Hackett v Smith

• Jurisdiction: Ireland
• Judgment Date: 15 May 1917
• Date: 15 May 1917
• Court: King's Bench Division (Ireland)

Hackett

and

Smith (1).

K. B. Div.

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.

1917.

Public Health Acts — “Owner” — Notice — Service on Receiver in minor matter — Abatement of Nuisance — Voluntary payment — “Imposition” — Lease — Covenant — Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), sects. 2, 110, 111, 112, 120.

The defendant held from the plaintiff (who was a minor ward of Court) certain premises under a lease which contained a covenant to. pay the rent “clear above all taxes, charges, and impositions whatsoever.” A nuisance existed upon the premises comprised in the lease, and the sanitary authority served a statutory notice under the Public Health (Ireland) Act, 1878, upon D., the receiver over the minor's estate as “owner,” calling for the abatement of the nuisance, and requiring certain works to be executed. The works were duly executed, and proceedings by civil bill were, with the leave of the Lord Chancellor, instituted in the name of the minor, as plaintiff, to recover the expense from the defendant.

Held, that D. was not the owner within sect. 2 of the Public Health (Ireland) Act, 1878; and that, therefore, there had been no service upon the owner of the notice prescribed by sect. 110 of the Act. Corporation of Bacup v. Smith, 44 Ch. D. 395, followed.

Held, also, by Campbell C.J. and Madden J., that the works were done voluntarily, and not under compulsion of the statute, and that the expense incurred was not an “imposition” within the terms of the defendant's lease.

Special Case, stated pursuant to the provisions of sect. 35 of the Civil Bill Courts Procedure Amendment Act (Ireland), 1864 (27 & 28 Vict. c. 99), for the opinion of the King's Bench Division, by Ronan L.J., sitting as judge of assize at the Summer Assizes, 1916, for the King's County.

The case set out as follows:—

“1. This case came before me at the Summer Assizes for the King's County, July, 1916, on an appeal from a decree of the County Court Judge, dated 21st March, 1916, for the sum of

£31 7d., costs and expenses. Owing to the number of cases and statutes to be cited, it was argued before me in Dublin by the consent of the parties.

“2. The civil bill was brought for £31 5s. 7d., money payable to the plaintiff under a covenant in the defendant's lease to pay the rent reserved ‘clear above all taxes, charges, and impositions whatsoever.’ For fuller details I refer to the civil bill.

“3. The defendant held from the plaintiff (who is a ward of Court) certain premises in Birr under a lease for lives or 31 years, dated the 13th July, 1857, containing a covenant to pay the rent ‘Clear above all taxes, charges, and impositions whatsoever.’ I held on the construction of the lease that if the landlord was compelled by process of law to pay the sanitary authority or to expend moneys on the premises under the provisions of sects. 110–120 of the Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), the tenant would be bound to indemnify him.

The cases will be found collected at pp. 188, 190, of Foa's Landlord and Tenant (5th edition), and in the notes to the sections in the 2nd edition of Vanston's Public Health Acts. The real question in this case is whether the expenditure was incurred under compulsion within the meaning of the authorities.

“4. The process is rather complicated, and is as follows:—

No. 1. The sanitary authority serve the notice under sect. 110.

No. 2. If the person served makes default, the sanitary authority bring the case before justices, sect. 111.

No. 3. The Court may make an order requiring him to ‘comply with the notice, or part thereof, or to abate the nuisance otherwise, sect. 112.

No. 4. If he fails to obey the order, the sanitary authority may do the work themselves and recover from him the expenses.

“5. If all these steps were taken with such a lease as I have held this to be, there would be no doubt that the landlord could have recovered from the tenant. See sect. 120.

“6. In Budd v. Marshall (1) the majority of the Court of Appeal held that if the order was made under sect. 112, the landlord might do the work himself and recover, and that he need not wait for No. 4 above. In Foulger v. Arding (2), at p. 704, Collins M.R. held that the landlord might proceed to do the work on being served with the notice (No. 1), and that he need not wait for the order to comply with it (No. 3). This is the farthest that any case has gone as far as I know.

“7. The facts in the present case are as follows:—

“8. By order of the Lord Chancellor, dated the 7th of July, 1913, Patrick Deignan was appointed receiver in the minor matter over the plaintiff's freehold estates, including the premises in the said lease.

“9. The notice under the Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52), set out in the schedule hereto was served personally on the said Patrick Deignan, who handed it to his solicitor, who in turn sent it to the solicitor having carriage in the minor matter. The notice was ultimately submitted to the Lord Chancellor for directions, and by order of the Lord Chancellor dated the 25th April, 1914, it was ordered that the receiver be at liberty to comply with the said notice, and take such proceedings against the defendant as he might be advised.

“10. In consequence of the receipt of the said notice and the said order of the 25th April, 1914, the works mentioned in the notice, which were works on the said premises, were carried out by the receiver on behalf of the owner at a total cost of £31 5s. 7d., which was admitted to be a reasonable sum.

“11. After considerable discussion, it was admitted, and I held, that if this notice, 1, was a notice complying with sect. 110 of the Public Health (Ireland) Act, 1878, as a notice to the plaintiff; and, 2, was duly served so as to entitle the sanitary authority to take proceedings and obtain an order against the plaintiff under sects. Ill and 112 of the Public Health (Ireland) Act, 1878, the plaintiff would be entitled to recover in the action on the ground that it was a payment under compulsion of the notice. Mr. Denning, for the defendant, contended that it was not

such a notice, and that it was not served on the plaintiff within the meaning of sect. 110, and that no order could have been obtained against him under sects. 111 and 112; and that the payment was not made under compulsion within the meaning of the authorities.

“12. Mr. Price, on behalf of the plaintiff, contended:—

“(a) That Patrick Deignan was the owner within the meaning of the Act.

“(b) That service upon him was good service upon the owner.

“(c) That the notice having, in fact, been transmitted to and acted upon by the true owner in the manner stated, there was good service.

“(d) That the works having been executed in consequence of the receipt of the notice, and in compliance with it, service of the notice was not necessary to bring the expenses within the covenant, and that service might be waived on behalf of the true owner.

“I express no opinion on the questions involved.

“13. All documents referred to are to be taken as incorporated in the case, and the Court is to be at liberty to draw inferences of fact.

“14. The question for the Court is whether on the facts stated, particularly having regard to the said notice and the facts as to the service of the notice, the said sum of £31 5s. 7d. is recoverable in this case.

“15. If the Court are of opinion the money is recoverable, the decree of the County Court Judge is to be affirmed, with £ costs of appeal. If the Court are of opinion that the money is not recoverable, the decree is to be reversed, and the civil bill dismissed on the merits, with £ costs below and £ costs of appeal.

SCHEDULE.

Public Health (Ireland) Act, 1878 (41 & 42 Vict. c. 52).

Form A. Notice requiring Abatement of Nuisance.

To Mr. Patrick Deignan, Bosse Row, Birr, Owner.

Take notice that under the provisions of the Public Health (Ireland) Act, 1878, the Birr Urban District Council, acting as urban sanitary authority, being satisfied of the existence of a nuisance at Duke Square, Birr, in the premises in the occupation of Messrs. Smyth Bros., arising from the insanitary condition of the said premises owing to the want of proper drainage and sanitary accommodation, do hereby require you within twenty-eight days from the service of this notice to abate the same, and for that purpose to [necessary works set out].

If you make default in complying with the requisitions of this notice, or if the said nuisance, although abated, is likely to recur, a summons will be issued requiring your attendance to answer a complaint which will be made to a Court of summary jurisdiction for enforcing the abatement of the nuisance, and prohibiting a recurrence thereof, and for recovering the costs and penalties that may be incurred thereby.

Dated this 26th day of July, 1913.

Signature of Officer of Sanitary Authority, Henry Barlow.

Personal service on July 28th at Rosse Row.

Signed, John O'Donohue, S.S.O.

Price, for the plaintiff:—

I submit—Even on the assumption that the notice in this case was not properly served upon the owner, once the notice was served upon the receiver he was under a prima facie liability to penal consequences which amounted to compulsion upon him: Andrew v. St. Olave's Board of Works (1); Foulger v. Arding (2). Under the English Acts, if the wrong person is served with the notice, he is liable to a penalty, and the provisions of the Irish Act are the same. By sect. 112 of the Public Health (Ireland) Act, 1878, the Court may make an order “on such person,” namely, “the person on whom a notice to abate a nuisance has been served” (sect. 111), requiring him to comply with the requisitions of the notice, and may impose a penalty of £5 upon him. Under both the Irish and English codes the man who gets the notice may, in fact, be...