. It denies, at paragraph 4, that the court ‘has jurisdiction to hear or determine this case.’ That is the very opposite of what is claimed by West Wood on this appeal. It claims that the county council operates sporting facilities which are not subject to rates and that, in consequence, by reason of a dominant position in the marketplace for sporting facilities, a breach of the Competition Act 2002 has occurred through unequal treatment. By providing sporting facilities and not levying rates on public facilities, the defence claims that State aid enables lower prices at such facilities, thus distorting competition contrary to Article 107 of the Treaty on the Functioning of the European Union. Apart from that, additional claims are made. It is argued that by collecting the rates, the county council is acting in a biased fashion and the striking of the rate and demand for payment ‘is tainted by bias … contrary to the principles of natural justice’. Hence, West Wood pursuing the logic of this, a counterclaim is raised for declaratory relief to the effect that the county council, in attempting to collect rates, is breaching anti-State aid rules and that West Wood should be awarded damages ‘for loss occasioned as a result’ of the ‘decision to institute these proceedings’. While an appeal as to the rates actually levied was lodged before the Valuation Tribunal, this has not proceeded. Eventually, when the rate collection case came on for hearing in the Circuit Court, of the judicial review type of points raised in their defence, West Wood proposed only to proceed with the State aid point to defend their liability to pay rates.


Essentially, in that regard, what probably is being said in that defence is the following: aid granted by a Member State of the European Union ‘which distorts or threatens to distort competition by favouring certain undertakings’ is, under Article 107 of the Treaty, ‘incompatible with the internal market’, but only ‘in so far as it affects trade between Member States’. By operating public facilities for tennis, swimming and similar sports catered for by West Wood, and by not charging these public facilities rates, the defence claims that this undercuts the resort by consumers to consequently more expensive commercial facilities which must charge more, like West Wood, thus distorting trade between undertakings in Ireland and in other European Union countries. It is difficult to see an effect on the international market. Reasoning out what might be the consequent finding as regards the claim for the recovery of rates as a simple contract debt: if West Wood succeeded, then within the huge budget of the county council, rates would also have to be somehow charged on public sporting facilities. Otherwise, prices for public sporting facilities would have to be at a higher level as if to reflect the need to pay rates. Private facilities may have lost customers in consequence of a distortion in competition - but this may apply only to those in other Member States - and they may be compensated for loss of profits; otherwise, the rate struck was wrong, since notionally rates should also be charged on public facilities and there would be a diminution in some very small amount on the actual rate struck. To put it in other words, the rate, on this analysis, was wrongly raised because it was wrongly calculated to enable aid to a local State enterprise.

Public law

There can be no doubt that the striking of the rate by the county council was an exercise in public law. Nor can it be uncertain that a decision by a local authority to provide sporting facilities comes within their public function. While there have been a multiplicity of judicial decisions over the last two decades as to when a particular administrative or quasi-judicial action comes within the sphere of public law, those have been essentially in the context of whether some minimal form of fairness of procedure ought to involve those substantially affected by what has been done; see in particular Shatter v Guerin [2019] IESC 9 and the cases cited in the judgments of O'Donnell and Charleton JJ. Striking a rate occurs pursuant to statute and through a local form of political democracy. It affects all of those who are ratepayers and the money raised is for the benefit of the area. While fairness of procedure does not apply, other forms of democratic participation supplant these and, nonetheless, the action comes within the realm of public law. In Eogan v University College Dublin [1996] 1 IR 390 at page 398, Shanley J set out a series of tests as to when an administrative or quasi-judicial decision attracted public law remedies. Of those, three out of the four propounded are directly relevant here:

(a) whether the decision challenged has been made pursuant to a statute;

(b) whether the decision maker by his decision is performing a duty relating to a matter of particular and immediate public concern and therefore falling within the public domain;

(c) where the decision affects a contract of employment, whether that employment has any statutory protection so as to afford the employee any ‘public rights’ upon which he may rely;

(d) whether the decision is being made by the decision maker whose powers, though not directly based on statute, depend on approval by the legislature or the Government for the continued exercise.


While not put either so concisely or categorically, similar principles can be derived from a reading of de Smith's Judicial Review...

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