The Earl of Cork and Another v The County Council of The County of Cork and The Lord Mayor, Aldermen, and Burgesses of The County Borough of Cork

• Jurisdiction: Ireland
• Judgment Date: 05 April 1903
• Date: 05 April 1903
• Court: King's Bench Division (Ireland)

The Earl of Cork and Another

and

The County Council of the County of Cork and the Lord Mayor, Aldermen, and Burgesses of the County Borough of Cork (2).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Landlord and tenant — Lease — Covenant to indemnify landlord — Taxation — Poor rate — County and district charges — Union charges — Segregation — Local Government (Ireland) Act, 1898 (61 & 62 Vict. c. 37).

By a lease, dated 4th May, 1892, the plaintiffs demised to the late Board of Control certain lands, subject to a rent made payable “over and above all rates, taxes, assessments, and impositions whatsoever now payable, or hereafter to be imposed by Act of Parliament, or otherwise, on landlord or tenant in respect of said premises (landlord's proportion of poor rate, public water rate, and income tax only excepted).” Under the Local Government (Ireland) Act, 1898, the district in which the lands so demised were situated became an urban district, and the lease became vested in the defendants.

The plaintiffs were rated upon half the rent payable to them under the

lease, on the basis that the premises were demised for public purposes, and four demand notes for two years' poor rate up to February, 1901, were served upon the plaintiffs, and the amount due thereunder paid by them.

On Case Stated by the Judge of Assize on a County Court appeal, where the plaintiffs claimed repayment of such proportion of the amount so paid by them as did not consist of union charges:—

Held, that the plaintiffs were entitled to recover such proportion of the new poor rate as consisted of county and district charges.

Semble: In such a case the poor rate is divisible, that portion of it described as union charges being “of the same nature” as the former poor rate.

Case stated for the opinion of the King's Bench Division by the Right Hon. Mr. Justice Gibson on the hearing before him, at the Spring Assizes, 1903, for the county of Cork, East Riding, of a civil bill appeal by the defendants from a decree given by his Honour the County Court Judge in an action brought to recover £14 15s. money paid by the plaintiffs as landlords in respect of certain rates. The case stated was to the following effect:—

By lease, dated 4th May, 1892, made by the plaintiffs to the Commissioners for the general control and correspondence and for the superintending and directing the erection, establishment, and regulation of asylums for the lunatic poor in Ireland, known as the Board of Control, part of the lands of Shanakill, in the county of Cork, were demised to the Board of Control for a term of 200 years at a yearly rent of £92 7s. 4d., payable to the plaintiffs “over and above all rates, taxes, assessments, and impositions whatsoever now payable, or hereafter to be imposed by Act of Parliament, or otherwise, on landlord or tenant in respect of said premises (landlord's proportion of poor rate, public water rate, and income tax only excepted)”; and the said lease contained a covenant on the part of the lessees to pay the rent “clear over and above all taxes as aforesaid.”

There was a second lease, dated 2nd July, 1892, between the same parties of another part of the lands of Shanakill at a yearly rent of £16 18s., which contained like provisions.

It was admitted that the said leases became vested in the defendants under the Local Government (Ireland) Act, 1898.

The plaintiffs were rated on half the rent on the basis that the premises were demised for public purposes, and four demand notes for two years' poor rate up to February, 1901, were served upon the plaintiffs and paid by them.

The particulars of the poor rate contained in the demand notes were in the following form:—

CORK.

General District Poor Rates for the Year ending 28th February, 1901.

Rates in the Pound in this Rural District in respect of

	County Charges.*	Union Charges.	District Charges.	Total.
	s.	d.	dec.	s.	d.	dec.	s.	d.	dec.	s.	d.	dec.
Levied on Agricultural Land	0	11	74	1	1	82	0	6	14	2	7	70
Levied on other Hereditaments	0	3	00	2	5	00	1	3	00	4	11	00
Deducted in respect of Agricultural Grant	0	3	26	1	3	18	0	8	86	2	3	30

For the plaintiffs it was contended, on the hearing of the appeal, that it lay upon the defendants to show what portion (if any) of the present poor rate was to be allowed them under the description of “landlord's proportion of poor rate”; that in the absence of the defendants so doing the plaintiffs were entitled to recover all the poor rate paid in respect of the premises; and that in any case the plaintiffs were entitled to be paid so much of the poor rate as consisted of county and district charges, which latter amount was all that was sued for in the present action.

For the defendants it was contended that the county at large and district charges comprised considerable items representing the old poor rate; that the Local Government (Ireland) Act, 1898, provided no means of segregating these items; that the poor rate under the said Act was entire; and that the plaintiffs had no right of recoupment for any part thereof.

The following questions were submitted for the decision of the Court:—

1. Were the defendants liable to pay the plaintiffs the proportion of the poor rate under the Local Government (Ireland) Act, 1898, consisting of county and district charges? and

2. Should the decree be affirmed, reversed, or varied?

H. D. Conner, K. C., and Lawrence, for the plaintiffs:—

The covenants by the lessees, which clearly distinguish between poor rate and county cess, are explicit, viz. to indemnify the landlords against all rates beyond those specially excepted, i.e. landlord's proportion of poor rate. No proportion of such rate can be described as the landlord's proportion, and we submit the defendants were bound to pay the entire poor rate. If, however, it be necessary to make any segregation of the various rates levied under the name of poor rate by the County Council, the onus rests upon the defendants, who have the materials enabling them to do so, to say what sum represents expenses formerly raised by the old poor rate. A covenant to indemnify a landlord applies as well to rates made on half rent as to those on lands and buildings: Greene v. Thornton (1).

The expenses of the guardians of a union, strictly so called, were expenses for the relief of the poor; all these expenses are comprised in union charges, and the duties of the guardians were not affected by the Local Government Act, 1898, except so far as relates to the levying and collecting of poor rate in so much of a county as was not comprised in an urban county district: sections 6 and 43 of the Local Government (Ireland) Act, 1898.

The provisions in the Local Government Act, 1898, making all expenses raisable by a rate called poor rate were never intended and did not operate to change the liabilities of landlord and tenant under covenants in existing leases, so as to throw upon the landlord expenses which he had never previously borne. Duggan's Estate (2) leaves the question open.

The poor rate may be indivisible as regards the person who pays it, but not as between him and others who may be liable to indemnify him. See section 54, sub-section 11.

Matthew J. Bourke, K.C., and Hoare, for the defendants:—

The Local Government Act, 1898, created no new tax. Poor rate is now to all intents and purposes a rate of the same nature and with the same incidence as the old poor rate, which by the

terms of the leases the plaintiffs are bound to pay. Poor rate is substituted for grand jury cess and county...