Morel Ltd, Farbenbloom ney-General and Others (No. 4)

Judgment Date27 May 1930
Date27 May 1930
CourtSupreme Court (Irish Free State)

Supreme Court

Moore and Others v. Attorney-General and Others
THE ATTORNEY-GENERAL FOR SAORSTÁT saorstátÉIREANN éireann,WILLIAM GOAN, and Others, Defendants (No. 4) (1)

Practice - Appeal - Extension of time - Claim to a several fishery in tidal waters - Claim disputed and a public right to the fishery asserted - Attorney-General and others defendants - Appeal by the defendants other than the Attorney-General - No appeal by the Attorney-General except as to costs - Application by Attorney-General to enlarge notice of appeal - Rules of the Supreme Court (Ir.), 1905, Or. LXIV, r. 7 -Rules of the High Court and Supreme Court, 1926, Or. XXXVIII.

Motion on Notice for liberty to appeal from so much of the order of Johnston J. in the action as was not the subject of the notice of appeal already lodged, or, alternatively, for an extension of time for appealing.

The motion was grounded on the affidavit of Mr. Michael A. Corrigan, the Chief State Solicitor, filed on the 1st day of May, 1930, which was as follows:—

"1. The plaintiffs in this action claim a declaration that they are entitled to a several fishery in the tidal portion of the River

Erne, in the County of Donegal, and an injunction to restrain the defendants and all other persons from trespassing upon the said several fishery and fishing therein, or obstructing the plaintiffs in the exclusive use and enjoyment of the said several fishery, and damages for the entry on said fishery.

2. In the year 1925 a number of fishermen, inhabitants of the district adjacent to the said tidal portion of the River Erne, challenged the claim of the plaintiffs to such a several fishery and asserted a public right to fish in the said waters. In order to raise the issue the said fishermen on the 3rd day of June, 1925, after giving notice to the plaintiffs of their intention, openly and in considerable numbers fished in the said waters. The plaintiffs forthwith issued and served six summonses against six of the said fishermen in respect of the said entry to fish. The said six summonses were heard before the District Justice at Ballyshannon on the 1st day of October, 1925, when the defendants therein set up in defence that a question of title to the said fishery was involved, and the Justice accordingly made an order, "No jurisdiction, question of title involved."

3. On the 11th December, 1925, Robert Lyon Moore, one of the plaintiffs, and a complainant in the said summonses, obtained a conditional order in the nature of mandamus directed to the District Justice to hear and determine the said summonses. This order was made absolute by the High Court on the 16th March, 1926, but was, on appeal, discharged by the Supreme Court by order dated the 28th February, 1927, the Supreme Court holding that the defendants in the said summonses had raised a bonâ fide question of title which ousted the jurisdiction of the District Justice to hear and determine the complaints (1).

4. The said fishermen in the month of May, 1927, formally and openly repeated their entry to fish in said waters, and the plaintiffs accordingly brought the present proceedings, claiming the relief set forth in par. 1 hereof, and more particularly set forth in the statement of claim, naming as defendants the said fishermen and the Attorney-General, averring that the Attorney-General was sued as representing the public and the State of Saorstát Éireann éireann.

5. The defendants, other than the Attorney-General, (hereafter called the 'special defendants'), defended the said proceedings by counsel and solicitor, and presented an elaborate argument challenging the plaintiffs' title and proofs, and tendered a mass of evidence, both documentary and oral, in support of their case, asserting a claim as members of the public to fish in the said waters claimed by the plaintiffs as a several fishery, and justifying their entry to fish in the said waters, which was alleged as a trespass by the plaintiffs.

Counsel for the Attorney-General supported by argument and evidence the claim to a public right of fishing in the said waters. The Attorney-General took this course in the execution of the duty of his office to assert and protect public rights, and

in an endeavour to give to the Court all the assistance in his power in the determination of the issues raised.

6. By order, dated the 9th April, 1929, made by Mr. Justice Johnston pursuant to judgment delivered on the 18th February, 1929 (1), it was declared that the plaintiffs were entitled to the said several fishery in the said tidal waters and the bed and soil thereof, and it was ordered that the plaintiffs be quieted in their possession thereof, and the defendants (other than the Attorney-General) and all other persons be perpetually restrained from trespassing on the said several fishery, and it was ordered that the defendants should pay to the plaintiffs their costs of the action.

7. By notice, dated the 13th March, 1929, the special defendants appealed to the Supreme Court against the entire of the said order and judgment.

8. By notice, dated the 26th day of April, 1929, the Attorney-General appealed to the Supreme Court against that portion of the said order which directed that the defendants should pay the plaintiffs' costs of the action in so far as it imposed any liability on the Attorney-General to pay such costs.

9. The Attorney-General so limited his appeal, firstly and chiefly in order to obtain the determination of the Supreme Court on his liability to pay the costs of action of the plaintiffs, who seek a declaration of their private rights, which have been challenged by individual members of the public, and also in the belief that the special defendants, who had raised the issue of the right to fish in the said waters and had supported their claim in the District Court in defence to said summonses and in the High Court and Supreme Court on the proceedings for a mandamus, and defended this action in the High Court, were competent to maintain an appeal to the Supreme Court on all the matters raised in these proceedings, irrespective of the attitude of the Attorney-General, and in the belief that the Attorney-General would be entitled to be heard on all issues on the said appeal.

10. Having regard to the importance of the matters involved, and the preparation and expense which the special defendants have incurred in so defending themselves, the Attorney-General is unwilling that the facts and circumstances hereinbefore referred to should prevent a claim of public right, formally made by the special defendants, from being determined by the Supreme Court, and should prevent the special defendants from relying, in justification of their entry to fish in said waters, on the non-existence of a several fishery therein.

11. In view of the careful and law-abiding conduct of the special defendants, of the cost and expense they have gone to in this action, and of the importance of the public right which is claimed, and of the desire of the special defendants to appeal to this honourable Court, the Attorney-General seeks to take the only course now open in these proceedings to re-open the

whole of Mr. Justice Johnston's order, and so secure that the constitutional right of appeal to this Court will in effect be exercised in this case.

12. He accordingly prays an order that the time for appealing to the Supreme Court from the order and judgment of Mr. Justice Johnston, dated the 9th day of April, 1929, may be enlarged pursuant to Or. XXXVIII of the Rules of the High Court and Supreme Court, 1926, and that the Attorney-General be given liberty to appeal against the entire of the said order and judgment.

13. I make this affidavit as solicitor for the Attorney-General, and with his authority, and from information and instructions obtained by me from him and from my personal knowledge."

An affidavit in reply was made by Robert Lyon Moore, one of the plaintiffs, in which, after stating that the statements as to the course of the action contained in the first eight paragraphs of Mr. Corrigan's affidavit were correct, he continued:—

"2. As to par. 9 of the said affidavit I submit that if the Attorney-General had had any real belief in the case made by the defendants in the Court below, it is difficult to understand why the burden of the appeal should have been left upon the special defendants, who are, as the Attorney-General is well aware, poor fishermen and quite incapable of paying the costs of the plaintiffs, should the appeal prove unsuccessful.

3. I beg to refer to the notices of motion for security for costs of the appeal (1), and for an order staying the appeal of the special defendants (2), and to the affidavits filed in support of those motions; and I say that, had the Attorney-General appealed against the whole of the order of Mr. Justice Johnston in the first instance, neither of the said motions would have been necessary, nor would either have been instituted by the plaintiffs. The plaintiffs have been involved in heavy costs in this action, both on the original hearing and on the said motions, and very great delay has been occasioned by the action of the Attorney-General, and I submit that having regard to such delay, and to the circumstances generally, he should not now be granted leave to appeal save in respect of the costs of the action.

4. In regard to costs incurred by the plaintiffs in the Court below, I refer to the affidavit of Ralph Hall Reid, solicitor for the plaintiffs, made in this matter and sworn on the 4th April, 1929, and duly filed, wherein he then estimated the outlay to be £3,200, and the solicitor's costs £1,000. I am also informed by said solicitor that the costs, including counsels' fees, since the said affidavit was filed in reference to the motion for security for...

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