(Martin) Attorney General v Dublin Corporation
| Jurisdiction | Ireland |
| Judge | Miss Justice Carroll |
| Judgment Date | 11 February 1981 |
| Neutral Citation | 1981 WJSC-HC 932 |
| Docket Number | No. 113P/1979 |
| Court | High Court |
| Date | 11 February 1981 |
1981 WJSC-HC 932A
THE HIGH COURT
and
Judgment of Miss Justice Carrolldelivered the 11th February, 1981.
This action has been remitted by the Supreme Court to the High Court by Order dated the 7th March, 1979 "for an assessment of damages in pursuance of the undertaking given by the plaintiff F.X. Martin on the hearing of an application in the High Court for an interim injunction herein on the 10th of January, 1979".
The first named defendant, Dublin Corporation, brought a notice of motion dated the 25th July, 1979 seeking an order declaring that the Attorney General and the relator are jointly and severally liable to pay to the first named defendant the damages the first named defendant has and will suffer as a result of the order made on the 10th January, 1979 as extended by subsequent orders and eventually by the Interlocutory Order made on the 12th February, 1979 which was set aside on the 7th March, 1979. It is this issue of joint and several liability of the Attorney General and the relator which was argued before me. By consent I have not dealt with theassessment of damages which have been left over for another time. The second issue which was argued is the scope and extent of the undertaking given by Father Martin on the 10th January, 1979.
A plea in Bar was made on behalf of the Attorney General by Mr. Connolly on the grounds that the terms of the order of the Supreme Court referred to the undertaking given by the plaintiff F.X. Martin on the 10th January, 1979 and that the High Court had no jurisdiction to entertain the motion to grant any relief against the Attorney General.
Mr. Kinlen, Counsel for the first-named defendant, argued that there is only one plaintiff in a relator action and that is the Attorney General. Therefore the reference in the Supreme Court Order to the plaintiff F.X. Martin must mean the Attorney General and Father Martin.
As authority for the proposition that the plaintiff in a relator action is the Attorney General, he cited A.G. .v. Iron mongers'Company 1840 2 Beav. 313, A.G. at the relation of David Humphries and Governors of Erasmus Smith Schools 1910 1 I.R. 325, Weir .v. The County Council of Fermanagh and Rural District Council of Enniskillen 1913 1 I.R. 193, A.G. .v. Longan 1891 2 Q.B. 100.
I accept that the plaintiff in a relator action is the Attorney General and that the private person who initiates the action is the relator. This wasmentioned at the hearing and seems to have been understood and accepted by everyone. At page 94 of the transcript the following passageappears:-
"Mr. Justice Gannon - I thought you had the Attorney General asplaintiff."
Mr. Smith - Yes we have the Attorney General as plaintiff but if the case might be made concerning Father Martin.
Mr. Justice Gannon - But have you not looked into this.
Mr. Smith - We have.
Mr. Justice Gannon - What is the position of the Attorney General when he does act as a relator?
Mr. Smith - He is the plaintiff and he is answerable.
2.00 p.m. Mr. Smith - There was one matter I should have made clear and that is that the consent of the Attorney General for these proceedings was to the prosecution of the proceedings and does not extend to an undertaking as to damages which is for the relator. Mr. Justice Gannon - Well do you want to tell me what you have discovered about the position of the Attorney General who is acting in the public interest.
Mr. Smith - save as to this, that proceedings of this nature where you have a public right which an individual may wish to assert involvesthe fiat of the Attorney General, he becomes the appropriate plaintiff but to the extent of damages his fiat does not extend to the undertaking given at the interim stage which was by the relator.
It is clear from the transcript that the Attorney General never gave any express undertaking as to damages either on the 10th January, 1979 or at any time. He gave his fiat to the proceedings and to the amended proceedings. The conduct of the case was left with the relator, his solicitor and Counsel. No one could be left under any doubt but that no undertaking as to damages was given by the Attorney General (see page 94 of the transcript).
Also Mr. Justice Gannon expressly refused to ask for an undertaking from the Attorney General on the 12th February (see page 157).
Further, Counsel for the relator in Court before me expressly stated that the undertaking given in Court on the 10th January, 1979 was given by and on behalf of the relator. This is also acknowledged in a letter of the 27th of September, 1979 from the relator's solicitor Mr. Robinson to the Law Agent of Dublin Corporation.
I have no doubt that there was an express undertaking given in Court on the 10th of January, 1979 and it was the undertaking of the relatorpersonally.
However Mr. Kinlen argued that an undertaking by the Attorney General must be implied as and from the 10th of January because he and he alone is plaintiff. He cited Howard .v. Press Printers Limited 74 L.J. Ch. 100 as authority that where a Court grants an injunction it always makes it a term, whether it is expressed or not, that the injunction granted is on terms of an undertaking by the plaintiff as to damage. (See also Hoffman La Roche and Co. v. Secretary of State for Trade and Industry 1974 2 All England 1128 at pages 1149 to 1151 for a discussion about the history of undertakings as to damages by LordDiplock).
But what Mr. Kinlen is asking me to hold in effect is, that in addition to the express undertaking by the relator, there was also an implied undertaking by the Attorney General as plaintiff despite the fact that his consent to be plaintiff was given on condition that it would not extend to giving any undertaking as to damages. I cannot accept his argument....
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