McCord v ESB

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,Henchy J.,Parke J,GRIFFIN J.,Parko J,KENNYJ.
• Judgment Date: 28 July 1980
• Neutral Citation: 1980 WJSC-SC 2630
• Date: 28 July 1980
• Docket Number: (21/1980)
• Court: Supreme Court

McCORD v. ESB

McCORD

v.

E. S. B.

1980 WJSC-SC 2630

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

(21/1980)

THE SUPREME COURT

1 JUDGMENT delivered the 28th day of July 1980by O'HIGGINS C.J.

2 The Appellant is a Statutory Board established by Section 2 of the Electricity (Supply) Act 1927. In accordance with the provisions of this Act it is armed with certain powered and charged with certain duties in relation to the provision of electric power throughout the country. In particular, by Section 19 it is charged with a duty to distribute, sell and promote the use of electricity and to control, co-ordinate and improve the supply of electricity generally. Over the years since its establishment the Appellant has carried out these statutory functions with regard both to the supply and control of electricity to such an extent that it now exercises a virtual monopoly in relation to this essential source of energy and power. As the Appellant is charged with the duty of selling electricity it is implicit, andenvisaged by the Act, that it should have the power to enter into contracts with individual consumers providing for the sale or supply of electircity and for matters connected therewith. The Appellant in fact does this by operating what are termed "General Conditions relating to Supply". These are a set of conditions, fifteen in number, which the Appellant enforces throughout the country as governing the supply by it of electricity to its consumers. Every applicant for a supply of electricity is required to sign a document agreeing that such is "to be connected, supplied and charged for in accordance with the Board's General Conditions relating to Electrical Supply". The document contains a further acknowledgment on behalf of the applicant that he has seen and carefully read these General Conditions and "all such further or amended conditions and regulations as may be made from time to time by the Board as to conditions, price or otherwise, in as full a manner as if the same were in force at the date hereof". A postscript is added at the bottom of this document of application to the effect:

" Important - The Board's General Conditions Relating to Electricity Supply are on display at the Board's Offices and Showrooms, and copies are available on request. The Board has the right to amend alter or vary these Conditions from time to time, and the Conditions of Supply as so amended, altered or varied shall, while in force, be ipso facto binding upon the consumer."

3 While the ensuing relationship between the Appellant and the successful applicant for a supply of electricity is termed contractual it is quite clear that it is a contract into which the person seeking a supply has no option but to enter. Not only is this so but it is one which is subject to unilateral alteration which must be accepted by the consumer if supply is to be continued. The true nature and effect of these General Conditions are not in issue in this case nor has their validity been called into question For the purpose of this case it is agreed that the relationship existing between the Appellant and its consumers is based on contract and that the terms of this contract are those contained in these General Conditions. I would also add, however, that these General Conditions emanating as they do exclusively from the Appellant must beconstruced strictly and must be operated fairly and reasonably.

4 The Respondent in this appeal was and is one of the Appellant's consumers. He was supplied with electricity in connection with his house at 166 Arthur Griffith Park, Lucan, in October 1973. He occupied this house with his wife and family. On the 10th May 1978 one of the Appellant's meter inspectors on visiting the Respondent's house, discovered that the Appellant's meter therein installed had been tampered with. This meter had been opened, interfered with, and a false seal had been attached to conceal what had been done. The result was that the actual amount of electricity consumed by the household was not recorded and a considerable amount of electricity so consumed was neither charged to or paid for by the Respondent. when this was discovered the Respondent and his wife disclaimed all responsibility for or knowledge of what had occurred. In ensuling interviews with representatives of the Appellant the Respondent was asked and required to sign a statement to the effect that whiledisclaiming responsibility in the manner he had indicated, he nevertheless acknowledge that the interference had taken place while the meter was in his custody and undertaking to pay for the electricity which had not been accounted for. The Respondent refused to do so. Eventually and because of his attitude the Appellant cut off the supply of electricity to his house. This took place on the 23rd May 1978. On the 20th December 1978 the Respondent commenced these proceedings by Plenary Summons claiming against the Appellant damages for breach of contract and an Order providing for the reconnection of supply. As a result and pending the trial of the action supply was recommenced to the Respondent's house on the 28th February 1979. In his Statement of Claim, subsequently furnished, the Respondent claimed damages for the inconvenience and loss suffered by him and his family in the period in which the supply of electricity was withdrawn.

5 The Respondent's action was tried in the High Court by the late Mr. Justice Butler. He came to the conclusionand so stated in his spoken Judgment that the Appellant was not entitled, whether for the purpose of enforcing payment of sums due or for the purpose of enforcing other terms of the Contract to cut off supply to a consumer without an Order of the Court. For this reason he held that the Appellant had acted unreasonably and in breach of contract. However, he also held that the Respondent and his wife had acted unreasonably in refusing to co-operate with the Appellants representatives and in refusing to do what was asked. He held that if the Respondent had agreed to the reasonable request made of him to sign the suggested statement and undertaking the supply of electricity would not have been out off and none of the suffering and inconvenience which was subsequently caused would have resulted. For this reason he awarded the Plaintiff only £50 damages.

6 The Appellant brings this appeal to call into question the view expressed by Mr. Justice Butier that it was not entitled to terminated or cut off supplying to a consumer without first having obtained an Order of the Courtenabling it to do so. A cross-appeal has been served by the Respondent complaining that the damages awarded were inadequate.

7 On the hearing of this appeal, as already indicated, it was agreed that the rights of the parties depended on the Contract as contained in the General Conditions. The respondent did not seek to support the trial Judge's view that the Appellant could not act in a situation covered by these Conditions, without an Order of the Court. The appeal, therefore, resolved itself into a question as to whether the Appellant's action in the circumstances was without authority and therefore in breach of contract. At this stage 1 think it proper to say that not only do these General Conditions empower the Appellant to cut off electricity in particular circumstances but also, that such a power is expressly given to the Appellant by Section 99 of the Electricity Supply Act 1927, in the circumstances to which that Section applies. The question which now ariseson this appeal is whether the circumstances of this particular case justified the Appellant in doing what it did. In my view, these circumstances do not justify the action taken.

8 Councel for the Appellant rested justification for the action taken on the provisions of the General Conditions taken in conjunction with those of Clause 10. Clause 13 provides as follows:

"13. POWER TO DISCOMMECT SUPPLY AND/OR TERMINATE AGREEMENT

The Board may disconnect supply without prior notice to theconsumer.

(a) If the consumer fails to pay on demand any account issued for electricity supplied by the Board, including any estimated account or any statutory charges arising in connection therewith or any other sum due to the Board on foot of a contract for the supply ofelectricity.

(b) If the consumer commits any breach or fails to comply with any of these terms and conditions.

(c) To make alterations or repairs.

The Board may also disconnect from its supply mains any installation where, in the opinion of the Board, such use of the energy is made as the interfere with the satisfactory distribution of electricity or where in the opinion of the Board such installation interferes with the quality of supply to otherconsumers or where the Board considers the installation to be in a dangerous condition. The Board may also disconnect supply and/or terminate agreement at any time upon giving forty-eight hours notice to the consumer, such notice to be left at or sent by post to the premises supplied. If the notice is sent by post it shall be deemed to have been received on the week day following the day of posting."

9 The particular provision of this Clause relied on was sub-clause (b). It was contended that in this case there was a breach or failure by the Respondent to comply with a term or condition and that this justified the Appellant in exercising its power to disconment. The term or condition which it was contended had not been complied with or broken was that contained in Clause 10. This Clause reads as follows:

"10. LIABILITY OF CONSUMER FOR DAMAGE TO BOARD APPARATUS

The consumer will be held responsible by the Board for the safe keeping of all meters and other electrical apparatus, service lines and fittings belonging to the Board and placed on his premises, and should any damage or injury be caused by fire, water, accident or other cause for which the...