The Estate of Lord Inchiquin

• Jurisdiction: Ireland
• Judgment Date: 23 April 1914
• Date: 23 April 1914
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Lord Inchiquin (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.

1914.

Land Purchase Acts — Compulsory purchase — Costs of sale — Jurisdiction of Judicial Commissioner to award costs — 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 16th March, 1897, Order XLVI, Rule 1.

The Judicial Commissioner has discretionary power under Order XLVI, Rule 1, of the Land Commission Rules of 16th March, 1897, enacted pursuant to sect. 50 of the Land Law (Ireland) Act, 1881, to award the costs of sale and of the redemption of superior interests as against the Land Commission to an owner of lands which have been compulsorily acquired by the Estates Commissioners under the provisions of Part IV of the Irish Land Act, 1909.

Appeal by the owner, Lord Inchiquin, from the order of Mr. Justice Wylie, made on the ruling of the final schedule of incumbrances in this matter on the 9th March, 1914, refusing the application of the owner that the costs of sale properly and necessarily incurred by him in the proceedings herein, 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 Act of 1903, as amended by the Act of 1909, of portions thereof, 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 respectively 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 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. The owner claimed that the costs of making title to these, as well as to the residue, and all costs of and incidental to the compulsory acquisition of the lands by the Estates Commissioners, should be paid by the Land Commission.

The judgment of Mr. Justice Wylie was as follows:—

Wylie, J.:—

In this case a question is raised, at No. 8, on the final schedule, as to whether the costs of sale are payable out of the purchase-money or by the Land Commission. The estate has been purchased by the Land Commission under the compulsory powers conferred by the Act of 1909, and, on this ground, the owner contends that the costs of sale are payable by the Land Commission.

It was not and could not be suggested that, in the case of all sales under the Land Purchase Acts prior to the Evicted Tenants Act of 1907, the costs of sale were not paid by the vendor or out of the purchase-money, though there were some provisions in the Acts, such as sect. 14 of the Act of 1885, and s. 23, sub-s. 13, of the Act of 1903, requiring the Land Commission to do certain work connected with the sale without charge to the vendor. Then sect. 5, sub-s. 3, of the Evicted Tenants Act, where lands are taken compulsorily, requires the Land Commission to pay certain specified costs and expenses connected with the sale and distribution of the purchase-money. But when we come to the compulsory provisions of the Act of 1909, there is no provision for the payment of costs except sect. 63, sub-s. 3, which gives a discretionary power to the Judicial Commissioner to order the costs of certain applications by way of appeal from the Estates Commissioners to be paid by the Land Commission or the Congested Districts Board; and, in this case, in exercise of that discretionary power, I ordered the Land Commission to pay the vendor the costs of an appeal. But this sub-section has, in my opinion, no application to the general costs of sale. Besides, section 64 provides that in the case of a compulsory purchase under the Act of 1909, “all the like consequences shall ensue as if the estate … had been purchased by the Land Commission … by agreement entered into under the Act of 1903.” Counsel for the vendor referred to the fact that where lands are taken compulsorily under the Lands Clauses Acts, the undertakers have to pay costs, but those Acts expressly impose a liability to pay certain costs, and owners can only recover such costs as the statutes give them.

On these grounds I hold that the costs of sale, other than those given by my order of the 20th June, 1912, are payable out of the purchase-money.

Jellett, K.C., and J. E. Walsh, for the appellant:—

The Judicial Commissioner has jurisdiction under Order XLVI, Rule 1, of the Rules of 1897, to order the costs of sale to be paid by the Land Commission. That order was made pursuant to the jurisdiction given by sect. 50 of the Act of 1881. The jurisdiction as to costs in Land Commission matters given by that section is even wider than that conferred on the Court in England by sect. 5 of the Supreme Court of Judicature Act, 1890. The development of the jurisdiction as to costs in England is traced in Cripps on Compensation (5th Ed., p. 257). Before the Judicature Acts the Court had no power to award costs in proceedings under statute, except such costs as the statute authorized. The Supreme Court of Judicature Act, 1875 (which contained a similar provision to sect. 53 of the Judicature Act (Ireland), 1877), and Order LV, Rule 1, of the Rules of the Supreme Court, 1883 (corresponding to Order XLV, Rule 1, of the Rules of the Supreme Court (Ireland), 1905), placed all costs, subject to certain specified exceptions, of and incident to proceedings in the Supreme Court in the discretion of the Court or judge. But it was held that this did not give the Court power to award costs in cases where the special statute was silent on the point; In re Mill's Estate (1), in which Ex parte Mercer's Company (2), where the contrary had been held, was not followed. The powers of the Court in England have, however, been extended by sect. 5 of the Supreme Court of Judicature Act, 1890. Under that section it has been held that the Court has power to give costs of and incidental to a petition for payment out of moneys under an Act which contains no provisions as to such costs: In re Fisher (3); and to give costs in cases under sect. 80 of the Lands Clauses Act, 1845, in which such power is expressly excepted: In re Schmarr (4). The special sections in the Land Purchase Acts relied on by Wylie, J., in his judgment should not be construed as ousting jurisdiction. Sect. 5, sub-s. 3, of the Evicted Tenants Act, 1907, may be read either as designating the fund out of which costs are to be paid, or as making the awarding

of costs compulsory instead of being discretionary. Sect. 63, sub-s. 3, of the Act of 1909 should be read, not as taking away from, but as adding to, jurisdiction. In In re Walter's Estate (1), Meredith, J., held that, in cases submitted for the opinion of the Judicial Commissioner under sect. 23, sub-s. 1, of the Act of 1903, he had no jurisdiction to award costs, the reason being that, at that stage of the sale, the estate was under the jurisdiction of the Estates Commissioners, and might never come under his jurisdiction. The same reason, whether that view was right or wrong, is sufficient to account for the special provision as to costs in the sub-section in question, and the Judicial Commissioner is thereby given jurisdiction to award costs at the stage when the matter is still under the jurisdiction of the Estates Commissioners. Then as to sect. 64 of the Act of 1909, the primary object of that section is to fix the date of the statutory agreement, which is essential for determining questions as to conversion, solvency as to income for the purpose of the bonus, and many others. All like consequences are to ensue as if the estate had been purchased by the Land Commission by agreement as of that date...