416 / 432
GAZETTE
JULY 199s
July 1980. The Limerick farm was sold in
April 1982 and the bank applied most of
the proceeds towards satisfaction of the
debt owed by the plaintiffs husband.
The plaintiff sued the solicitors for neg-
ligence and breach of contract and sought
a declaration that the bank did not have an
equitable charge over her share in the
Limerick farm. In a judgment delivered on
31 July 1992, CostelloJ held that the bank
had not obtained a mortgage or charge
over the plaintiff's share and ordered that
it should pay to her the sum of £282,530.52
together with interest and costs. Costello J
also held that the solicitors had not been
negligent because they had instructed the
bank to lodge the proceeds of sale in a
joint account and informed it that the
purchase was to be a joint one. Accord-
ingly the plaintiff's claim against them was
dismissed and it was ordered that she
should pay their costs. The bank appealed
and the plaintiff lodged a cross-appeal on
the basis that Costello J should have exer-
cised his discretion under section 78 of
the Courts of Justice Act 1936 and ordered
that, in addition to the plaintiff's costs, the
bank should pay by way of recoupment
the costs which she was obliged to pay to
the solicitors.
Held
by the Supreme Court (Finlay CJ;
Blayney and Denham JJ concurring) in
dismissing the second named defendant's
appeal and allowing the plaintiff's cross-
appeal: (1) The plaintiff had not been a
party to any loan contract with the bank
regarding the purchase of the Limerick
farm. Accordingly no equitable charge
operated in respect of the plaintiff's half-
interest. The letter of 29 November, even
as confirmed by the letter of 4 April 1979,
did not constitute an agreement by the
plaintiff to create an equitable charge over
her share as security for a loan advanced
solely to her husband. Her proposal to
charge the lands was clearly confined to a
transaction in which a joint loan was
granted and joint accounts were created
in order to implement it. (2) It was not
appropriate for the Supreme Court to con-
sider an argument to the effect that the
bank had a charge over the plaintiff's
share through subrogation to a vendor's
lien because it had not been raised in the
pleadings or in the grounds of appeal. As
a matter of general principle a claim to a
lien must be specifically and specially
pleaded. (3) Given the findings of fact
made in the High Court, if the bank had
succeeded in its claim that the letter of 29
November 1978 did not impose a term
requiring the creation of a joint account as
a condition of the creation of a charge
over the plaintiff's share,
prima facie
the
plaintiff would have been entitled to suc-
ceed against the solicitors. As there had
been a genuine alternative claim and al-
ternative potential liability between the
first named and second named defend-
ants an order under section 78 should
have been made. Accordingly, when the
plaintiff paid the solicitors'costs she would
be entitled to recoup this amount from the
bank.
Reported at [1994] 1 ILRM 137
T r u l oc Ltd v D i s t r i ct Judge L i am
McMenamin and Donegal County Coun-
cil:
High Court (O'Hanlon J) 17 June
1993
Judicial
Rev/ew-Certiorari
-Air Pollution
- Prosecution in respect of emissions from
manufacturing plant - Sufficiency of evi-
dence - Statutoryoffence akin to common
law misdemeanour of public nuisance -
Some special defences dependent upon
the making of regulations and orders un-
der the Act which had not been done yet
- Certainty as to elements of offence -
Criminal charge against a body corporate
- Interpretation Act 1889, section 2(1) -
Air Pollution Act 1987, sections 4, 5, 10,
11, 12, 13, 24
Facts
Under section 24(2) of the Air Pollu-
tion Act 1987, it is an offence for the
occupier of any premises to cause or per-
mit an emission from such premises in
such a quantity or in such a manner as to
be a nuisance. Section 24(3) sets out vari-
ous factors which, if established, will con-
stitute a good defence to a charge under
section 24(2). Section 24(3)(a) identifies
as one of these factors the use of the best
practicable means to prevent or limit the
emission concerned. Other defences listed
by section 24(3) relate to emissions being
in accordance with licences granted un-
der the Act, or an emission limit value, or
a special control area order, or regulations
made under section 25. The applicant
company carried on an adhesive manu-
facturing plant. It was prosecuted by Don-
egal County Council in respect of emis-
sions from the plant. On 29 July 1991 it
was convicted in the District Court on
seven charges under section 24(2) and a
fine of £300 was imposed in respect of
each charge. The applicant sought an
order of
certiorari
to quash the convic-
tions.
Held
by O'Hanlon J in refusing the relief
sought: (1) It was not the function of the
High Court in the context of an applica-
tion for judicial review to examine in
detail the evidence tendered in support of
a prosecution in the District Court with a
view to determining whether that evi-
dence was sufficient to support the con-
viction. (2) In any event there was nothing
to suggest that the evidence tendered in
this case was insufficient to sustain the
convictions. The applicant's factory and
the pollutants emitted from it had been
inspected and tests had been performed.
Local residents had given evidence as to
the offensive smell emanating from the
factory and the respiratory problems from
which they had suffered as a result of the
emissions. If accepted by the district judge
this evidence of nuisance would have
fallen within the definition of 'air pollu-
tion' contained in section 4. (3) Section
24(3) set out grounds which, if estab-
lished, would constitute a good defence.
No evidence had been tendered on behalf
of the applicant in order to establish that it
had used the best practicable means to
prevent or limit the emissions and it was
not incumbent upon the prosecution to
4
prove that it had not. (4) The making of
regulations dealing with the adhesive
manufacturing industry by the Minister for
the Environment under section 10 was not
a prerequisite to the bringing of a prosecu-
tion under section 24. (5) The minister was
entitled to issue directions under section
5(3) specifying the best practicable means
for preventing or limiting emissions. If
such directions were made they could be
relied upon by a defendant with a view to
establishing that he had a good defence
under section 24(3)(a). However, no di-
rections pertaining to the type of emis-
sions complained of in this case had been
made and the making of such directions
was not a prerequisite to the bringing of a
prosecution under section 24(2). (6) Given
section 2(1) of the Interpretation Act 1889,
the word 'person' as used in section 11
and section 12 included a corporate body.
Section 11 (2) expressly recognised that an
offence under the 1987 Act could be
committed by a body corporate. There
was nothing in section 11 or section 12 to
suggest that it was necessary to join an
officer of the company in any prosecution
or for the purposeof imposing a penalty by
way of fine under section 12. (7) If a local
authority elect to exercise their right under
section 13 to bring a summary prosecu-
tion, the accused does not have an elec-
tion to choose between summary trial and
trial on indictment before a jury. (8) Sec-
tion 24(2) created a statutory offence akin
to the common law misdemeanour of
public nuisance which carried the special
penalties provided for in section 12 and
was subject to the special defences re-
ferred to in section 24(3). Some of these
special defences could only arise in the
event of certain measures being taken
under other provisions of the 1987 Act.
The fact that some ground of defence
might not exist yet because such measures
have not been taken was not a sufficient
basis for chal lenging a prosecution brought
in the meantime under section 24(2). (9)
The absence of regulations and orders
which could be made under the 1987 Act
did not prevent the applicant from know-
ing the nature and extent of the offences it
had allegedly committed. There was no
greater element of uncertainty involved in
identifying the commission of an offence
contrary to section 24(2) than there was in
bringing and defending a charge pertain-
ing to the common law misdemeanour of
public nuisance.
Reported at [1994] 1 ILRM 151