Rosborough and Murphy v Cork City Council

JurisdictionIreland
JudgeMr. Justice Clarke
Judgment Date07 March 2008
Neutral Citation[2008] IEHC 94
CourtHigh Court
Docket Number[2007 Nos. 1559
Date07 March 2008

[2008] IEHC 94

THE HIGH COURT

[No. 1559 SS/2007]
[No. 1560 SS/2007]
Rosborough & Murphy v Cork City Council
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION
ACT, 1857 AS EXTENDED BY SECTION 52 (1) OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

MOIRA ROSBOROUGH
CLAIMANT

AND

CORK CITY COUNCIL
RESPONDENT

AND

IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION
ACT, 1857 AS EXTENDED BY SECTION 52 (1) OF THE COURTS
(SUPPLEMENTAL PROVISIONS) ACT, 1961

BETWEEN

RICHARD MURPHY
CLAIMANT

AND

CORK CITY COUNCIL
RESPONDENT

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52(1)

FRIENDS OF CURRAGH ENVIRONMENT LTD v BORD PLEANALA UNREP KELLY 14.7.2006 2006 IEHC 243

WASTE MANAGEMENT ACT 1996 PART II

WASTE MANAGEMENT ACT 1996 S22

WASTE MANAGEMENT ACT 1996 S23

WASTE MANAGEMENT ACT 1996 PART III

WASTE MANAGEMENT ACT 1996 PART IV

WASTE MANAGEMENT ACT 1996 S33(1)(a)

WASTE MANAGEMENT ACT 1996 S33(3)

WASTE MANAGEMENT ACT 1996 S35

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) ACT 2000

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S2

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S1(1)

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S6(1)

O'CONNELL v CORK CORPORATION 2001 3 IR 602 2001/19/5149

WASTE MANAGEMENT ACT 1996 S75

WASTE MANAGEMENT ACT 1996 S75(1)

WASTE MANAGEMENT ACT 1996 S33(6)

LOCAL GOVERNMENT ACT 2001 S69

LOCAL GOVERNMENT ACT 2001 S149

LOCAL GOVERNMENT ACT 2001 S149(4)

LOCAL GOVERNMENT ACT 2001 S149(5)

LOCAL GOVERNMENT ACT 2001 S151(1)

WASTE MANAGEMENT ACT 1996 S75(8)

PROTECTION OF THE ENVIRONMENT ACT 2003

GLENKERRIN HOMES v DUN LAOGHAIRE RATHDOWN CO COUNCIL UNREP CLARKE 26.4.2007 2007 IEHC 298

WASTE MANAGEMENT ACT 1996 S33(5)

IRISH PHARMACEUTICAL UNION & ORS v MIN FOR HEALTH & CHILDREN & ORS UNREP CLARKE 29.6.2007 2007 IEHC 222

WASTE MANAGEMENT ACT 1996 S33(1)

FINGAL CO COUNCIL v LYNCH 1997 2 IR 569

PUBLIC HEALTH ACT 1878 S65(a)

LOCAL GOVERNMENT (FINANCIAL PROVISIONS) (NO 2) ACT 1983 S8

SWEENEY v DUGGAN 1997 2 IR 531

CARNA FOODS LTD v EAGLE STAR INSURANCE (IRL) LTD 1997 2 IR 193

SULLIVAN v SOUTHERN HEALTH BOARD 1997 3 IR 123 1998/32/12464

GILHEANEY v REVENUE COMMISSIONERS 1998 4 IR 150 1995/18/4552

AYR HARBOUR TRUSTEES v OSWARD 8 AC 623

CONTRACT

Implied terms

Statutory function - Whether appropriate to imply term into contract - Whether binding local authority to contract was interference with its statutory discretion - Whether local authority entitled to make unilateral changes to contract - Fingal County Council v Lynch [1997] 2 IR 569 applied; O'Connell v Cork Corporation [2001] 3 IR 602 approved - Case stated answered (2007/1559 & 1560SS - Clarke J - 7/3/2008) [2008] IEHC 94

Rosborough v Cork County Council

PLANNING AND ENVIRONMENTAL LAW

Waste management

Public law - Contract law - Waste charges - Local authority - Whether statutory duties governed by contract law - Whether relationship between householder and local authority governed by contract law or by statute and public law - Whether change in level of waste collection service constituted breach of contract - Whether appropriate to imply term as to frequency of service into contract - Fingal County Council v Lynch [1997] 2 IR 569, O'Connell v Cork Corporation [2001] 3 IR 602, Carna Foods Ltd v Eagle Star Insurance Company (Ireland) Ltd [1997] 2 IR 193, Sullivan v Southern Health Board [1997] 3 IR 123 and Sweeney v Duggan [1997] 2 IR 531 applied - Local Government (Financial Provisions) (No 2) Act 1983 (No 10), s 75 - Waste Management Act 1996 (No 10), ss 22, 23, 33(1)(a), 33(3), 33(6), 35 and 75 - Local Government (Financial Provisions) Act 2000 (No 6) - Local Government Act 2001 (No 37), ss 69, 149 and 151 - Protection of the Environment Act 2003 (No 27) - Case stated answered (2007/1559 & 1560SS - Clarke J - 7/3/2008) [2008] IEHC 94

Rosborough v Cork County Council

PRACTICE AND PROCEDURE

Costs

Protective costs order - Whether court has jurisdiction to award costs in advance of trial - Friends of the Curragh Environment Ltd v An Bord Pleanála [2006] IEHC 243 (Unrep, Kelly J, 14/7/2006) considered - Costs order refused (2007/1559 & 1560SS - Clarke J - 7/3/2008) [2008] IEHC 94

Rosborough v Cork County Council

Facts: On a case stated from the District Court, the issue arose as to the waste collection charges and whether a refund for charges paid could be made on the basis that the respondent local authority was in breach of contract. The District Judge had refunded the claimant a portion of charges upon finding that a binding contract between the parties existed. The respondent alleged that terms could not be implied into the contract, if it did exist and that the finding fettered unduly the exercise by the respondent of its statutory functions. The issue of costs was disputed as between the parties.

Held by Clarke J. that the District Judge was wrong in law to find that a contract had existed. The relationship was governed by statute and public law and not contract law. No order for costs would be made.

Reporter: E.F.

1

JUDGMENT of Mr. Justice Clarke delivered on the 7th day of March, 2008

1. Introduction
2

2 1.1 It hardly needs to be said that charges in respect of local authority services, not least those in relation to waste collection, have been a subject of significant controversy over the last number of years. These proceedings are not concerned with the principle of the levying of such charges, but rather relate to the precise way in which the respondent ("Cork City Council") has dealt with, and charged for, waste collection for the calendar year 2006. While this judgment relates to two separate cases, the factual and legal basis of both are identical in all material respects. I therefore propose dealing specifically with the first above named proceedings. In that case the claimant ("Ms. Rosborough") initiated a claim to the Small Claims Registrar in March of last year claiming a refund of some of the refuse collection charge which she had previously paid, in respect of the calendar year 2006, to Cork City Council. In circumstances which I will set out in more detail, the matter ultimately came before District Judge David Riordan who found that there was a contract between Ms. Rosborough and Cork City Council, that Cork City Council were in breach of that contract, and that Ms. Rosborough was entitled to €86.66 in damages. An identical finding was made in the second case.

3

3 1.2 Significant legal issues arise as to whether Ms. Rosborough's claim is correct in law. In practical terms it would also appear that the claim she makes would be available to most other residents in the Cork City Council area who have made similar payments for refuse collection. While the scale of each individual case is, as the decree made by the learned District Judge makes clear, very small, nonetheless the overall effect on Cork City Council has the potential to be very significant indeed.

4

4 1.3 In those circumstances the learned District Judge was invited, on behalf of Cork City Council, to state a case as an appeal by way of case stated for the opinion of this Court on the legal issues arising. This the learned District Judge did and this judgment is directed to the issues raised.

5

5 1.4 While it will be necessary to set out the facts in some more detail in the course of this judgment, at its simplest the case which Ms. Rosborough makes is that Cork City Council engaged in a unilateral change to the level of service provided subsequent to levying the refuse collection charge concerned. This was said to be a breach of contract and the amount of damages awarded related to a proportion of the charge concerned which, in the opinion of the learned District Judge, was proportionate to the change in service.

6

6 1.5 As it is particularly unusual for a case which was commenced by the small claims machinery to come to this Court, I should start by setting out the procedural history of the case as set out in the case stated.

2. Procedural History
7

2 2.1 On the 7 th of March, 2007, Ms. Rosborough made an application to the Small Claims Register in the District Court area of Cork City (bearing claim No. 108/2007 PIN46956). Ms. Rosborough made her claim in a commendably succinct way in the following terms:-

"On the 17 th April, 2006, I accepted Cork City Council's offer of a 10% discount in respect of the annual refuse charges payable for 2006, and I paid over the sum of €261.00. Subsequently Cork City Council varied the collection from what was then a weekly service to a fortnightly service. I hereby claim a refund of €130.50 or such sum as the court may order."

8

3 2.2 The proceedings came before the learned District Judge on the 14 th of May, 2007. It will be necessary to refer to the facts found by the learned District Judge as set out in the case stated in due course. However, as indicated, the District Judge made findings which, as set out in the case stated, are in the following terms:-

9

a "(a) That there was a binding contract between the parties.

10

(b) That the unilateral introduction of the revised system of waste collection by the City Council in early May, 2006 amounted to a breach of that contract.

11

(c) That there was no legal principle which would prevent the said breach of contract being actionable by the claimant.

12

(d) That, therefore the claimant was entitled to a decree of €86.66 (being one half of the charge attributable to the period from the introduction of the revised waste collection system in May, 2006 until the end of 2006, reflecting the reduction in frequency of wheelie-bin collections from weekly to fortnightly)."

13

4 2.3 Both cases stated were listed for hearing before me at the March Cork Chancery Non-Jury sessions. When the cases were...

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