440 / 462
GAZETTE
JANUARY/FEBRUARY 1993
pany's creditors and of the company's
shareholders. The President of the High
Court indicated that, although he would
not make an order indemnifying these
parties in relation to their legal costs, he
would be prepared to make an order
discharging their costs after the applica-
tion was heard. In the application, Carroll
J held that interest was payable on certain
sums owing to the creditors: 11990] ILRM
42. The representatives of the company's
shareholders appealed this decision to
the Supreme Court. On an application for
an order indemnifying them in respect of
the legal costs of the appeal HELD by the
Supreme Court (FinlayCJ, Hedermanand
McCarthy JJ) granting a declaration but
not an order: (1) there was a general
presumption against the making of orders
for costs in advance of a hearing, whether
by a court of first instance or a court of
appeal, sinceanorder for costs was largely
a matter of discretion after the determina-
tion of the issue arising in the case; (2)
however, in the exceptional circum-
stances which arose in the instant case,
where a difficult question of law arose
which had not been addressed by Irish
courts prior to the instant case, it was
appropriate that the court indicate its
intention to order the liquidator to dis-
charge the parties' legal costs irrespec-
tive of the outcome of the appeal; (3) no
order would be made in relation to the
priority of payment of costs because,
having regard to the large surplus stand-
ing to the company, it was unlikely that
any difficulty would arise as to payment
of such costs.
Texaco (Irl) Ltd v Murphy (Inspector of
Tax»s) (No.2) Supreme Court 1 April
1992
REVENUE - CORPORATION TAX - CAPITAL EXPENDI-
TURE - RELIEF - SCIENTIFIC RESEARCH PETROLEUM
EX PI ORATION - Income Tax Act 1967, s.244 - Corpo-
ration Tax Act 1976, s.21
In
Texaco (Irl) Ltd v Murphy
(Inspector of
Taxes) [19911 2 IR 449, the Supreme
Court held, reversing the High Court
(|1989| IR 496), that the company's oil
exploration activity came within the capi-
tal relief provisions of s.244 of the 1967
Act, as applied to corporation tax bys.21
of the 1976 Act. The Inspector of Taxes
sought a direction from the Court as to
whether all drilling activities carried out
by the company came within the deci-
sion made by the Court. HELD by the
SupremeCourt (FinlayCJ, Hedermanand
McCarthy JJ): although the High Court
judge had drawn a distinction in her
judgment between two types of explora-
tion activities in which the company was
engaged, that decision had been reversed
by the Supreme Court; and in the absence
of any ground for excluding the expendi-
ture in question from claiming the benefit
of s.244 of the 1967 Act, the company
was entitled to claim all capital expendi-
ture for the purposes of s.244.
McHugh v A.B.(Deciding Officer) and
Ors Supreme Court 11 March 1992
SOCIAL WELFARE - OVERLAPPING BENEFITS - DIS-
ALLOWANCE OF BENEFIT OR ALLOWANCE WHERE
CLAIMANT OTHERWISE ENTITLED TO TWO BEN-
EFITS - WHETHER REGULATIONS MAY PROVIDE
FOR DISALLOWANCE OF BENEFIT - WHETHER PAR-
TICULAR DISALLOWANCE ULTRA VIRES FOR UN-
REASONABLENESS - Social Welfare (Consolidation)
Act 1981, ss. 18, 130 - Social Welfare (Overlapping
Benefits) Regulations 1974, Article 4 - Social Welfare
(Overlapping Benefits) (Amendment) Regulations 1987,
Article 5
The applicant gave birth in December
1987 and she applied for and received an
unmarried mother's allowance for her
child. In September 1988, she ceased
working and she obtained unemploy-
ment benefit but, under the 1974 Regula-
tions, as amended, the benefit was paid at
half-rate only as she was already receiv-
ing the unmarried mother's allowance.
The applicant suffered from epilepsy and
from September 1989 she suffered an
increase in attacks to such an extent that
she was advised not to go out. She then
ceased signing on for unemployment
benefit as she was unavailable for work.
She applied for disability benefit, for
which she had sufficient social insurance
contributions, but was refused under Ar-
ticle 4 of the 1974 Regulations, as
amended by Article 5 of the 1987 Regu-
lations, which provided that a recipient
of an unmarried mother's allowance was
disentitled to any disability benefit. Aris-
ing from changes to the 1974 Regulations
which came into effect in April 1990, the
applicant became entitled to the disabil-
ity benefit and the unmarried mother's
allowance. She applied, however, for
judicial review on the ground that the
1987 Regulations had been
ultra vires
the
1981 Act and that she had been entitled
to both benefits prior to the changes
effected in 1990. In the High Court, Lavan
J granted the relief sought. On appeal by
the respondents HELD by the Supreme
Court (Finlay CJ, Hederman, McCarthy
and O'Flaherty JJ; Egan J dissenting) dis-
missing the appeal on different grounds
to those used in the High Court: (1) the
Minister was empowered, under s.130 of
the 1981 Act, to disallow in whole or in
part the payment of any social welfare
allowance or benefit to any person who
would otherwise be entitled to claim two
or more benefits or allowances; and s.18
of the 1981 Act had provided that entitle-
ment to the disability benefit was subject
to the provisions of the Act itself, which
must be taken to include s.130. Dicta in
Harvey v Minister
for Social
Welfare
[1990] ILRM 185; [19901 2 IR 232
doubted; (2) however, the prohibition in
the 1987 Regulations on payment of a
disability benefit to a person already in
receipt of unmarried mother's allowance
was
ultra vires
the 1981 Act for unrea-
sonableness, since it lacked any logical
basis bearing in mind that the same Regu-
lations provided for the payment of un-
employment benefit - albeit at half rate -
to a person (such as the applicant had
been between September 1988 and Sep-
tember 1989) who was in receipt of an
unmarried mother's allowance.
Cassidy
v Minister for Industry and
Commerce
[1978] IR 297 applied.
In re Bonis Glynn (M.), deed. Supreme
Court 1 April 1992
SUCCESSION - EXECUTOR - NAMED EXECUTOR
HAVING BEEN CONVICTED OF MURDER OF TESTA-
TOR'S SISTER - OTHER PERSONS APPLYING TO BE
GRANTED LETTERS OF ADMINISTRATION -
WHETHER CHIEF STATE SOLICITOR SHOULD BE
GRANTED ADMINISTRATION - Succession Act 1965,
s.27
The deceased's will provided that a named
person be executor of his estate. The
named person had been convicted of
murdering the testator's sister, and the
result of her death was that the convicted
person might be entitled to a residual
legacy from the testator's estate. Another
relative of the deceased applied to be
appointed administrator of the estate
under s.27 of the 1965 Act, and this
application was supported by a creditor
of the estate who had renounced his right
to a grant of administration, and another
pecuniary legatee had not opposed the
application. The issue was whether the
Court should appoint the Chief State So-
licitor as administrator in exceptional
circumstances within the meaning of s.27
of the 1965 Act. The High Court ap-
pointed the Chief State Solicitor. On ap-
peal HELD by the Supreme Court (Finlay
CJ, McCarthy and Egan JJ) allowing the
appeal: while no one could doubt the
impropriety of the convicted person be-
ing appointed as administrator of the
estate, the Court should allow the appli-
cant to be appointed under s.27 of the
1965 Act, which should be given a liberal
construction; and in the circumstances a
grant of administration in the ordinary
form should be granted to the applicant
rather than the Chief State Solicitor. In re
Estate of Crippen
[19111 P108 discussed.
2