Leen v President of the Executive Council and Others

Judgment Date25 March 1928
Date25 March 1928
Docket Number(1924. No. 11,966.)
CourtSupreme Court (Irish Free State)
Leen v. President of the Executive Council and Others.
(1924. No. 11,966.)

Supreme Court.

Malicious injury - Building destroyed - Building previously insured - Claim for compensation - Decree by County Court Judge - Legislation rendering decree or an appeal ineffective - Claim before the Compensation (Ir.) Commission - Award - Enforceability - Subrogation - Moneys voted by Parliament for payment of malicious injury awards - Claims against such moneys - Construction of Appropriation Acts - Action against Executive Council and Ministers - Estoppel - Declaratory judgments - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1of 1922), Sch. I, Arts. 2, 54, 61, and 64 - Damage to Property (Compensation) Act, 1923 (No. 15 of 1923), sects. 1, 13, 15, 22, sub-sect. 2 -Ministers and Secretaries Act, 1924 (No. 16 of 1924), sect. 1 (b) -Appropriation Act, 1924 (No. 34 of 1924) - Treaty (Confirmation of Amending Agreement) Act, 1925 (No. 40 of 1925), Sch., Art. 3.

Plaintiff purchased in 1920 a Castle in Kerry, with the surrounding lands, for £4,000, the price being stated to be so low by reason of the then disturbed state of the country. He insured the building for £9,500 against loss or damage by, inter alia, riot or civil commotion, under a Lloyd's policy, as from May 25th, 1921. The Castle was maliciously destroyed on 27th May, 1921, and the plaintiff claimed £20,064 compensation under the Criminal Injuries Acts, and in October, 1921, the County Court Judge awarded him £4,000 compensation and £77 7s. 9d. costs. The plaintiff appealed, but the appeal had not been heard on May 12th, 1923, when the Damage to Property (Compensation) Act, 1923, was passed, which prohibited further steps being taken as regards the decree or the appeal. On 14th June, 1923, the plaintiff, in an action in the King's Bench Division in London, recovered judgment against Lloyd's underwriters for the sum of £9,500 and costs under the insurance. The underwriters having appealed from the said judgment, a compromise was effected in November, 1923, whereby the plaintiff received £5,000 from the underwriters in settlement of his claim.

Pursuant to certain public notices, the plaintiff lodged a claim for compensation with the Compensation (Ireland) Commission, and on 1st May, 1924, the Commission reported in his favour for £4,000 compensation and £82 12s. 9d. for costs. The Minister for Finance having declined to pay the plaintiff this amount, the plaintiff brought an action against the President of the Executive Council, the Minister for Finance, and the other members of the Executive Council, claiming (1) a declaration that he was entitled to payment by the defendants out of the Central Fund of the Irish Free State of the said sum of £4,000 and the £82 12s. 9d. for costs, and (2) payment of the said sums. The plaintiff relied on the public notices issued by the Provisional Government of the Irish Free State relating to the payment of compensation, and on the warrant of appointment of the Compensation (Ireland) Commission, basing his claim alternatively upon contract or estoppel. He also relied on the fact that by the Appropriation Act, 1924, the sum of £7,333,000 was appropriated out of the said Central Fund to payments to be made in respect of injuries to property (including his property). The defendants contended that the plaintiff's claim had been discharged by the payment to him by Lloyd's underwriters of the £5,000; and that the report of the Compensation (Ireland) Commission conferred no legal right on the plaintiff.

Held by the Supreme Court, affirming Meredith J., that the plaintiff's claim was unsustainable.

Per FitzGibbon J. (Kennedy C.J. concurring, but reserving the legal position as to the rights of a person claiming the payment of a specific sum, payable to him and proved to be included in the moneys which the Minister for Finance is authorised by a particular Appropriation Act to issue out of the Central Fund): The action against the Executive Council was unsustainable on any ground; and if the action was regarded as brought against the Minister for Finance, there was no contract, express or implied, upon his part to pay the sum stated in the report of the Compensation (Ireland) Commission; and there was no conduct or representation upon his part which bound him by way of estoppel; and there was nothing in the evidence or documents which could support even a rule for a mandamus, such as was granted in R. v. Lords Commissioners of the Treasury, 4 A. & E. 286, or an action for money received, as was suggested in In re Nathan, 12 Q.B.D. 461, founded upon the Appropriation Act, 1924.

But held by Murnaghan J. that the plaintiff was entitled to a declaration (1) that, on the true interpretation of the award made by the Compensation (Ireland) Commission in favour of the plaintiff, the sum awarded was £4,000 (with interest), together with the £82 12s. 9d. for costs, without deduction in respect of any sum already received by the plaintiff under an insurance policy; (2) that all moneys appropriated by the Oireachtas for payment of awards made by the said Commission are so appropriated for payment of awards made (including the award in favour of the plaintiff) without any power in the Minister for Finance to withhold such payment or reduce the same, save on grounds dealt with by statute; and (3) that the Minister for Finance was not entitled to retain the amount awarded to the plaintiff in virtue of any right of subrogation formerly vested in the persons who had paid moneys under any insurance policy.

R. v. Lords Commissioners of the Treasury, 4 A. & E. 286, can no longer be regarded as law since its disapproval in R. v. Treasury (Lords Commissioners),L.R. 7 Q.B. 387, and in In re Nathan, 12 Q.B.D. 461.

Kenny v. Cosgrave, [1926] I.R. 517, followed.

Trial of Action.

The pleadings are set out in the report of the motion for interrogatories [1926], I.R. 456, and the material portions of the evidence given at the trial of the action are stated in the judgment of Meredith J., infra.

The plaintiff appealed to the Supreme Court (1).

Cur. adv. vult.

Meredith J. :—

In the summer of 1920 the plaintiff purchased Ballyheigue Castle, in the County of Kerry, for the sum of £4,000. In normal times the market value of the castle might have been anything from £20,000 to £40,000, assuming competition for that class of property, but the circumstances of the times account for the low figure at which it was actually acquired. By a policy of assurance, which is dated in London, the 3rd June, 1921, and which carried full war, riots, and other such risks, the plaintiff insured the castle with Lloyd's Underwriters' Fire and Non-Marine Association at a heavy premium in the sum of £10,000, of which £500 was apportioned on the furniture, during the period the 25th May, 1921, and ending the 24th November, 1921, both days inclusive. Presumably the difference between the dates—the 25th May, 1921, and the 3rd June, 1921— is accounted for by the consideration being paid and a covering note given on the 25th May, and the policy itself only being signed in London on the 3rd June. On the 27th May, 1921, two days after the date from which the policy began to run, the castle was destroyed. The plaintiff, accordingly, alleging that the circumstances of the destruction gave rise to a claim for. compensation under the Criminal Injuries Acts, took proceedings in the County Court of Kerry, and on 19th October, 1921, obtained a decree for the sum of £4,000, and costs, as compensation. The case is one of the many which were not defended, in the sense that the County Council did not appear in opposition to the claim. The plaintiff appealed against the decree, but owing to the publication of what were known as Public Notice, No. 1, dated 20th January, 1922, and Public Notice, No. 2, dated 11th February, 1922, the appeal was never heard, and the plaintiff brought his claim before the Compensation (Ireland) Commission. The determination of that Commission was as follows:—"Amount determined by the Commission as fair and reasonable compensation—Four thousand pounds (£4,000 0s. 0d.). Conditions attached by the Commission (if any)—Nil. Interest (if any)—5% from 1st October, 1922. Costs and expenses awarded by the Commission—Eighty-two pounds twelve shillings and nine pence (£82 12s. 9d.)."

This determination of the Commission was communicated on the 1st May, 1924, to the plaintiff's solicitor, and on the 21st May, 1924, to the plaintiff himself by the secretary to the Commission, who added the welcome instruction: "For payment, I would refer you to the Minister for Finance, Upper Merrion Street, Dublin, who are acting as paymasters of the awards."The expectations created by this communication were no doubt sustained by a letter dated 11th June, 1924, from the office of the Minister for Finance to Mr. T. J. Liston, the plaintiff's solicitor, which said: "With a view to expediting payment of the award of the Compensation (Ireland) Commission in respect of the decree obtained by Jeremiah Leen, Ballyheigue, on 19/10/21 for £4,000, with £77 7s. 9d. costs, I am directed by the Minister for Finance to request that you will cause to be delivered at these offices the original decree in question." The decree was duly forwarded, and the plaintiff's expectations rose so high that he actually started the reconstruction of the castle. But, by a letter dated the 27th June, 1924, the plaintiff received the following intelligence:—"With reference to the above award of the Compensation (Ireland) Commission, I am directed by the Minister for Finance to...

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