Re FitzGerald

CourtSupreme Court (Irish Free State)
Judgment Date16 February 1925
Date16 February 1925

Supreme Court.

In re FitzGerald.

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.

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 against the lands, and that the transaction was a fraudulent one.

On the 27th November, 1924, the solicitor for the appellant applied to the Registrar for a copy of the said Application and all documents filed in connection therewith. The Registrar declined to accede to the request without the permission of the registered owners. The registered owners were, the appellant stated, hostile to him.

The appellant further stated that he was advised and believed that in order to realize his judgment against the lands and against the said Timothy Thomas FitzGerald it would be necessary for him to bring further legal proceedings, and for this purpose it would be necessary for him to inspect the said documents to ascertain the nature of the transaction and the parties thereto. He therefore prayed the Court for an order granting him liberty to inspect and bespeak certified copies of the said Application No. 369/6 and all other filed documents appertaining thereto.

The applicant appealed to the Supreme Court (1), Wylie J. having granted leave to appeal.

In his notice of appeal the appellant asked for an order that the order of Mr. Justice Wylie refusing the application of the appellant "for permission to inspect Application No. 369/6 on Folio No. 8978, Register, County of Kerry, and all other documents appertaining thereto and to be at liberty to bespeak certified copies of same," be discharged, "and in lieu thereof that it may be ordered that the said application of the appellant be granted on such terms and conditions as to the Court shall seem just."

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...

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3 cases
  • The State (Attorney General) v Judge Roe
    • Ireland
    • High Court
    • 1 January 1952
    ...... Thirdly, I apprehend that the attempt to deny a copy of the original entry to the person returned for trial involves the denial of a well-settled right—see In re FitzGerald (1) — though copies of the original entries are in evidence before us. In view of the great difficulty sometimes experienced by interested parties in obtaining all the records, such as they are, from a District Court, I recall that Lefroy C.J. in Reg v.O'Brennan (2) stated nearly 100 years ago ......
  • Quinn v Property Registration Authority of Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 27 July 2017 June 1924, Re Fitzgerald [1925] 1 I.R. 39, O'Connor J. described the appeal in that case as one of ‘some importance’ because ( [1925] 1 I.R. 39, 44) it raised the question: ‘whether the register of lands is a public document open to the inspection of any member of the public, or only to......
  • McGuinness v Property Registration Authority
    • Ireland
    • Court of Appeal (Ireland)
    • 22 February 2019
    ...written submissions to this Court: (a) the trial judge erred by not following judgments of the Supreme Court in Re: Fitzgerald [1925] I.R. 39 and Mallak v. Minister for Justice, Equality and Law Reform [2012] IESC 59; (b) The trial judge failed to acknowledge the appellant's right of inspec......

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