The State (Crothers) v Kelly

JurisdictionIreland
JudgeDoyle J.
Judgment Date02 October 1978
Neutral Citation1978 WJSC-HC 2198
CourtHigh Court
Docket NumberNo. 115S.S./1976
Date02 October 1978

1978 WJSC-HC 2198

THE HIGH COURT

No. 115S.S./1976
STATE (CROTHERS) v. KELLY
IN THE MATTER OF THE CONSTITUTION
OF IRELAND AND IN THE MATTER OF THE
HOUSING ACTS 1966 TO 1974

BETWEEN:

THE STATE (AT THE PROSECUTION OF SEAMUS CROTHERS)
Plaintiff

and

DISTRICT JUSTICE JAMES A.KELLY, THE LORD MAYOR ALDERMEN AND BURGESSES OF DUBLIN AND THE ATTORNEY GENERAL
Defendants
1

Judgment of Doyle J. delivered the 2nd of October, 1978

2

Seamus Crothers, the Prosecutor, is a married man with one child: his wife when this case was at hearing was expecting the birth of another child in the near future. In May 1975 Mr. and Mrs. Crothers entered into occupation of a flat situate at 31b Countess Markievicz House, City Quay, Dublin, hereinafter referred to as "the flat". The flat is a dwelling provided under the enablement of the Housing Act 1966by the Lord Mayor, Aldermen and burgesses of Dublin, hereinafter referred to as ldquo;the Corporation".

3

The legal status of the Crothers' occupancy is somewhat obscure. When they moved into the flat they did so at the invitation of one Mrs.Phyllis Byrne, the Corporation's tenant. Mrs. Crothers, prior to her marriage, had lived in Countess Markievicz House and she and Mrs. Byrne were friends. The invitation was given as Mrs. Byrne was going away on holiday and did not wish the flat to be unoccupied during her absence. Mrs. Byrne died whilst on holiday. Subsequently Mrs. Crothers attended at the appropriate office of the Corporation and made known her desire to remain in occupation of the flat, offering a payment which she regarded as rent. Her husband avers that he received a request by letter from the Corporation for "five weeks rent at £2.20 per week." This letter is not now forthcoming but Mr. Crothers states that his wife made the requested payment, totalling £11.00. It is conceded that Mr. Joseph O'Neill, a rent collector in the employment of the Corporation issued a receipt for this amount. The receipt is in form a printed paper bearing date 8 July 1975 with the heading "Dublin Corporation Housing Department 31b countess Markievicz Hse.. 006 Instalments on said premises". Certain other printed legends have been erased including the words "in respect of Rent" and the following written additions have been made: "Parole Tenant £11 mesne Rates" No tenant's name appears. Subsequent weekly payments of £2.20 were made and receipts issued bearing the added words "mesne rates", the latest bearing date 2 March 1976, although on 11 July 1975 a combined Notice to Quit and Demand for Possession was served upon Mr. Crothers by the same rent collector, requiring him to deliver up possession of the flat on 28 July 1975. Subsequently the Corporation caused to be issued a Summons requiring Mr. Crothers to attend at the Metropolitan District Court on 12 December 1975 and show cause why a Warrant under section 62 of the Housing Act 1966should not issue for delivery of possession of the flat. The Summons, further, alleged that the flat had formerly been let to Mr. Crothers as tenant from week to week of the Corporation.

4

What transpired at the hearing before the District Justice is not precisely clear. The case for the Corporation was conducted by Mr. Daniel Brilley, their Assistant Law Agent. Mr. Crothers attended with his wife but he was not professionally represented. Mr. Brilley frankly admits that he has "no specific recollection of the case for the reason that I present approximately 60 such cases ...in any given week." He cannot recall if Mr. and Mrs. Crothers were present. Mr. O'Neill, the rent collector, was called as a witness on behalf of the Corporation and he proved service of the Notice to Quit and Demand for Possession, but it does not appear that any other evidence, oral or documentary, was offered as to the circumstances of the alleged tenancy.

5

The prosecutor was not invited to offer evidence and did not do so. In an affidavit sworn in support of his application for a Conditional Order of certiorari, he states:

6

"Paragraph 9 On the said the 12th day of December 1975 my wife and I attended at District Court 3, Morgan .Place, Dublin which was presided over by the first-named defendant, District Justice James A. Kelly. When the Court sat at 10.30 a.m. a group of Corporation rent collectors together took the Oath on one Bible. My case was then immediately called, and the rent collector took the witness stand. I also took the other witness stand. I am not certain in detail what the rent collector said, or gave evidence about, but I do know that he said "this is a squatters case". The Justice did not ask me if I wanted to give evidence or to cross-examine the rent collector. The Justice told me that the Corporation would fix me up with alternative accommodation. I then left the witness-box quite satisfied and the next case was called. I did not lodge any appeal against the Justice's decision.

7

Paragraph 10 Subsequently the rent collector told my wife to "call over to Mr. O'Donoghue in the Corporation. This she did on or about Tuesday the 9th day of March 1976. However the said Mr. O'Donoghue was not available in the...

To continue reading

Request your trial
3 cases
  • Nolan v Irish Land Commission
    • Ireland
    • High Court
    • 15 December 1978
    ... ... in The State ( Moore) .v. Irish Land Commission (1953) 87 I.L.T.R. 150,155. To hold that there must be a choice ... ...
  • O'Reilly v County Council of the County of Wicklow
    • Ireland
    • High Court
    • 14 November 2014
    ...CO COUNCIL 2000 1 IR 479 2000 2 ILRM 81 1999/11/2713 MCDONALD v BORD NA GCON (NO 2) 1965 IR 217 100 ILTR 89 (CROTHERS), STATE v KELLY 1978 ILRM 167 DUNDALK TOWN COUNCIL v LAWLOR 2005 2 ILRM 106 2005/17/3524 2005 IEHC 73 DUBLIN CITY COUNCIL v LIFFEY BEAT LTD 2005 1 IR 478 2005/17/3447 200......
  • State (O'Rourke) v Kelly
    • Ireland
    • Supreme Court
    • 1 January 1983
    ... ... Cases mentioned in this report:— 1 Corporation of Dublin v. McDonnell (High Court: 3rd July, 1968). 2 The State (Healy) v. Donoghue [1976] I.R. 325. 3 The State (Crothers) v. Kelly (High Court: 2nd October, 1978). 4 East Donegal Co-Operative v. The Attorney General [1970] I.R. 317. 5 Bristol District Council v. Clarke [1975] 1 W.L.R. 1443. Appeal from the High Court. The first respondent, a District Justice, ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT