Manning v Shackleton

• Jurisdiction: Ireland
• Judge: Keane J.
• Judgment Date: 01 January 1997
• Neutral Citation: 1998 WJSC-SC 2580
• Court: Supreme Court
• Docket Number: [S.C. No. 179 of 1993]
• Date: 01 January 1997

1998 WJSC-SC 2580

THE SUPREME COURT

O'Flaherty, J.

Blayney, J.

Keane, J.

179/93

MANNING v. SHACKLETON & CORK CO. COUNCIL

BETWEEN:

DAVID MANNING

Applicant/Appellant

AND

JOHN R. SHACKLETON

Respondent

AND

THE COUNTY COUNCIL OF THE COUNTY OF CORK

Notice Party

Citations:

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 S3(3)

PROPERTY VALUES (ARBITRATIONS & APPEALS) ACT 1960

MANNING V SHACKLETON 1994 1 IR 397

DOYLE V WINTERS UNREP DAVITT 14.1.53

STREET LAW RELATING TO LOCAL GOVERNMENT 667

ARBITRATION ACT 1954 S26

ARBITRATION ACT 1954 S38

DALY, STATE V MIN FOR AGRICULTURE 1987 IR 165

ANHEUSER BUSCH V CONTROLLER OF PATENT DESIGNS & TRADE MARKS 1987 IR 329

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE 1989 IR 149

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 S6(1)

ARBITRATION ACT 1954 S35(1)

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 S5(1)

MCDERMOTT & WOULFE COMPULSORY PURCHASE & COMPENSATION 191

ARBITRATION ACT 1954 S36

ARBITRATION ACT 1954 S37

KEENAN V SHIELD INSURANCE CO LTD 1988 IR 89

FISHER V GREAT WESTERN RAILWAY CO 1911 1 KB 551

ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT 1919 S5(4)

Synopsis:

[1996] 3 IR 85

1 Judgment delivered the 14th day of November, 1996 by Keane J. [NEM DISS]

2 The Applicant is the owner of a farm in County Cork. In 1986, the Notice Party made a Compulsory Purchase Order for road improvement purposes in respect of part of his lands. After Notice to Treat and a Notice of Entry had been served in the usual way, the Applicant applied to the Land Values Reference Committee for the appointment of a Property Arbitrator pursuant to the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919 (hereafter "the 1919 Act") and the Property Values (Arbitrations and Appeals) Act 1960to assess the compensation payable to him in respect of the compulsory acquisition. In a letter dated 10th April 1991, the Notice Party made what was described as an "unconditional offer" to the Applicant in the sum of £175,000 exclusive of costs in full and final settlement of his claim for compensation.

3 The Respondent having been duly appointed as the Arbitrator, the hearing took place before him and lasted for six days. On the 12th December 1991, the Respondent published his award in which he determined that the compensation to be paid to the Applicant was £156,280. The award further provided that if that amount did not exceed the sum the subject of the "unconditional offer", the Applicant was to bear his own costs and pay the costs of the acquiring authority, but that if it exceeded the sum offered unconditionally, the Notice Party was to pay the Applicant's costs.

4 The sum claimed by the Applicant as compensation was £515,245. If the "unconditional offer" made by the Notice Party was correctly described as such, the result might well be that the Applicant would have to pay the entire costs of both sides of the six day hearing before the Respondent. It was, from the Applicant's point of view an unhappy outcome. On the 18th February 1992, his solicitors wrote to the Respondent as follows:

"We refer to your award handed down on the 12th of December 1991. As you know many areas of conflict arose concerning the facts of the matter in the case and there was also legal argument advanced on behalf of the parties. In these circumstances therefore we would kindly ask you to furnish a considered judgment dealing with the following:"

(a) Your findings of fact.

(b) The legal arguments advanced and your findings in relation thereto.

(c) Furnish a breakdown of the contents of the award particularly in relation to the sum of £156,280.

5 We shall thank you to furnish this information as soon as possible since our client wishes to be advised in relation to the matters arising.

6 We look forward to hearing from you."

7 On the 21st February 1992, the Respondent replied as follows:

"I thank you for your letter of 18th February. I am not required to give a written considered judgment in making my award. My award is made having considered all the evidence tendered or adduced by the parties and the submissions made during the course of the hearing."

8 The Applicant then instituted the present proceedings which were brought by way of Judicial Review in the High Court. He was given leave to apply inter alia for:

9 (1) An Order of Mandamus directing the Respondent to furnish to him a detailed breakdown of and the reasons for the award.

10 (2) A Declaration that the failure by the Respondent to furnish a detailed breakdown of and the reasons for the award was not in accordance with the principles of basic fairness of procedures and the principles of natural justice and constitutional justice.

11 (3) In the alternative, an Order of Certiorari quashing the award of the Respondent because of the failure of the Respondent to furnish a detailed breakdown of and the reasons for the award.

12 The letter dated the 10th April 1991 containing the "unconditional offer" was in the following terms:

"I refer to previous correspondence herein."

13 I have been asked to make an unconditional offer of £175,000 exclusive of costs in full and final settlement of your client's claim for compensation, disturbance, injurious affection and all other ancillary matters.

14 The Council would also be prepared to carry out the following accommodation works:

15 (1) Provide a three bar concrete post and rail fencing along the new boundary line created by the Council's acquisition.

16 (2) Relocate existing field gates, where necessary.

17 (3) Provide adequate screen planting as required.

18 (4) Make good any damage to non-acquired lands.

19 (5) Make provision for connection to public water main in respect of house and lands retained north of proposed roadway.

20 Please note that if this offer is not accepted by your client and the Arbitrator's award is subsequently for a lesser sum, we shall use this letter for the purpose of fixing your client with the cost of the arbitration."

21 The Applicant, in his Affidavit, said that at various stages during the hearing of the arbitration the Notice Party gave a number of further undertakings in addition to the works proposed in this letter. The Respondent in his Affidavit confirmed that this was so. The Applicant was also given leave to apply for relief by way of Certiorari and Declarations in respect of what was described as the failure of the Respondent to recite in his award the undertakings given by the Notice Party in the course of the hearing and his failure to take them into account in relation to the award of costs.

22 The Respondent and the Notice Party having filed statements of opposition, the matter came on for hearing before Barron J. In his judgment (reported in (1994) 1IR 397), he rejected the case advanced on behalf of the Applicant insofar as it was based on the refusal of the Respondent to give any reasons for his award or to give any breakdown of the sum awarded. However, he was also of the view that the matter would have to be remitted to the Respondent so that he could determine the following:

23 2 "(1) The amount, if any, by which the amount of compensation awarded was reduced by reason of the undertakings given by the (Notice Party) when making its unconditional offer of £175,000; and

24 (2) The amount, if any, by which the award of compensation was reduced or further reduced by virtue of the further undertakings given by the (Notice Party) at the hearing before the Respondent."

25 The Applicant has now appealed to this Court from the refusal of the learned High Court Judge to grant any relief in respect of the refusal of the Respondent to give any reasons for his award or give a breakdown of the sum awarded. There has been no cross-notice of appeal in respect of his Order remitting the matter to the Respondent for a further hearing in relation to the matters specified by him.

26 On behalf of the Applicant, Mr. Gordon S.C. submitted that the award of the Respondent should have been set aside on two grounds:

27 (1) That he had failed to specify the amount awarded in respect of the particular matters which were the subject of the award as required by s.3(3) of the 1919 Act;

28 (2) That he had failed to give any reasons for his award.

29 As to the first of these grounds, Mr. Gordon submitted that there was nothing in the wording of s.3(3) which required an application to the arbitrator to specify the amounts awarded in respect of particular matters to be made at the hearing of the arbitration, as the High Court Judge had decided. To the extent that the unreported decision of Davitt P. in Doyle v. Winters [14th January 1953; referred to in Street on The Law Relating to Local Government at p.667] decided otherwise, it was wrong and should not be followed.

30 As to the failure of the Respondent to give any reasons, Mr. Gordon said that it left the Applicant in an impossible situation, since he could not be advised as to whether there were any grounds for applying to the Court under s.26 of the Arbitration Act 1954(hereafter "the 1954 Act") for an order remitting any of the matters to the arbitrator for reconsideration or under s.38 of the 1954 Act for the setting aside of the award on the ground that the arbitrator had misconducted the proceedings. While he accepted that there had been no impropriety on the part of the Respondent, he said that the provision of reasons and a breakdown of his award would have enabled the Applicant to decide whether there were grounds for arguing that the Respondent had "misconducted... the proceedings" within the meaning of that section. Apart from those considerations, the failure to give reasons also meant that it was not possible to advise...