Re Driscoll, Deceased. Driscoll v Driscoll

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 22 January 1918
• Court: Chancery Division (Ireland)
• Date: 22 January 1918

In re Driscoll, Deceased.

Driscoll

and

Driscoll.

M. R.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1918.

Landlord and tenant — Breach of covenant to repair — Measure of damages — Defence of the Realm (Amendment) No. 2 Act, 1915 (5 Geo. 5, c. 37), sect. 1, sub — s. 2 — Defence of the Realm Regulation 8e — Fire Insurance — Subrogation.

Certain premises were demised to A by a lease of 1866, which contained a covenant by the lessee to keep the premises in repair. A, by a lease of 1883, containing a similar covenant, sub-demised the premises to B. A and B had each insured the premises against loss by fire. On the 24th January, 1915, the premises were burnt down. Both A and B had been paid the full amounts of their respective claims by the Insurance Companies, which were not sufficient to reinstate the premises. A made a claim against the estate of B for damages for breach of the covenant to repair. A's Insurance Company claimed to be subrogated to his rights against B's estate, irrespective of whether A had been fully indemnified against the loss sustained or not.

Held, that until the insured had been fully indemnified he was not bound to contribute anything to the Insurance Company.

The measure of damages for breach of a covenant to repair where the premises have been totally destroyed, and the effect of the Defence of the Realm (Amendment) No. 2 Act, 1915 (5 Geo. 5, c. 37), sect. 1, sub-s. 2, and Regulation 8e made thereunder, considered.

Memorandum.

By a lease, dated the 12th June, 1866, the Rev. Maurice F. S. Townsend demised to the claimant, Frances Henry Marmion, certain premises in Skibbereen for the term of ninety-nine years, from the 1st may, 1866, at the yearly rent of £20. The lease contained, in addition to the usual covenant for payment of the rent, a covenant that the lessee would during the continuance of the demise keep the demised premises in repair, and at the end of the term or sooner determination of the demise yield up possession to the lessor, his heirs, and assigns in like good arid tenantable repair. By a sub-lease, dated the 31st December, 1883, and made between Thomas Henry Marmion, the Rev. Richard W. Marmion, and Henry R. Marmion, of the one part, and the deceased, Timothy Driscoll, of the other part, portion of the premises comprised in the lease of 1866 were demised to Timothy Driscoll for the term of seventy years from the 1st November, 1882, at the yearly rent of £32. This lease also contained a covenant by the sub-lessee to keep the premises in repair during the term, and on the expiration thereof so to yield up the same to the lessors. All the estate and interest of the lessors in the sub-lease had become vested in Thomas Henry Marmion. Neither lease nor sub-lease contained a covenant to insure, but Thomas Henry Marmion had insured the premises with the Liverpool, London, and Globe Insurance Company in the sum of £500. The sub-lessee mortgaged the premises to the Bank of Ireland, and he and the bank insured them against fire with the Guardian Insurance Company for £900. On the 24th January, 1915, the premises comprised in the sublease were almost wholly destroyed by fire, and both policies were paid in full. Timothy Driscoll died on the 28th January, 1915, and his estate was being administered by the Court. In the administration Thomas Henry Marmion put in. a claim to have the covenant in the sub-lease to keep the demised premises in good and tenantable repair throughout the term specifically performed and the premises reinstated as in their former condition, or in the alternative for damages for breach of the said covenant. The Liverpool, London, and Globe Insurance Company also claimed that the estate of Timothy Driscoll was liable by subrogation to pay to the company the sum of £500 which they had paid to Thomas Henry Marmion under his policy with them.

Meredith K.C. and Russell, for Thomas Henry Marmion:—

In Ireland a landlord cannot compel his tenant or the insurance company to expend the sum payable under the policy in reinstating the premises; his only remedy is under the covenant to repair; the decision in Leeds v. Cheetham (1) is still law in Ireland. The measure of damages is the sum it would cost to reinstate the premises, taking into account the claimant's liability, of which the deceased had notice by recital in the sublease: Metge v. Kavanagh (2); Conquest v. Ebbetts (3). [As to the right of the insurance company, they referred to...