The Gazette 1993

GAZETTE

APRIL 1993

to the bank. Dicta in

Whitworth Street Es-

tates Ltd v Miller

[1970] AC 583 approved;

(2) the terms of the debenture were such that

the bank was creating a level of control over

book debts which indicated an intention to

create a fixed charge over the book debts of

the company.

In re Keenan Bros Ltd

[1985]

IR 401 applied.

Wiley v Revenue Commissioners Supreme

Court 9 April 1992

JUDICIAL REVIEW - LEGITIMATE EXPECTATION -

EXCISE DUTY REFUND SCHEME FOR CERTAIN DRIV-

ERS OF MOTOR VEHICLES - APPLICANT NOT COM-

ING WITHIN SCHEME - APPLICANT PREVIOUSLY

RECEIVING REFUND - SUBSEQUENT REFUSAL -

WHETHER APPLICANT HAVING LEGITIMATE EXPEC-

TATION TO REFUND - Imposition of Duties (No.236)

(Excise Duties on Motor Vehicles, Televisions and

Gramophone Records) Order 1979

The applicant had certain physical disabili-

ties which prevented him from driving an

ordinary motor vehicle. He had no use in

one leg for driving purposes and his left

ankle was damaged as a result of extra stress

placed on it. In 1983 and 1985, he pur-

chased new motor vehicles for which he

obtained from his local authority certificates

of exemption from road tax under s.43(1) of

the 1968 Act, which applies only where the

driver 'is wholly, or almost wholly, without

the use of each of his legs.' Under the 1979

Order, the Revenue Commissioners oper-

ated a refund scheme on the excise payable

on motor vehicles. This scheme was based

on the same criteria as for the road tax

refund, and until 1986 the Revenue ac-

cepted a certificate of exemption from road

tax as proof of entitlment to the excise duty

refund. Thus, in 1983 and 1985, the appli-

cant obtained the excise duty refund on

presentation of the road tax exemption cer-

tificates. In 1986, the Revenue altered their

policy and required a copy of the medical

certificate on which the road tax exemption

was granted. In 1987, when the applicant

applied for a refund under the 1979 Order,

he was refused on the ground that the medi-

cal certificate did not indicate that he was

without the use of each of his legs. The

applicant sought judicial review of the re-

fusal on the ground that, as he had received

the refunds in 1983 and 1985, he had a

legitimate expectation that he would re-

ceive the refund in 1987, and that the Rev-

enue Commissioners had not been entitled

to change its pol icy without notice to him. In

the High Court, Blayney J dismissed the

claim: [1989] IR 350. On appeal HELD by

the Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) dismiss-

ing the appeal: (1) since the applicant knew

or ought to have known that his physical

condition did not entitle him to any refund

under the 1979 Order, he could argue only

that he had an expectation to a refund based

on the fact that he had been given such a

refund in the past, but this could not be

described as a legitimate expectation; (2) to

accede to the applicant's arguments would

involve the Court ordering a statutory body

to act ultra vires the powers conferred on it

by statute, and the Court would not extend

the boundaries of legitimate expectation in

this way. PerO'Flaherty J: the boundaries of

legitimate expectation in Irish case law were

similar to those established in the jurispru-

dence of other courts.

Commission v Coun-

cil

[1973] ECR 575 and

Attorney-General of

Hong KQng v Ng Yuen Shiu

[1983] 2 AC

629.

Irish Bank of Commerce v O'Hara Supreme

Court 7 April 1992

LAND LAW - CONVEYANCINC -JUDGMENT MORT-

, CAGE - APPLICATION FOR WELL-CHARGING OR-

DER - WHETHER AFFIDAVIT GROUNDING APPLI-

CATION MUST SPECIFY PARISH INWHICH PREMISES

TO BE CHARGED IS SITUATED - TRUE MEANING OF

LEGISLATION - Judgments (Ireland) Act 1850, s.6

The plaintiff bank sought a well-charging

order on property in which the defendant

had an interest. The defendant did not deny

that the sum on which the well-charging

order was sought was due and owing to the

bank. However, he argued that the judg-

ment debt was not well charged on the

ground that the affidavit grounding the ap-

plication did not comply with the require-

ments of s.6 of the 1850 Act in that it did not

specify the parish in which the property in

question was situated, such being required

for property situated in a town. The affidavit

averred that the property was situated in the

Borough of Dun Laoghaire. In the High

Court, Costello J held that, since there was

no evidence that Dun Laoghairewasa 'town'

for the purposes of the 1850 Act, the affida-

vit need not specify the parish. He also held

that, in any event, the terms of s.6 of the

1850 Act were not mandatory in nature. On

appeal by the defendant HELD by the Su-

preme Court (Finlay CJ, McCarthy and

O'Flaherty JJ) dismissing the appeal: (1) the

case law on s.6 of the 1850 Act appeared to

indicate a requirement that property situ-

ated in a town must be identified by the

parish in which it was.

Credit Finance Co

Ltd v Grace

(Supreme Court, 9 June 1972)

applied; (2) however, as there was no evi-

dence that the Borough of Dun Laoghaire

was a 'town' for the purposes of the 1850

Act, the Court should proceed on the basis

that the affidavit grounding the application

was not required to specify the parish in

which the property was situated.

Dardis &

Dunn Seeds Ltd v Hickey

(High Court, 11

July 1974) referred to; (3) the true interpre-

tation of s.6 of the 1850 Act required the

Court to have regard to the clear objects it

was intended to achieve; and since it was

intended to achieve the clear identification

of the person and property to be charged,

the mere omission of a requirement of s.6

which did not affect the question of the

identity of the property or the debtor could

not in itself invalidate the charge on the

property.

Thorp v Brown

(1867) LR 2 HL

220 and

Credit Finance Co Ltd v Grace

(Supreme Court, 9 June 1972) applied. In

Murphy and McCormack

[1930] IR 322 not

followed. Per curiam: greater care would

need to be taken to ensure no mistake

occurred concerning the correct identifica-

tion of the property involved than with the

identification of the judgment debtor.

Dublin County Council v Eighty Five Devel-

opments Ltd Supreme Court 9 April 1992

LOCAL GOVERNMENT - PLANNING - REFUSAL -

GROUNDS - WHETHER APPLICANT ENTITLED TO

COMPENSATION FOR REFUSAL - WHETHER

GROUNDS FOR REFUSAL CLEARLY WITHIN CLASS

OF EXEMPTIONS TO COMPENSATION - Local Gov-

ernment (Planning and Development) Act 1963, ss.55,

The company had applied for planning per-

mission for the erection of houses, a school

and a shopping centre. The Council had

refused permission on the ground, inter alia,

that the development would not be desir-

able having regard to traffic density and the

speed of vehicles which would be gener-

ated. On appeal, An Bord Pleanala also

refused permission on the ground, inter alia,

that the road on which it was proposed to

site the buildings were'substandard in width

and... would give rise to traffic hazard by

reason of the additional traffic turning move-

ments it would generate.' The Counci I sought

a declaration that this ground for refusal

came within the exemption to compensa-

tion contained in s.56ofthe 1963 Act. S.56

provides, inter alia, that no compensation

for refusal shall be given where the ground

for refusal was that the development would

endanger public safety by reason of a traffic

hazard. In the High Court, Gannon J HELD

the ground given in the instant case did not

come within s.56 and that compensation

was therefore payable. On appeal by the

Council HELD by the Supreme Court (Finlay

CJ, Hederman, McCarthy and O'Flaherty JJ;

Egan J dissenting) allowing the appeal: a

planning authority was not required to fol-

low the precise words of s.56 of the 1963

Act in order to bring the ground of refusal

within the section; and while great care

should be taken to indicate with clarity the

precise basis on which permission is re-

fused, the ground given would be inter-

preted in an ordinary and common sense

manner to ascertain whether it fell within

s.56 of the 1963 Act; and in the instant case

the true interpretation was that the ground

for refusal fell within s.56 and that no com-

pensation was payable under s.55 of the

Act. Dicta in In re

XJS Investments Ltd

[1986]

IR 750 applied.

Crown Chemical Co(lrl) Ltd v Cork County

Council Supreme Court 4 June 1992

MALICIOUS INJURIES-WHETHER DECREE FOR COM-

PENSATION UNDER MALICIOUS INJURIES CODE

AMOUNTING TO JUDGMENT DEBT - WHETHER

INTEREST PAYABLE ON DECREE - Debtors (Ireland)

Act 1840, s.26 - Local Government (Ireland) Act 1898

The company claimed that it was entitled to

claim interest on a decree made in its favour

under, inter alia, the 1898 Act, arising from

malicious injury to its property. The defend-

ant Council argued that interest was not

payable since the decree did not amount to

a judgment debt. On case stated HELD by

the Supreme Court (Hederman, O'Flaherty

and Egan JJ): the decree for compensation

under the malicious injuries code cast an

immediate duty on the responsible local

authority to raise, levy and pay the sum, a

duty enforceable by judicial review; but the

decree did not constitute a judgment debt

within s.26 of the 1840 Act, and therefore

interest was not payable on the decree.

R. (Bennett) v King's County County Council

[1908] 2 IR 178 applied. [Note: the decree

in the instant case arose out of events which

preceded the entry into force of the Mali-

cious Injuries Act 1981 .J