Re FitzGerald

• Jurisdiction: Ireland
• Judgment Date: 16 February 1925
• Date: 16 February 1925
• Court: Supreme Court (Irish Free State)

In re FitzGerald.

In the MATTER of the LOCAL REGISTRATION OF TITLE (IRELAND) ACT, 1891, and in the MATTERof GARRETT FITZGERALD and JAMES J. FITZGERALD

Supreme Court.

Practice - Inspection of public documents - Rights of the public - Common Law right to inspect - Limitations on the right - Register of Titles made under the Local Registration of Title (Ireland) Act, 1891 - Register a public register - Whether documents kept in office of registration can be inspected - Statute infringing upon the rules of Common Law - Principles of construction - Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), sect. 56, sect. 94, sub-sect. 1 (k) - Order III, Rule 2, of Orders and Rules made under the Local Registration of Title (Ireland) Act, 1891, dated September 1st, 1910 - Land Transfer Act,1875 (38 & 39 Vict. c. 87), sect. 104.

The register of titles to land directed to be kept by the Local Registration of Title (Ireland) Act, 1891, is a public register, and the documents which are kept in the office for the registration of titles are public documents in the fullest sense.

In the case of public documents there is a Common Law right of inspection, but that right must necessarily be exercised within certain limits. The limitation laid down by Denman C.J. in R. v. Staffordshire JJ.,6 A. & E. 84, restricting the right to those persons who could prove themselves to be interested, is obviously a proper limitation. And there are documents which, for reasons of State, ought not to be disclosed.

There is nothing in the Local Registration of Title (Ireland) Act, 1891, or in the Rules made thereunder which is repugnant to the Common Law right of inspection of public documents. The obligation to keep books and indices for public inspection imposed by the Rules is in aid of the Common Law right, and does not infringe it.

Principles for the construction of statutes, which affect the rules of Common Law, considered.

The appellant had obtained judgment against T. F., and the judgment was not satisfied. T. F.'s father had been registered under the Local Registration of Title (Ireland) Act, 1891, as one of the owners of certain lands, and had died intestate in 1912. The name of T. F.'s father vas kept on the register until October, 1924, a month or so after the issue of the writ in the action, when it was removed, and the name of T. F.'s brother was substituted. The appellant, having ascertained these facts from an inspection of a copy of the Folio at the central office of the Land Registry, and suspecting that the change in the name of the registered owners of the lands had been made with a view to evade execution against the estate of T. F. in the lands, applied for permission to inspect the application to discharge equities lodged with the Registrar and all other documents appertaining thereto. Permission was refused, and thereupon the appellant appealed to Wylie J.

Held by Wylie J., that the permission was rightly refused, as the application to discharge equities was practically an abstract of title, and the law regarded a person's title deeds as entitled to secrecy, and that, if the application were granted, no one's title would be safe from inspection.

Held by the Supreme Court (reversing Wylie J.), that the change in the register afforded good grounds for the suspicion that it was merely a device for saving the property of T. F. from some form of execution and that the transaction was fraudulent. And that this gave the appellant an interest in investigating the transaction, and such investigation could not be made without a full inspection of the register. Accordingly the appellant ought to be allowed the inspection which he required.

Ex parte Application.

On 27th November, 1924, the Registrar of Titles under the Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), in the matter of the above-mentioned Act, and in the matter of Garrett FitzGerald and James J. FitzGerald, registered owners of land, Folio 8978, County of Kerry, refused the application of the appellant, John Foley, for a copy of the application to discharge equities filed by the said James J. FitzGerald, and also for copies of all documents filed in connection therewith.

From this ruling of the Registrar the appellant appealed to Wylie J. as Land Judge, being the Judge having jurisdiction in the matter under the said Act.

In his affidavit in support of his application, the appellant stated that on September 11th, 1924, he issued a writ against Timothy Thomas FitzGerald for the seduction of his daughter, Catherine Foley. The action was tried by a Judge and common jury on December 1st, 1924, and he (the appellant) recovered £350 damages against the defendant, who did not appear, and was not professionally represented at the trial.

That prior to October 16th, 1924, and subsequent to the issue of the writ, Thomas FitzGerald and James J. FitzGerald were named in the above-mentioned Folio as the registered owners of the lands of Gowlane, County Kerry. Thomas FitzGerald was the father of the said Timothy Thomas FitzGerald (the defendant in the action), but he died in 1912, intestate, having been predeceased by his wife, and leaving him surviving three children, namely, the said Timothy Thomas FitzGerald, Garrett FitzGerald, and Mary FitzGerald, who were, at the date of the application in this matter, in sole beneficial possession and occupation of the lands.

On October 16th, 1924, the said Garrett FitzGerald (the brother of Timothy Thomas FitzGerald) and James J. FitzGerald were, in pursuance of Application No. 369/6, entered on the said Folio as full owners (being tenants in common in equal shares) of the lands, subject as in the said Folio expressed.

The appellant also stated that he believed that the said Application No. 369/6 and the alteration of the Folio made thereon was effected with a view to preventing him from realizing his judgment...