Moore and Others v Attorney-General and Others (No. 3)

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 11 April 1930
• Date: 11 April 1930

Moore and Others v. Attorney-General and Others.

ROBERT LYON MOORE and Others

Plaintiffs

and

THE ATTORNEY-GENERAL FOR SAORSTÁT saorstátÉIREANN éireann,WILLIAM GOAN, and Others, Defendants (No. 2)(1)

Supreme Court

Practice - Appeal - Competency - Claim to a several fishery - Attorney-General and others defendants - Appeal by the defendants other than the Attorney-General - No appeal by the Attorney-General - Assertion of public rights - Position of Attorney-General - Action for a declaration - Claim for an injunction - Injunction only granted in personam and against a party to the action - "Representative" defendants - Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1 of 1922), Sch. I, Arts. 11 and 54 - Ministers and Secretaries Act, 1924 (No. 16 of 1924), sect. 6—Rules of the Supreme Court (Ir.),1905, Or. III, r. 4; Or. XVI, r. 9; Or. XXV, r. 5.

The plaintiffs, who claimed to be entitled to a several fishery in the tidal portion of the River Erne, in the County of Donegal, from the falls of Asseroe to the high sea or bar of Ballyshannon, brought an action against the Attorney-General of the Irish Free State, as representing the public and the State, and against 42 other persons (hereinafter referred to as the"special defendants"), who, the plaintiffs alleged, had wrongfully entered upon the said fishery and fished therein. The plaintiffs claimed (1) a declaration that they were entitled to the said several fishery and to the bed and soil underlying the said waters; (2) a declaration that, at the date of the coming into operation of the Constitution of the Irish Free State, they, or their predecessors in title, were entitled, under a valid and subsisting grant, to a several fishery as aforesaid, and that the same constituted a valid private interest at the said date within the meaning of Art. 11 of the said Constitution; (3) a declaration that, prior to the coming into operation of the said Constitution, by virtue of a certain Landed Estates Court conveyance, the grantees therein named (being the predecessors in title of the plaintiffs) became and were indefeasibly entitled by statute to the said several fishery, and the bed and soil underlying the said waters, and that such title was preserved by the said Constitution, and was now vested in the plaintiffs; (4) an order that the plaintiffs be quieted in the possession of the said several fishery; (5) a perpetual injunction restraining the defendants and all other persons from trespassing upon the said several fishery, fishing therein, or taking fish thereout; and from obstructing the plaintiffs, their servants, licensees, or agents, or any person or persons authorised by the plaintiffs in the exclusive use and enjoyment of the said several fishery; (6) damages and costs.

Johnston J., who tried the action, gave judgment for the plaintiffs in the terms of their claim, with the exception of awarding damages, their claim to which the plaintiffs waived, and he ordered the defendants to pay the plaintiffs their costs of action, such costs not to be levied against the Attorney-General in his personal capacity (reported [1929] I.R. 191).

The special defendants served notice of appeal against the entire order of Johnston J., and the Attorney-General served notice of appeal, limited to so much of the order as imposed a liability for costs on him.

The plaintiffs thereupon served a notice of a preliminary objection to the appeal of the special defendants on the ground that it was not competent to those defendants to appeal from so much of the order as established the title of the plaintiffs to the said several fishery, inasmuch as the Attorney-General, in whom was vested the representation of the public in all legal proceedings for the assertion or protection of public rights, had not appealed from the order save on the question of costs. On the hearing of this objection:

Held by the Supreme Court (Kennedy C.J. and FitzGibbon J.; Murnaghan J. dissenting)—

1. Before the Judicature Act, the plaintiffs could not have brought a Bill of Peace to quiet them in a title set up against the public; since that Act it hag been possible to establish rights against the public by means of a declaratory action, subject to the discretion of the Court in control of that form of proceeding.

2. Neither before the Judicature Act, nor since, could the public be represented by a number of persons sued on behalf of, or appointed to represent, all the rest of the public.

3. The Attorney-General is exclusively the legal representative of the public and the rights of the public, whether for the purpose of bringing an action to assert those rights, or of defending an action in which the rights of the public are assailed.

4. Or. XVI, r. 9, of the Rules of the Supreme Court (Ir.), 1905, does not apply to actions of tort. No such thing is possible as an action of tort against "representative" defendants.

5. An injunction, which is in the nature of an execution, will only be granted in personam, and will not be granted against any person not a party to the action. The words, "and all other persons," in the order of Johnston J. granting the injunction, were nugatory and of no effect. A perpetual injunction seemed to have been erroneously supposed to mean a universal injunction.

6. In fact, the special defendants were not sued as representing anyone but themselves. They were, in fact, all the persons alleged to have committed acts of trespass.

7. The action as constituted (without objection on this ground) was, in fact, made up of a consolidation of 43 separate actions, in one of which the plaintiffs sought a declaratory decree against the public, represented by the Attorney-General, in respect of alleged public rights, and, in the other 42 actions, they sought relief by way of injunctions and damages against the special defendants respectively as tort-feasors. The special defendants were represented by the Attorney-General for the purposes of the declaratory decree sought by the plaintiffs.

8. The Attorney-General alone could be heard making any claim on behalf of the State or community of citizens of the Irish Free State under Art. 11 of the Constitution.

9. The special defendants, having a legal representative in the Attorney-General in respect of the declaratory decree, could not appeal against that part of the order of Johnston J. Such appeal lay solely within the competence of the Attorney-General. The appeal of the special defendants was, therefore, competent only to the extent of the special relief granted against them—that was to say, the injunctions, &c.

The appeal must, therefore, be limited accordingly on the hearing, in the absence of the Attorney-General.

Preliminary Objection by the plaintiffs to the competency of the appeal brought by the defendants, other than the Attorney-General, from the order of Johnston J. (his judgment is reported [1929] I.R. 191), and which the Supreme Court ordered to be set down for separate argument prior to hearing the said appeal.

The plaintiffs claimed to be entitled to a several fishery for salmon and all other fish in the entire tidal portion of the River Erne, in the County of Donegal, from the falls of Asseroe at Ballyshannon to the high sea or bar of Ballyshannon, and to the bed and soil underlying the said waters. They brought an action, claiming a series of declarations (which are set out in the head-note), the defendants being the Attorney-General for the Irish Free State and 42 other persons, who, the plaintiffs alleged, had wrongfully entered upon the said several fishery and fished therein, and had obstructed and interfered with the plaintiffs in the use and enjoyment of the said fishery. Johnston J., who tried the action, held that the plaintiffs were entitled to the relief which they claimed, and ordered the defendants to pay the plaintiffs their costs, such costs not to be levied against the Attorney-General in his personal capacity. The defendants other than the Attorney-General served notice of appeal against the entire judgment and order of Johnston J., and applied for an order that the action be dismissed with costs. The Attorney-General served notice of appeal, limited to so much of the order as imposed a liability for costs on him, but did not appeal from any other part of the judgment and order. Thereupon the plaintiffs served a notice, dated the 9th August, 1929, upon the defendants that "on the hearing of this appeal the plaintiffs will object that it is not competent to the appellants (the defendants, other than the Attorney-General) to appeal from so much of the judgment and order of Johnston J., dated 9th April, 1929, as establishes the title of the plaintiffs to the several fishery mentioned in the pleadings in this action, inasmuch as the defendant, the Attorney-General, in whom is vested the representation of the public in all legal proceedings for the assertion or protection of public rights under sect. 6 of the Ministers and Secretaries Act, 1924 (No. 16 of 1924), has not appealed from the said judgment and order, save on the question of costs."

On the application of the plaintiffs, the Supreme Court. ordered, on the 14th October, 1929, that this preliminary objection be set down for separate argument prior to hearing the appeal; and, being of opinion that the objection raised important constitutional questions, directed the plaintiffs to serve notice of the hearing of the objection on the Attorney-General, and this was accordingly done.

Cur. adv. vult.

Kennedy C.J.:—

The plaintiffs in this action are ten persons, who claim to be entitled to a several fishery for salmon and all other fish in the entire tidal portion of the River Erne, in the County of Donegal, from the Falls of Asseroe at Ballyshannon to the high sea or bar of Ballyshannon, and to the bed and soil underlying the said waters.

The defendants are the Attorney-General for Saorstát...