John E Shirley and Others v A O Gorman and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 27
• Court: High Court
• Date: 31 January 2006

[2006] IEHC 27

THE HIGH COURT

Record Number: No. 11774P/2000

SHIRLEY & JES HOLDINGS LTD v A. O'GORMAN & COMPANY LTD & ORS

Between:

John E. Shirley, JES Holdings Limited and Lucy Shirley

Plaintiffs

And

A. O'Gorman & Company Limited, Ireland and The Attorney General

Defendants

LANDLORD & TENANT (AMDT) ACT 1984 S7

IARNROD EIREANN v IRELAND 1996 3 IR 321 1996 2 ILRM 500

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, RE 2000 2 IR 360

CONSTITUTION ART 40.3

CONSTITUTION ART 43

CONSTITUTION ART 43.2.2

CONSTITUTION ART 26 OF THE EMPLOYMENT EQUALITY BILL, RE 1996 1997 2 IR 321

LANDLORD & TENANT (AMDT) ACT 1984 S7(4)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S8

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(1)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S10

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S2

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(2)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S10(2)

LAND ACT 1903

LAND ACT 1923

LANDLORD AND TENANT (GROUND RENTS) ACT 1967 S26

LANDLORD & TENANT (AMDT) ACT 1980 S35

PLANNING & DEVELOPMENT ACT 2000

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)

LANDLORD & TENANT ACT 1931 PART VI

LANDLORD & TENANT ACT 1958 S18

WYLIE IRISH LAND LAW 3ED 1997

DEASYS ACT 1860

BRENNAN v AG 1984 ILRM 355

VALUATION ACT 1986 S5

VALUATION (IRL) ACT 1852 S11

VALUATION ACT 2001 S48

LANDLORD & TENANT ACT 1958 S4(3)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S10(1)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S9(d)

LANDLORD & TENANT (AMDT) ACT 1984 S7(4)(d)

CONSTITUTION ART 40.3.2

CONSTITUTION ART 43.2

GROUND RENTS COMMISSION REPORT 1964

CONSTITUTION ART 43.2.1

BLAKE v AG 1982 IR 117 1981 ILRM 34

LANDLORD & TENANT ACT 1958 S4(3)(a)(i)

LANDLORD & TENANT (AMDT) ACT 1980 S68

BRENNAN v AG 1983 ILRM 449

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919

ART 26 OF THE CONSTITUTION & PART v OF PLANNING & DEVELOPMENT BILL 1999, RE 2000 2 IR 321 2001 1 ILRM 81

LANDLORD & TENANT (AMDT) ACT 1984 S7(9)

LANDLORD & TENANT (AMDT) ACT 1980 S59

IRISH LIFE ASSURANCE CO LTD v DUBLIN LAND SECURITIES LTD 1986 IR 332

RATES ON AGRICULTURAL LAND (RELIEF) ACT 1974

DERELICT SITES ACT 1990

LAND ACT 2005

MEREDITH REPORT 1928

LANDLORD & TENANT ACT 1958 S4(3)(a)

LANDLORD AND TENANT (GROUND RENTS) (NO 2) ACT 1978 S16

LANDLORD & TENANT (AMDT) ACT 1980 S30(2)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(a)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(b)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(c)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(d)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(e)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(f)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(g)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(h)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(i)

LANDLORD & TENANT (AMDT) ACT 1984 S7(3)(j)

HEMPENSTALL v MIN ENVIRONMENT 1994 2 IR 20

DREHER v IRISH LAND COMMISSION 1984 ILRM 94

JAMES v UNITED KINGDOM (UK) 1986 8 EHRR 123

LEASEHOLD REFORM ACT 1967 (UK)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 1

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S4

TUOHY v COURTNEY 1994 3 IR 1

HEANEY v IRELAND 1996 1 IR 580 1997 1 ILRM 117

LEASEHOLD REFORM IN ENGLAND & WALES 1966 WHITE PAPER (UK)

LANDLORD & TENANT ACT 1931 PART II

LANDLORD AND TENANT (AMDT) ACT 1943

LANDLORD & TENANT (AMDT) ACT 1980 S33(1)

LANDLORD & TENANT (AMDT) ACT 1980 S59(3)

CONSTITUTIONAL LAW

Property rights

Objective of legislation - Social justice -Exigencies of common good and proportionality - James v United Kingdom 8 EHRR 123 - Landlord and Tenant(Amendment) Act 1984 (No 4), s 7 -European Convention on Human Rights, Protocol 1, article 1 - Constitution of Ireland 1937, Article 43 - Claim dismissed (2000/11774P - Peart J - 31/1/2006) [2006]IEHC 27 Shirley v A O'Gorman & Co Ltd

The plaintiffs (the landlord) contended that the statutory scheme under which the first defendant had been found entitled to acquire the fee simple interest in a business premises, including the mechanism provided therein by which the consideration payable was to be determined, was incompatible with the Constitution, being an unjust attack on their property interests.

Held by Peart J. in dismissing the plaintiffs’ claim that the impugned statutory scheme was one which had to be seen as intended to reconcile the exercise of the plaintiffs’ property rights with the exigencies of the common good. A social justice principle lay behind the legislation and the presumption of constitutionality had not been rebutted.

Reporter: R.W.

1 Mr Justice Michael Peart delivered on the 31st day of January 2006:

2 The hearing of the issues arising in these proceedings became necessary as a result of my judgment, delivered on the 31st May 2005, in the appeal from an order of the Circuit Court, wherein I determined that the first named defendant was entitled, by virtue of coming within certain of the provisions of the statutory scheme for the enlargement of tenants” interests to acquire the fee simple interest in certain business premises in Carrickmacross from the second named plaintiff herein, the landlord, and for that purpose I determined the appropriate consideration payable under the scheme to be the sum of €30,000 in accordance with the statutory mechanism for so doing as provided by s. 7 of the 1984 Act.

3 However, at that hearing of that appeal before me it was agreed by all parties that no order should be drawn up in this regard until such time as these separate proceedings have been determined, since the plaintiffs herein (the landlord) have therein contended that the statutory scheme under which the first named defendant has been found entitled to acquire the fee simple interest in the said business premises, including the mechanism provided therein by which the consideration payable is to be determined, is incompatible with the Constitution, being in their submission an unjust attack on their property interests, and since that is an issue which could not be determined within the Circuit Appeal case itself.

4 In the event that the plaintiffs are successful in so arguing, then it is acknowledged by all concerned that the benefit of any such finding of unconstitutionality is something from which the plaintiffs can derive benefit in relation to the said appeal. If the plaintiffs are unsuccessful in this challenge to the constitutionality of the statutory scheme, then the Circuit Court order shall simply be affirmed save as regards the variation in the purchase price.

5 For the full factual background to the present claim made by the plaintiffs, my judgment delivered on the 31st May 2005 should be referred to. I propose to refer to the three plaintiff parties collectively as the plaintiffs, there being no relevant distinction to be drawn between them for the purposes of this action. The second named plaintiff is a foreign registered limited liability company registered in which the first and third named plaintiffs are shareholders therein. The second named plaintiff company owns the fee simple interest in what I will loosely refer to as the Shirley properties, and there are over thirty individual properties which are subject to leasehold interests granted at various times and to which the statutory scheme impugned in these proceedings has or will have relevance. I have been informed that there are some applications pending to acquire the fee simple in some of these other Shirley properties, and those applications await the determination of these proceedings. No doubt further applications in respect of the other properties would be in due course made at the appropriate time under the leases in question.

6 While the second and third named defendants have raised a locus standi point in relation to the plaintiffs on the basis, inter alia, that the second named plaintiff is not an Irish registered corporation, I am completely satisfied that as the owner of the properties in question (including as shareholders in the company), and in particular the property the subject of the O'Gorman lease, all of the plaintiffs in their respective capacities are entitled to mount this constitutional challenge to the statutory scheme. The court has been referred by Mr Fitzsimons to a number of decisions in this regard, but the Court is content to respectfully refer to the judgment of Keane J. (as he then was) in Iarnrod Eireann v. Ireland [1996] 3 IR 321, and I refer in particular to the passage from that judgment appearing at p. 345 thereof as follows:

"Undoubtedly, some at least of the rights enumerated in Article 40, s.3, sub-s.2 - the rights to life and liberty - are of no relevance to corporate bodies and other artificial legal entities. Property rights are, however, in a different category. Not only are corporate bodies themselves capable in law of owning property, whether movable or immovable, tangible or intangible. The “property” referred to clearly includes shares in companies formed under the relevant companies” legislation which was already a settled feature of the legal and commercial life of this country at the time of the enactment of the Constitution. There would be a spectacular deficiency in the guarantee to every citizen that his or her property rights will be protected from “unjust attack”, if such bodies were incapable in law of being regarded as “citizens, at least for the purpose of this Article, and if it was essential for the shareholders to abandon the protection of limited liability to which they are entitled by law in order to protect, not merely their own rights as shareholders but also the property rights of the corporate entity itself, which are in law distinct...