Kerry County Council v McCarthy

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 28 April 1997
• Neutral Citation: 1997 WJSC-SC 3139
• Court: Supreme Court
• Docket Number: (5/94)
• Date: 28 April 1997

1997 WJSC-SC 3139

THE SUPREME COURT

O'Flaherty J.,

Barrington J.,

Murphy J.,

(5/94)

KERRY CO COUNCIL v. MCCARTHY

AN CH ÚIRT UACHTARACH

BETWEEN:

THE COUNTY COUNCIL OF THE COUNTY OF KERRY

Applicants/Respondents

.v.

JOHN McCARTHY

Defendant/Appellant

Citations:

COURTS OF JUSTICE ACT 1947 S16

HOUSING ACT 1966 S62

HOUSING ACT 1966 S62(4)

LANDLORD & TENANT LAW AMDT ACT (IRL) 1860 S86

LANDLORD & TENANT LAW AMDT ACT (IRL) 1860 S87

LANDLORD & TENANT LAW AMDT ACT (IRL) 1860 S88

COURTS OF JUSTICE ACT 1924 S77

COURTS OF JUSTICE ACT 1924 S91

O'FLAHERTY, STATE V O FLOINN 1954 IR 295

LYNCH, STATE V BALLAGH 1986 IR 203

COURT OFFICERS ACT 1926 S48

DCR r30(1)(c)

AG V BRUEN & KELLY 1935 IR 615

AG V CALLAGHAN 1937 IR 386

BATCHELOR & CO (IRL) LTD, STATE V O FLOINN & ANOR 1958 IR 155

RAINEY V DELAP 1988 IR 470

O'ROURKE, STATE V KELLY 1983 IR 58

Synopsis:

Landlord and Tenant

Case stated; Circuit Court action for recovery of possession of a local authority dwelling house; tenancy had been determined by Notice to Quit and demand for possession had been made and refused; summary procedure by which local authority can apply to District Court for a warrant entitling it to issue summons; whether issue of summons exclusively a function of District Court judge. Held: Action dismissed: District Court clerk entitled to issue summons. (Supreme Court; O'Flaherty J, Barrington, Murphy JJ. 28/04/97)

Kerry County Council v McCarthy

[1997] 2 ILRM 481

1 Judgment delivered on the 28th day of April, 1997, by O'Flaherty J. [NEM DISS]

2 This is a case stated by His Honour Judge Kevin O'Higgins, a judge assigned to the south-western circuit, seeking the opinion of the Court, pursuant to s. 16 of the Courts of Justice Act, 1947, on certain questions arising in proceedings brought by Kerry County Council against John McCarthy for the recovery of possession of a local authority dwellinghouse.

3 Kerry County Council sought possession of the dwellinghouse in question which was situated in the townland of Bishopscourt north, Ballyduff, Co. Kerry, and which had been held by Mr. McCarthy as tenant to the County Council when, as was accepted, the tenancy in the property had been duly terminated by notice to quit and that demand for possession containing a statement of intention to bring these proceedings had been duly made and refused.

4 Section 62 of the Housing Act, 1966, provides a summary procedure by which a local authority may apply to the District Court for the issue of a warrant entitling it to recover possession. Sub-section 4 of that section applies the provisions of ss. 86, 87 and 88 of the Landlord and Tenant Law Amendment Act, Ireland, 1860 ("Deasy's Act").

5 Section 86 of Deasy's Act provides that where a tenancy has been duly determined by a notice to quit, and there is a failure on the part of the tenant to deliver up possession of the premises, then "it shall be lawful for the landlord or owner of the said premises .... to cause the person so neglecting or refusing to quit or deliver up the possession to be served with a summons in writing, signed by a justice or justices not interested in the said premises, but having jurisdiction in the place in which the premises shall be situate, to appear before two or more justices at the petty sessions, town hall, or divisional justice room, or other place in which such justices usually meet for the despatch of public business ....." and then if the tenant "shall not show to the satisfaction of such justices reasonable cause why possession should not be given [the Justice or justices are empowered] to issue a warrant under their hands and seals, to any person as a special bailiff in that behalf, on the part of the landlord or owner, requiring and authorising him, within a period to be therein named, and not less than seven or more than fourteen clear days from the date of such warrant, to give the possession of the said premises to the said landlord, etc."

6 Section 77 of the Courts of Justice Act, 1924, provides that the District Court shall have and exercise all powers, jurisdictions and authorities which were [previously] vested by statute or otherwise in Justices or a Justice of the Peace sitting at Petty Sessions, together with the additional jurisdiction as therein specified.

7 Section 91 of the same Act provides that the "...rule- making authority may at any time and from time to time ... make ... District Court Rules ...for ... the practice and procedure of the District Court generally ... including ... the adaptation or modification of any statute that may be necessary for any of the purposes aforesaid and all subsidiary matters." The words "pleading, practice and procedure generally" refer to the jurisdiction conferred upon the District Court or transferred to it and are matters strictly procedural in the narrow sense: see The State (O'Flaherty) .v. O'Floinn [1954] IR 295 and The State (Lynch) .v. Ballagh [1986] IR 203.

8 By virtue of the provisions of s.48 of the Court Officers Act, 1926, every District Court clerk assigned to a particular district or districts has power to exercise all such powers and authority and to perform and fulfil all such duties and functions in relation to the District Court in such district as "shall from time to time be conferred or imposed on him by statute or rule of court."

9 Rule 30(1)(c) of the District Court Rules, 1948, ( Statutory Rules and Orders 1947, No. 431) provides that a District Court clerk may issue a summons-

10 (i) in cases where a defendant is charged with an offence, if the offence is stated to have been committed or the defendant resides within the limits of the Court Area or Areas for which he acts as Clerk, or

11 (ii) in summary proceedings of a civil nature, if the defendant or one of the defendants resides or carries on any profession, business or occupation within...