W.J. Prendergast and Son Ltd v Carlow County Council

• Jurisdiction: Ireland
• Judge: McCarthy, J.,[NEMDISS]
• Judgment Date: 30 May 1990
• Neutral Citation: 1990 WJSC-SC 1144
• Date: 30 May 1990
• Docket Number: 288/88,[Nos: 288 of 1988 and 361 of 1989]
• Court: Supreme Court

1990 WJSC-SC 1144

THE SUPREME COURT

Finlay, C.J.

Griffin, J.

Hederman, J.

McCarthy, J.

O'Flaherty, J.

288/88

361/89

PRENDERGAST & SON LTD v. CARLOW CO COUNCIL

W. J. PRENDERGAST & SON LTD.

- v -

CARLOW COUNTY COUNCIL

Citations:

PRENDERGAST & SON LTD V CARLOW CO COUNCIL UNREP HIGH O'HANLON 3.6.88 1988/10/2951

MALICIOUS INJURIES ACT 1981 S18

COURTS OF JUSTICE ACT 1924 S61

COURTS OF JUSTICE ACT 1936 S38(1)

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S48

SUMMARY JURISDICTION ACT 1857 S2

COURTS OF JUSTICE ACT 1947 S16

AG, PEOPLE V CONMEY 1975 IR 341

DPP, PEOPLE V O'SHEA 1982 IR 384

BROWN, STATE V FERAN 1967 IR 147

VELLA V MORELLI 1968 IR 11

MALICIOUS INJURIES ACT 1981 S17

COURTS OF JUSTICE ACT 1924 S84

COURTS OF JUSTICE ACT 1936 S38(3)

K (J) V W (K) SUPREME COURT UNREP 19/12/1989

MALICIOUS INJURIES ACT 1981 S18(1)

MALICIOUS INJURIES ACT 1981 S18(2)

GRAND JURIES (IRELAND) ACT 1836

MALICIOUS DAMAGE ACT 1861

LOCAL GOVT (IRELAND) ACT 1898 S5

MALICIOUS INJURIES (AMENDMENT) ACT 1986

GUARDIANSHIP OF INFANTS ACT 1964 S6(a)

GUARDIANSHIP OF INFANTS ACT 1964 S11(5)

FAMILY LAW ACT 1989 S40

COURTS OF JUSTICE ACT 1936 S38(2)

COURTS OF JUSTICE ACT 1936 S38(4)

COURTS OF JUSTICE ACT 1936 S39

COURTS (SUPPLEMENTAL PROVISION) ACT 1961 S51

COURTS (SUPPLEMENTAL PROVISION) ACT 1961 S52

COURTS OF JUSTICE ACT 1936 S38

CONSTITUTION ART 34

MORELLI, IN RE 1968 IR 11

MALICIOUS INJURIES ACT 1981 S18(3)

MALICIOUS INJURIES ACT 1981 S18(4)

MALICIOUS INJURIES ACT 1981 S14(3)

Synopsis:

CASE STATED

High Court

Jurisdiction - Circuit Court - Appeal - Determination - Subsequent request for Case to be stated - Malicious injuries code - No jurisdiction to state Case after determination of appeal - (288/88, 361/89 - Supreme Court - 30/5/90) - 1990 ILRM 749

|W.J. Prendergast & Co. Ltd. v. Carlow County Council|

MALICIOUS INJURIES

Compensation

Claim - Circuit Court - Order - Appeal - Claim dismissed by High Court - Purported appeal from decision of High Court - Appeal not entertained - (288/88, 361/89 - Supreme Court - 30/5/90) - [1990] ILRM 749

|W.J. Prendergast & Son Ltd. v. Carlow County Council|

PRACTICE

Appeal

Supreme Court - Jurisdiction - Malicious injuries - Compensation - Claim in Circuit Court - Claim dismissed on appeal to High Court - Appeal from High Court not prohibited by malicious injuries code - Such appeal barred by general legislation - (288/88, 361/89 - Supreme Court - 30/5/90)

W.J. Prendergast & Son Ltd. v. Carlow County Council|

STATUTORY INTERPRETATION

General legislation

Special enactment - Malicious injuries code - High Court - Appeal from Circuit Court - Appeal determined by High Court - Further appeal from determination - Further appeal expressly excluded by general legislation - Further appeal not prohibited by special legislation - (288/88, 361/89 - Supreme Court - 30/5/90) - [1990] ILRM 749

|W.J. Prendergast & Co. Ltd. v. Carlow County Council|

STATUTORY INTERPRETATION

Literal meaning

Proceedings - Meaning - Malicious injuries - Compensation - Claims - Appeals against determinations of claims - Context of enactment relating proceedings to initial claims - (288/88, 361/89 - Supreme Court - 30/5/90) - [1990] ILRM 749

|W.J. Prendergast & Son Ltd. v. Carlow County Council|

WORDS AND PHRASES

"Proceedings"

Malicious injuries - Compensation - Claim - Claims to compensation - Appeals against determinations of claims - Context of enactment relating proceedings to initial claims - (288/88, 361/89 - Supreme Court - 30/5/90) - [1990] ILRM 749

|W.J. Prendergast & Son Ltd. v. Carlow County Council|

SUPREME COURT

Appeal

Jurisdiction - High Court - Decision - Case Stated - Compensation claimed for malicious injury to property - Applicant's claim succeeded in Circuit Court but failed on appeal to High Court - Refusal of High Court to state Case - Appeal from refusal - Neither appeal entertained - Courts of Justice Act, 1936, ss. 38, 39 - Courts (Supplemental Provisions) Act, 1961, s. 48 - Malicious Injuries Act, 1981, ss. 13, 17, 18 - Constitution of Ireland, 1937, Article 34 - (288/88, 361/89 - Supreme Court - 30/5/90)

|W.J. Prendergast & Son Ltd. v. Carlow County Council|

1 Judgment of McCarthy, J.delivered the 30th day of May, 1990. [NEMDISS]

2 On 26th January 1986 the Applicants" factory at Leighlinbridge, County Carlow was destroyed by fire; this fire was deliberately caused. The Applicants brought an application for compensation under the Malicious Injuries Act, 1981; they succeeded in the Circuit Court where the issue of liability was tried. The County Council appealed and the High Court Judge, O'Hanlon, J., dismissed the application. The Applicants purported to serve a valid notice of appeal to this Court; they also applied in the High Court for a Case Stated pursuant to Section 18 of the 1981 Act. This application was refused by O'Hanlon, J. and they have sought to appeal against that refusal, thereby seeking to bring two appeals before thisCourt. In my judgment, neither appeal should be entertained since neither can be validly brought to this Court.

Compensation for malicious injury

3 There is a long history to such claims. Their origin lies in an attempt to secure the better policing of Ireland by making the ratepayers answerable for damage caused by malicious acts. Derived originally from the Grand Juries (Ireland) Act, 1836 the code was extended to include property of every description the injury to which was a crime punishable on indictment under the Malicious Damage Act, 1861 (see Section 5 of the Local Government (Ireland) Act, 1898). What had begun its statutory life as a policing exercise had, certainly in the aftermath of the second world war, largely, become a means of indemnifying the insurers of property. It was said that the existence of the Malicious Damage Code kept premiums at a relatively low level. The original purpose having largely been lost sight of, in 1981 the Oireachtas made a substituted statutory scheme, restrictingthe area in which compensation could be claimed, establishing a jurisdiction in the District Court and making express provision for the refusal or diminution of compensation in certain cases. In 1986, a far wider restriction was imposed so much so that the opportunity for a successful claim is now greatly reduced. (See Malicious Injuries (Amendment) Act, 1986). This Act did not come into force until the 15th July, 1986.

The Act of 1981

4 The Act established a scheme under which compensation is payable. Whilst creating a jurisdiction in the District Court, it also provides for appeal to the Circuit Court and, in case of a claim brought in the Circuit Court for an appeal to the High Court. It makes express provision (Section 18) for a case being stated by either the District Court or the Circuit Court to this Court. If an application is made in that regard to the District Court or to the Circuit Court, and refused, an appeal lies to the High Court against suchrefusal, quite apart from the general right of appeal to the Circuit Court or to the High Court, as appropriate, in the case of the making of an award, the amount of an award, or the refusal of an award. It makes no provision as to the determination in the High Court on appeal as being final and non-appealable, nor does it enable the High Court to state a case for the Supreme Court.

The Courts of Justice Acts

5 Section 61 of the Courts of Justice Act, 1924provided:-

"Save as in this Act as otherwise expressly provided, an appeal shall lie from any judgment or order of the Circuit Court in civil cases to two judges of the High Court sitting in Dublin. If such two judges agree in their opinion, their decision shall be final unless they certify that their decision involves a question of law or fact of such importance as to be fit to be the subject of an appeal to the Supreme Court, in which case an appeal shall lie at the instance of any party from the decisionof such two judges to the Supreme Court. If such two judges differ in their opinion, they shall affirm with costs the judgment or order appealed against, and an appeal shall lie at the instance of any party from such affirmance to the Supreme Court. The appeal under this section shall be on law and fact or upon either, save that where the appeal from the exercise by the County Court of any particular statutory jurisdiction transferred by this Act to the Circuit Court is expressly or by implication limited by statute to an appeal on questions of law, the appeal from the exercise of that jurisdiction by the Circuit Court shall be similarly limited."

6 This section was repealed by the Courts of Justice Act, 1936which provided as follows:-

"Section 38.-(1) An appeal shall lie from every judgment or order (other than judgments and orders in respect of which it is declared by this Part of this Act that noappeal shall lie therefrom and judgments and orders in respect of which other provision in relation to appeals is made by this Part of this Act) of the Circuit Court in a civil action or matter -"

(a) where such judgment or order is given or made by a judge of the Circuit Court for the time being assigned to and sitting in the Dublin Circuit, to the High Court sitting in Dublin, and

(b) in every other case, to the High Court on Circuit sitting in the appeal town for the county or county borough in which the action or matter resulting in such judgment or...