Southern Hotel Sligo Ltd v Iarnród Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 13 July 2007
• Neutral Citation: [2007] IEHC 254
• Court: High Court
• Docket Number: [2006 No. 1814 SS]
• Date: 13 July 2007

Southern Hotel Sligo Ltd v Iarnród Eireann

IN THE MATTER OF THE SECTION 52 OF THE COURTS (SUPPLIMENTAL PROVISIONS) ACT 1961 (NO.

39 OF 1961)

BETWEEN

SOUTHERN HOTEL SLIGO LIMITED

APPLICANT

AND

IARNRÓD ÉIREANN

RESPONDENT

[2007] IEHC 254

[No. 1814 S.S./2006]

THE HIGH COURT

COURTS

Jurisdiction

District Court -- Costs- Whether jurisdiction to award costs under Act - Whether inherent jurisdiction in District Court to award costs - Meaning of civil proceedings - Nature of procedure - The State (O'Flaherty) v O'Floinn [1954] IR 295, Kerry County Council v McCarthy [1997] 2 ILRM 481 and Ex parte Waldron [1986] QB 824 considered; Attorney General v Crawford [1940] IR 335 and The State (Attorney General) v Shaw [1979] IR 136 followed - Rules of the District Court 1997 (SI 93/1997), O 51 - Courts (Supplemental Provisions) Act 1961 (No 39), s 52 - Environmental Protection Agency Act 1992 (No 7), s 108 - Finding District Court not having jurisdiction to award costs (2006/1814SS - Hedigan J - 13/7/2007) [2007] IEHC 254

Southern Hotel Sligo Ltd v Iarnród Éireann

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S52

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S108

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S12

DCR O.51 r1

BRENNAN v O'BRIEN 1960 103 ILTR 36

SOUTHERN HEALTH BOARD v REEVES-SMITH 1980 IR 26

MAGISTRATES COURT ACT 1980 S64(1)(a) (UK)

CONSTITUTION ART 34.3.4

COURTS (ESTABLISHMENT & CONSTITUTION) ACT 1961

COURTS OF JUSTICE ACT 1924 S91

DCR O.36

EX PARTE WALDRON 1985 3 WLR 1090 1986 QB 824

COURTS OF JUSTICE ACT 1924 S77(a)

AG v CRAWFORD 1940 IR 335

CUSTOMS CONSOLIDATION ACT 1876 S186 (UK)

DCR 1926 r.37

STATE (AG) v SHAW 1979 IR 136

DILLANE v IRELAND 1980 IRLM 167

STATE (O'FLAHERTY) v O FLOINN 1954 IR 295

KERRY CO COUNCIL v MCCARTHY 1997 2 ILRM 481 1997/9/3139

1 JUDGMENT of Mr. Justice Hedigan delivered on the 13th day of July, 2007 .

2 This is a consultative case stated by Judge Oliver McGuinness of the District Court who is assigned to the District Court area of Sligo. It arises from an issue as to costs which emerged at the end of proceedings taken before him under s. 108 of the Environmental Protection Agency Act 1992.

3 The facts of the case were as follows; the applicant is the owner of the former Great Southern Hotel which is situated beside the railway station in Sligo town. The applicant complained under s. 108 against the respondent who over many years has made a practice of leaving its trains with their engines running all night beside the above hotel. The reason it did this was apparently because the train engines took a very considerable length of time to warm up. If they turned the engines off at night then early morning train services would be badly delayed.

4 The applicants argued that this practice was a nuisance and greatly detracted from the enjoyment of the hotel by its guests and damaged the hotel's business. The District Judge set out the case stated as follows:

5 2 "1. This is a consultative case stated by me Oliver McGuinness, Judge of the District Court assigned to the District Court area of Sligo, District No. 2 pursuant to Section 52 of the Courts (Supplemental Provisions) Act 1961.

6 2. At Sligo District Court on the various dates referred to below I heard a complaint brought by the Complainant under section 108 of the Environmental Protection Agency Act 1992. 11 arose from the then practice of the Respondent of leaving train engines running overnight at Sligo Railway Station. The Applicant operates a hotel nearby. A copy of the Notice of Application to the Court is annexed hereto.

7 3. On the 8th of July 2004 the matter was listed before me for hearing. There was no appearance for the Respondent.

8 4. While the first witness for the Plaintiff was giving evidence a representative from Messrs. Hegarty & Armstrong Solicitors, Sligo came into Court and informed me that the leg al department of C.I.E. had contacted them and said that they had understood that the case would be adjourned by agreement with the Applicants solicitor. Some misunderstanding had evidently occurred as they had been informed by an employee of the Respondents who was actually in court that the case was proceeding.

9 5. In view of what had happened they were requesting that the matter be adjourned although the case had in fact started, I agreed to the adjournment on the basis that the costs of the day were to be awarded to the Applicants.

10 6. The matter was adjourned for mention to the 15th of July 2004 and later for hearing on a special date of the 19th of July 2004.

11 7. The substantive hearing of the matter took place on the 19th of July 2004 and I heard evidence from both parties.

12 8. The Complainant is the owner of a hotel (formerly the Great Southern Hotel) which is situated adjacent to the Railway Station in Sligo.

13 9. The Respondent, at the time of the proceedings, had a practice whereby the trains parked overnight at the railway station in readiness for the journey the following morning, were left running.

14 10. The Complainant claimed that the noise made by the train engines prevented its guests from sleeping and was the subject of considerable complaint to the detriment of its business.

15 11. The position adopted by the Respondent was that the practice of keeping the trains running had been in place virtually since the railway station in Sligo had opened and that the particular trains had been commissioned in the 1970's and they were always kept running over night when in Sligo Station. For technical reasons it was not possible to shut them down and there was no realistic alternative to leaving them running at the station. The Respondent also argued that the Complainant had worsened the impact of the noise by extending the Hotel in the direction of the station.

16 12. In the course of the hearing I was told that the trains were due to be replaced with more modern rail cars in December 2005 and it would not be necessary to keep them running in the same way. In the meantime the Respondent would commence a practice of detaching the locomotives from the trains and would park them at the location in the station which was at the greatest distance from the Hotel.

17 13. On this basis I adjourned the proceedings initially for 7th October 2004 and there were further adjournments up to the 27th of April 2006.

18 14. When the matter was listed on the 27th of April 2006 I was informed that in the intervening period the replacement of the trains had in fact taken place and that the Complainant was not looking for any further relief from the court other than its costs of the proceedings.

19 3 15.1 indicated to the Solicitors that they should sort out the matter of costs between themselves and if they could not I would adjudicate on the costs myself.

20 16. The solicitor for the Respondent indicated that an order for costs would be opposed but without prejudice to this position he requested details of the Applicants costs. I adjourned the matter to the 8th June 2006 for further argument.

21 17. When the case resumed the solicitor for the respondent submitted that I do not have jurisdiction to make an award of costs in a case such as this on the following grounds:-.

22 a) Section 108 of the Environmental Protection Agency Act 1992 which created the jurisdiction which the complainant had sought to use provides that:-

23 'the Court may order the person or body making, causing or responsible for the noise to take the measures necessary to reduce the noise to a specified level or to take specified measures for the prevention or limitation of the noise and the person or body concerned shall comply with such order.'

24 b) The Section does not provide for any additional or consequential order and if there was to be a jurisdiction to order payment of costs it would have to be provided for in the Section.

25 c) The intention of the Legislature in introducing this procedure was to provide a simple and informal method of resolving such noise issues between neighbours (which would commonly involve barking dogs or playing music excessively loud or the like). The absence of provisions entitling the Court to order payment of costs was consistent with this approach. The use of the Section to resolve this case which involved issues of public importance relevant to the provision of a train service was never appropriate.

26 d) Order 51 Rule 1 of the District Court Rules gives jurisdiction to make an award of costs in Civil Matters. Order 36 Rule gives a similar but more limited jurisdiction in Criminal matters. He submitted that the subject case did not fall into either category.

27 e) The form of the Order to be made by the Court was specified in Order 96 Rule 3 of the District Court Rules which reads

28 f) 'Where upon hearing such complaint, the Court makes an order under the said Section 108(1), the order shall be in the Form 96.16 Schedule C.'

29 g) The Rule is mandatory in its terms and the form in question, a copy of which is attached to this case stated, makes no reference to costs. This is consistent with the Section of the Act.

30 h) Furthermore, neither the Act nor the rules of court provided any mechanism for the collection of any costs which might be awarded and the court would not make an order which was incapable of enforcement.

31 18. The solicitor for the Claimant argued as follows:-

32 a) As the District Court had entertained this matter on the 8th July 2004 and I had in fact made an order for costs on that day the Court should continue to have jurisdiction in that regard. (In response to this the Respondents solicitor pointed out that at that particular time all they were trying to do was rescue the situation which arose from the non appearance of the...