State (Hegarty) v Winters

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1958
• Date: 01 January 1958

The State (Hegarty) v. Winters

THE STATE (at the Prosecution of JOHN HEGARTY)

and

LIEUTENANT-COLONEL JOHN J. WINTERS and in the Matter of the LOCAL AUTHORITIES (WORKS) ACT, 1949, and the ACQUISITION OF LAND (ASSESSMENT OF COMPENSATION) ACT, 1919, and in the Matter of an Arbitration and Award dated the 19th day of November, 1951, and in the Matter of the COURTS OF JUSTICE ACTS, 1924 to 1947

Supreme Court.

Arbitration - Arbitrator - Award - Setting aside of award - Misconduct of arbitrator - Arbitrator viewing land - Only one party to dispute present - Acquisition of land (Assessment of Compensation) Act (9 & 10 Geo. 5, c. 57),s. 3 - Certiorari and mandamus.

C. entered on the lands of H. to do certain works which C. was empowered by statute to do. As a result of such works, damage was caused to H's land. An arbitrator was appointed by the Land Values Reference Committee under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919, to assess the amount of the compensation payable to H. H.alleged and the arbitrator denied that the arbitrator acted throughout the arbitration in a biased manner against H. The arbitrator did go to view the lands in company with the engineer employed by C. and with no one then present on behalf of H. The arbitrator subsequently made a nil award.

H. applied for and obtained a conditional order of certiorari and a rule in the nature of mandamus to quash the award of the arbitrator. H. then applied to have the conditional order of certiorari and mandamus made absolute notwithstanding the cause shown.

Held by the Supreme Court, reversing the High Court, that the action of the arbitrator in going upon the lands the subject-matter of the arbitration with only one of the parties might reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. The fundamental rule that it is necessary, not alone that justice be done, but that it must seem to be done, was broken and the award could not be allowed to stand.

The appeal was accordingly allowed and the conditional order of certiorariwas made absolute notwithstanding the cause shown.

Certiorari.

Application to make absolute, notwithstanding cause shown, a conditional order of certiorari obtained by the prosecutor, John Hegarty, on the 16th May, 1952, directed to the respondent, Lt.-Col. winters, requiring him to bring before the Court his award, dated the 19th November, 1951, as arbitrator in an arbitration between the prosecutor and the Clare County Council, for the purpose of having the said award quashed.

The prosecutor's lands were entered by the Clare County Council under the powers conferred on them by the Local Authorities (Works) Act, 1949, for the purpose of carrying out certain works thereon. As a result of the said works, the prosecutor claimed that his lands had been injuriously affected and the County Council applied under the Acquisition of Land (Assessment of Compensation) Act, 1919, to the Land Values Reference Committee to appoint an arbitrator between the prosecutor and the Council as to the compensation payable for the damage. By order, dated the 29th June, 1950, the said Committee appointed Lt.-Col. John J. Winters to be the arbitrator. The arbitration was held on the 14th November, 1951, in the Court-house, Ennis, and both the prosecutor and the Council were represented by solicitors.

The application for the conditional order of certiorari was grounded upon an affidavit made by the prosecutor in which he stated that throughout the arbitration the respondent had acted towards him in a hostile and irritated manner. He had told the prosecutor that he, the prosecutor, did not know what he was talking about. During the cross-examination of the prosecutor, he had warned the prosecutor that if he did not answer correctly he would have to leave the witness box, this remark was repeated by the respondent several times. The prosecutor further stated that at no time did the arbitrator interrupt or rebuke any of the County Council's witnesses, although the solicitor for the County Council had great difficulty in getting one of his witnesses to answer any questions. The prosecutor further stated that at one stage the arbitrator asked an employee of the County Council for information on a certain point, although the said employee had not been sworn to give evidence. The prosecutor also alleged that at the end of the arbitration, the arbitrator remained in the room for some time, smoking and chatting with the County Council's solicitor and the County Council witnesses, including a Mr. Patrick Sweeney, the County Council's engineer, who had given evidence. After about fifteen minutes the arbitrator and Mr. Patrick Sweeney had left Ennis in a motor car and had gone in the direction of the prosecutor's lands, which were situate near the Ennis to Ennistymon road. He alleged that the arbitrator and the said Mr. Patrick Sweeney visited his lands in the early afternoon of the 14th November, 1951, and walked the said lands together without anyone being present on behalf of the prosecutor. The prosecutor stated that he was anxious to point out certain concealed stumps and other concealed items of damage to the arbitrator when walking the lands, but was given no opportunity of so doing. Neither the prosecutor nor his valuer were invited to attend on the said lands with the arbitrator and Mr. Patrick Sweeney, nor were they made aware of their visit until after they had left the lands.

In an affidavit made by way of showing cause the arbitrator stated that he might have said to the prosecutor that he did not know what he was talking about, but that he did not address him in an angry manner. He admitted that he told the prosecutor more than once that if he did not answer his solicitor "Yes" or " No" he would have to ask him to leave the witness box. He also admitted that he walked over the lands with Mr. Sweeney, the County Council's engineer, and with no one else; he stated, however, that during that period the claim of the prosecutor was never discussed between them. The arbitrator further stated that when the hearing of the evidence had concluded he had stated that he proposed to go out and see the lands and that he had made that statement before any person who was present in the room had left the room. He further stated that he had asked the solicitor for the prosecutor if he minded if Mr. Sweeney showed him where the place was and the said solicitor said that he did not mind. The solicitor in an affidavit sworn by him stated that he had no recollection of this conversation with the arbitrator; he had no recollection of receiving any invitation from Colonel Winters to accompany him or to arrange for the prosecutor to be present at or be represented at the inspection of the lands. He further confirmed that the arbitrator appeared to be hostile to the prosecutor and unnecessarily irritated by his manner of giving evidence during the hearing of the arbitration.

The arbitrator at the conclusion of the arbitration made a nil award, and he ordered the prosecutor to pay the sum of £6 16s. 0d. towards the County Council's costs of the arbitration.

The conditional order of certiorari, dated the 16th May, 1952, was obtained on the following ground:—

The arbitrator acted in excess of jurisdiction in that

(a) he gave the said John Hegarty no opportunity or no adequate opportunity to substantiate his claim for compensation;

(b) he failed to investigate fully and determine the said claim;

(c) he made his award without hearing both sides to the arbitration;

(d) he gave the said John Hegarty no fair opportunity for correcting or contradicting statements prejudicial to his case;

(e) he failed to act in good faith;

(f) he failed to listen fairly to both sides to the said arbitration;

(g) he failed to obtain information in a way which would give a fair opportunity to both parties to correct or contradict any statement prejudicial to their case;

(h) he failed to act in accordance with natural justice.

From this judgment the prosecutor appealed to the Supreme Court (3) on the grounds:—

1, That the learned President of the High Court misdirected himself and was wrong in law and on the facts in allowing the cause shown and in discharging the said conditional order of certiorari.

2, The learned President of the High Court misdirected himself and was wrong in law in holding that the award made by Lieutenant-Colonel Winters was not bad in law on any of the grounds set out in the conditional order.

Cur. adv. vult.

Davitt P. :—

The facts of this matter appear to be briefly as follows.

The Clare County Council in exercise of their powers under the Local Authorities (Works) Act of 1949 executed certain works upon the lands of the prosecutor, Mr. Hegarty. Mr. Hegarty, in accordance with the provisions of that Act, made a claim for compensation in respect of the damage which, he alleged, was caused to his land. As his claim was disputed, it fell to be determined by arbitration under the provisions of the Acquisition of Land (Assessment of Compensation) Act, 1919. The respondent, Col. Winters, had been appointed official arbitrator under that Act in 1950 by order of the Land Values Reference Committee and in due course he entered upon the hearing of the arbitration. The hearing took place at the Court-house, Ennis, on the 14th November, 1951. Both parties were professionally represented: Mr Hegarty by his solicitor, Mr. Blood Smyth, and the County Council by their solicitor, Mr. Thomas Lynch. Witnesses were examined on behalf of both parties, including Mr. Hegarty himself and his engineer, Mr. Bernard Barrett, and the County Council engineer, Mr. Patrick Sweeney.

On the affidavits, some controversy arises as to certain incidents connected with the hearing. It is quite clear, however, that during the course of, or at the conclusion of, the hearing, Col...