Irish Permanent Building Society v Caldwell and Others
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barrington |
| Judgment Date | 05 December 1980 |
| Neutral Citation | 1981 WJSC-HC 674 |
| Docket Number | ???query?????? |
| Court | High Court |
| Date | 05 December 1980 |
1981 WJSC-HC 674
THE HIGH COURT
BETWEEN:
BUILDING SOCIETY
Registration
PRACTICE
Parties
STATUTE
Powers
Judgment of Mr. Justice Barrington delivered the 5th day of December 1980
The first named plaintiff is a Building Society which has it registered office at Lower O'Connell Street in the City of Dublin. It is the largest Building Society in the State with assets of more than £400,000,000 and it transacts about 40% of the Building Society business carried on in the State.
The second named plaintiff is an agent of the first named plaintiff, he is a citizen of Ireland, and became a member of the second named defendant (the Irish Life Building Society) in the circumstances hereinafter described. He was added as a plaintiff during the course of the hearing at the request of Counsel for the plaintiffs to facilitate the plaintiffs in making out the case already pleaded by them in their statement of claim as amended, but not so as to authorise them to make a new case arising out of his membership of the Irish Life Building Society.
The first named defendant was the registrar of Building Societies at the date of the institution of these proceedings.
The second named defendant is a body registered as a Building Society by the registrar of Building Societies on the 4th January, 1979.
The third named defendant is the Irish Life Assurance Company Limited and is a corporation carrying on the business of insurance. Its registered office is at the Irish Life Centre, Lower Abbey Street in the City of Dublin. It has assets of approximately £700,000,000 and, like the first named plaintiff, it ranks as one of the major financial institutions in our society. Approximately 9O% of its shares are owned by the State.
The last ten defendants are the founder members of the Irish Life Building Society and are also executives of the Irish Life Assurance Company Limited.
In these proceedings the plaintiffs claim a declaration that the second named defendant (the Irish Life Building Society) is not a "Building Society" within the meaning of the Building Societies Act 1970; a declaration that the purported registration of the rules of the Irish Life Building Society by the registrar of Building Societies and the issue of a certificate of incorporation by the registrar of Building Societies to the Irish Life Building Society are null and void; a declaration that the registration of the second named defendant under the name of the "Irish Life Building Society" is undesirable and not in the interests of the orderly and proper regulation of Building Society business; a declaration that the rules of the Irish Life Building Society do not comply with the requirements of the Building Societies Act 1976; an injunction restraining the defendants (other than the first named defendant) from carrying on Building Society business within the State and further and other relief.
The defendants claim that the plaintiffs have no locus standi to seek the relief sought in these proceedings.
In fact after the delivery of the statement of claim on the 23rd October, 1979 the defendants brought a motion pursuant to Order 19 Rule 28 of the Rules of the Superior Courts for an order directing that the plaintiffs pleadings herein be struck out and the action dismissed on the grounds that the pleadings disclosed no reasonable cause of action or that the action was frivolous or vexatious. At that stage the plaintiffs statement of claim contained no allegation that the plaintiffs had suffered or would suffer any damage as a result of the registration of the second named defendants as a Building Society or of the grant of a certificate to them.
Subsequently the plaintiffs amended their statement of claim by the addition of the following paragraph-
"The plaintiff and its members have suffered and will continue to suffer loss and damage by reason of the registration of the second named defendant as a Building Society, by reason of each of the breaches of the Building Societies Act 1976hereinbefore referred to, and by reason of the failure of the first named defendant to administer, apply and have regard to the provisions of the said Act in and about the purported registration of the second named defendant".
When however the defendants motion came on for hearing before Mr Justice Keane there was no plea in the plaintiffs statement of claim that the plaintiffs had suffered or would suffer damage.
The defendants were therefore in a position to plead before Mr. Justice Keane that the statement of claim contained no plea that the plaintiffs had suffered or would suffer damage as a result of the registration of the Building Society or that any proprietary or other right peculiar to them had been or would be infringed as a result of the registration of or the grant of a certificate to, the second named defendant. They submitted that the Building Societies Act 1976plainly entrusted the control and regulation of Building Societies to the registrar of Building Societies and that it contained provisions for the prosecution of persons who acted in contravention of the Act. THE KECISTRA; THEY SUBMITTED, WAS THE ONLY PERSON COMPETENT TO POLICE THE ACT.
The defendant further submitted that where a Statute prohibited the doing of a particular act affecting the public, that no person had a right of action against another merely because he had done the prohibited act. They submitted that it was incumbent on the party complaining to allege and prove that the violation of the Statute caused him some peculiar injury beyond what had been sustained by the public at large as a result of the infringement of the law. They pleaded that, in the absence of any allegation in the statement of claim that the plaintiffs had suffered any peculiar injury, the proceedings were on their face not maintainable. In support of these submissions the defendants relied in particular on the judgment of the House of Lords in Gouriet .v. Union of Post Office Workers ( 1978 Appeal Casespage 435) and on Moore and others .v. Attorney general and Others 1930 Irish Reports page 471.
Mr. Justice Keane, with some hesitation, refused to strike out the Plaintiffs proceedings principally on the grounds that the case raised difficult and complex questions of law which deserved full and unhurried consideration.
Since the motion before Mr. Justice Keane the plaintiffs have amended their statement of claim in the manner indicated. At the hearing before me the plaintiffs adduced evidence to show that while the total funds available for investment in Building Societies might vary from year to year, and while the long term trend was for these funds to increase, there was very little any one Building Society could do in any one year to influence the total amount of funds available for investment in Building Societies collectively. The total amount of funds available for investment in Building Societies would depend upon the state of the economy; upon complex decisions in relation to interest rates made by the Central Bank the Commercial Banks and the Minister for Finance; and upon the housing policies of the Minister for the Environment. Under these circumstances any percentage increase in market share of the funds available for investment in Building Societies made by one Building Society would likely be made at the expense of other Building Societies. Professor Bristow, who is Associate Professor of Economics in Trinity College, Dublin stated that there was very little any one individual Building Society could do to attract new funds into the Building Society market and that therefore any percentage gain made by one Building Society would be at the expense of others. As the Irish Permanent Building Society controlled 40% of the market he offered the opinion that if the new Building Society was a success, 40% of its investment funds would consist of monies which would otherwise have gone to the Irish Permanent Building Society. One has not to go all of the way with Professor Bristow to accept that, in the light of the Building Society market for funds as described by him and by Mr. O'Flynn, the new society, if a success, would probably deflect monies which would otherwise have gone to the Irish Permanent Building Society.
Whether the national interest would be served by more Building Societies or by fewer Building Societies is not the concern of this Court. In view however of the picture painted of the market for funds for investment in Building Societies it is clearly a matter in which the plaintiffs have an ecconomic interest. Whether such an ecconomic interest is sufficient to give them locus standi to bring these proceedings is a different matter.
The plaintiffs however go further than this. They say that they are the leading member of a small group of co-operative societies now governed by the Building Societies Act 1976. These Societies, they say, have been traditionally autonomous co-operative societies consisting of members of comparatively modest means who, by their collective efforts as savers and borrowers have helped one another to build houses. The new society, they say, is not an autonomous society but is the "creature" or "subsidiary" of a large financial institution outside the Building Society movement. If, they say the Irish Life Assurance Company Limited can,...
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