The Estate of Lord Inchiquin (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 11 November 1914
• Date: 11 November 1914
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Lord Inchiquin (No. 2) (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1915.

Land Purchase Acts — Compulsory Purchase — Costs of Sale — Discretionary Power to award — Exercise of Discretion — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 50 — Irish Land Act, 1909 (9 Edw. 7, c. 42), Part IV — Land Commission Rules of March, 1897, Order XLVI, Rule 1.

The Judicial Commissioner, in exercising his discretionary power to grant or refuse to an owner, whose lands have been compulsorily acquired by the Land Commission under the provisions of Part IV of the Irish Land Act, 1909, the costs of the sale as against the Land Commission, is not bound by any overriding principle of law entitling the owner to be allowed such costs in the absence of special reasons for disallowing them.

Appeal by the owner, Lord Inchiquin, from an order of Wylie J. refusing, as a matter of discretion, the application of the owner that the costs of sale properly and necessarily incurred by him in the proceedings herein, incidental to the acquisition of certain of his lands by the Land Commission under the compulsory provisions of the Irish Land Act, 1909, when taxed and ascertained, up to and including all costs of and incidental to the distribution of the purchase-money, be ordered to be paid by the Land Commission.

Lord Inchiquin was entitled as tenant for life in possession to certain estates situated in County Clare. On the 17th April, 1911, the Estates Commissioners wrote to him making a proposal for the purchase, under sect. 6 of the Irish Land Act, 1903, as amended by the Act of 1909, of portions of the estates, consisting of certain tenanted and untenanted lands, comprising the lands of Mooghaun north, containing 228a. 0r. 22p., and Ballygirreen, containing 133 acres, and the lands of Mooghaun south, with part of Ayleacotty, containing 93a. 2r. 2p., all adjoining his demesne of

Dromoland, at the sum of £6658. The owner objected to this proposal on several grounds. On the 14th June, 1911, the Estates Commissioners sent two final offers, under sect. 43 of the Act of 1909—one for the purchase of the said lands of Mooghaun north and Ballygirreen, at the sum of £5645, and the other for the purchase of the said lands of Mooghaun south, with part of Ayleacotty, at the sum of £1013. These final offers were not accepted, and were duly published in the Dublin Gazette, pursuant to the provisions of Part IV of the Act of 1909. The owner thereupon served two notices of motion, objecting on certain statutory grounds to the acquisition of the lands re-spectively mentioned in the said final offers. Before these applications came on for hearing, the Estates Commissioners made a new proposal whereby they offered to forego their claim to 86a. 2r. 30p., of the lands of Ballygirreen, and to take instead 296a. 3r. 22p. of the adjoining lands of Ballynacragga, together with the other lands mentioned in the said final offers. They thereupon withdrew the two final offers already published, and on the 17th January, 1912, made a new proposal for the purchase, under sect. 6 of the Act of 1903, as amended by the Act of 1909, of the said lands at the sum of £10,022. The owner objected on the ground of inadequacy of price. On the 27th February, 1912, the Estates Commissioners sent a final offer, under sect. 43 of the Act of 1909, for the purchase of the said lands at the said sum. This final offer was not accepted, and was duly published in the Dublin Gazette. The owner thereupon applied to Mr. Justice Wylie to fix the price under sect. 63, sub-s. 1, of the Act of 1909. On the 20th June, 1912, Mr. Justice Wylie fixed the price at the sum of £10,690, and allowed the owner the costs of the application to be paid by the Land Commission. The final schedule of incumbrances was duly vouched. Appearing thereon were two head rents, and a mortgage vested in the Representative Church Body. On the allocation of the purchase-money, the owner claimed that the costs of making title to these, as well as to the residue of the purchase-money, and all costs of and incidental to the compulsory acquisition of the lands by the Estates Commissioners, should be paid by the Land Commission. Mr. Justice Wylie made an order refusing the application, on the ground of want of jurisdiction. On appeal, the Court of Appeal reversed this order, holding that the Judicial Commissioner had jurisdiction, in the exercise of his discretion, to order the costs in question to be paid by the Land Commission (1). On the matter again coming before Mr. Justice Wylie, he made an order refusing the application, as a matter of discretion, on certain stated grounds. From this order the owner now appealed. The judgment of Mr. Justice Wylie was as follows:—

Wylie J.:—

In this case the vendor has applied for an order that the costs of sale properly and necessarily incurred by the owner, up to and including all costs of and incidental to the distribution of the purchase-money, be paid by the Land Commission. The ground, and the only ground, on which the application is based is that the sale took place under what are called the compulsory clauses of the Land Act of 1909. When a similar application was first made to me in this case, I was of opinion that I had no jurisdiction to make such an order, on the ground that the Land Commission were, in the discharge of a statutory duty, merely exercising their statutory powers in a legal and proper manner, and that the statute made no provision for payment by them of such costs, but indicated, as I thought, a clear intention to the contrary. The Court of Appeal, however, have held that prior to the passing of the Act of 1909, conferring compulsory powers, I had a general discretionary jurisdiction, under the Land Purchase Acts and rules, over costs in all matters coming before me, which extended to matters coming under this new jurisdiction, and that there was nothing in the Act of 1909 to take away this general discretionary jurisdiction: In re Lord Inchiquin's Estate (1).

That being so, I am now asked in the exercise of this discretionary power to make the order applied for in this particular case. The Court of Appeal declined to indicate or

express any opinion as to how my discretion ought to be exercised, except that the Lord Chief Baron says that (1), “In my judgment the discretion of the judge is to be exercised in each case according to the circumstances of the case, and I consider that under no circumstances could that discretion be properly exercised if there was an omission to take into consideration the fact that the purchase was compulsory and not voluntary.” Now no one could question the correctness of the principle so laid down by the Lord Chief Baron, but it clearly does not mean what, I think, Mr. Jellett tried to read into it, that from the mere fact of the sale being compulsory I ought to grant the application, because that would deprive me of the very discretion which the Court of Appeal has held I possess.

Now, as I have said, Mr. Jellett based his application solely on the ground that the Land Commission purchased the lands under their compulsory powers, and, after referring to the authorities dealing with costs in such cases, asked the question: Is there anything peculiar about compulsory purchase under the Land Purchase Acts? Well, I think Mr. Jellett has discovered ere this some striking peculiarities. I know that owners of land, as well as the Estates Commissioners and the Congested Districts Board, were not long in discovering them.

Let us see how it works. Under the provisions of sect. 42 of the Act of 1909, the Estates Commissioners first try...