446 / 462
GAZETTE
APRIL 1993
O'Hanlon J granted the application. On ap-
peal by the plaintiff HELD by the Supreme
Court (Hederman, McCarthy and Costello JJ)
allowing the appeal: (1) in the absence of a
plea of justification, the only issue for the
court trying the action would be whether the
article referred to the plaintiffs; (2) although
the actions arose out of the same article, they
did not involve common issues of law or of ,
fact, since the question of whether the article
referred to the different plaintiffs would be a
separate issue for each person involved, and
this would be a separate issue of law for the
trial judge to determine and then to leave to
the jury to decide as a matter of fact.
Horwood
v Statesman Publishing Co Ltd
(1929) 98
LJKB 450 discussed; (2) there would be no
substantial saving involved in a consolida-
tion, and it was likely that some confusion
and injustice would arise in relation to wit-
nesses called for the different plaintiffs, and
thus the risk that all plaintiffs might stand or
fall together; (3) although the wording of
0.49, r.6 of the 1986 Rules was very wide,
the question of consolidation was a matter
for the court's discretion; but although con-
solidation was not appropriate in the instant
case, the court would order that the actions
be tried in succession and be presided over
by the same judge.
Kennedy v Galway Vocational Education
Committee Supreme Court 1 July 1992
PRACTICE AND PROCEDURE - APPEAL - SUPREME
COURT - FINDINGS OF FACT BY TRIAL JUDGE -
CONFLICT BETWEEN PLAINTIFF AND WITNESSES FOR
DEFENDANT - TRIAL JUDGE ACCEPTING PLAINTIFF'S
ACCOUNT - WHETHER SUPREME COURT MAY OVER-
TURN FINDING OF FACT
The plaintiff instituted proceedings claiming
damages in respect of injuries alleged to have
been sustained while she was a pupil in a
vocational school under the control of the
defendant VEC, at a time when she was 17
years. In evidence, the plaintiff stated that she
fell in a pool of water in a kitchen in the
school. She stated that she had been sent to
the kitchen by a teacher, that she fell in the
presence of another pupil, that she reported
the accident immediately to a cleaner and
that she attended a doctor concerning the
accident. In evidence on the VEC's behalf,
the plaintiff's teacher stated that pupils were
not sent to the kitchen in the manner alleged
by the plaintiff. The pupil stated by the plain-
tiff to have been in the kitchen denied being
there and the cleaner to whom the plaintiff
stated she reported the accident could not
recollect the event. In the High Court, Egan J
held that, although the plaintiff's evidence
had been unsatisfactory in some respects, it
could not be said that she had lied. He
concluded that, as the plaintiff's evidence
indicated that the pool of water had been in
position for some time, the defendant was in
breach of its duty of care to her and he
awarded the plaintiff 20,762. On appeal by
the defendant HELD by the Supreme Court
(Finlay CJ, Hederman and O'Flaherty JJ) al-
lowing the appeal: (1) while the Court would
not normally interfere with findings of pri-
mary fact by a trial judge there were excep-
tional cases where the evidence is so clearly
one way as to require the intervention of the
Supreme Court to say that the verdict entered
by the trial judge cannot stand; (2) the Court
would not interfere with the findings in the
instant case if the plaintiff's evidence had
been contradicted on one item, albeit the
plaintiff's account would then be rendered
unsatisfactory; however, the cumulative ef-
fect of the evidence on the defendant's behalf
(which had not been challenged as unreli-
able) was such that it was impossible to say
that the plaintiff had made out her case, and
on the contrary her case had been compre-
hensively disproved; and in the circumstances
the verdict in her favour would be set aside.
Siuicre Eireann CPT v Commissioner of Valu-
ation Supreme Court 7 April 1992
RATING - VALUATION - EXEMPTION FROM VALUA-
TION - MACHINERY - OIL TANKS - WHETHER COURT
MAY AMEND ERROR IN VALUATION LIST - Valuation
(Ireland) Act 1852, ss.12, 23 - Valuation (Ireland) Act
1860, ss.7, 11
S.7 of the 1860 Act provides that 'machinery'
in a mill or manufactory is exempt from
rating, unless the 'machinery' is used for
production of motive power. The appellant
company was the occupier of a factory
premises on which some oil tanks were situ-
ated. One of these, a diesel oil tank, was a
holding tank for diesel oil to supply mobile
equipment. The other tanks were heavy fuel
oil tanks, which contained pumping and
heating equipment. The diesel oil tank was
erroneously entered into the Buildings col-
umn of the Valuation List by the Commis-
sioner for Valuation. It was agreed that all the
tanks would be rateable if entered into the
Miscellaneous column of the List. The com-
pany argued that they were exempt from
rates on the grounds that the courts could not
alter the List on appeal from the Commis-
sioner. On case stated HELD by the Supreme
Court (Finlay CJ, Hederman and McCarthy
JJ): (1) the heavy fuel oil tanks were not
involved in the manufacturing process of the
company, and since they were essentially
holding tanks and receptacles for oil they
were thus not exempt 'machinery' within s.7
of the 1860 Act. Dicta in
Beamish & Crawford
Ltd v Commissioner of Valuation
[1980]
ILRM 149 applied. (2) it was also clear that
none of the tanks were buildings within s.12
of the 1852 Act, but they would be rateable
under the Miscellaneous Column of the An-
nual List; (3) since an appeal against valua-
tion under s.23 of the 1852 Act could involve
correction of an error by the Commissioner,
and since s.11 of the 1860 Act allowed a
Superior Court to make such order as it may
seem fit, the court was empowered not sim-
ply to correct errors by the Commissioner in
favour of the appellant but to make good any
other error in the compilation of the List; and
thus the court was empowered to alter the
annual List and to transfer a rateable
hereditament from one Column in the List to
another Column; and accordingly the tanks
would be entered in the Miscellaneous Col-
umn.
Dicta
of Costello J in
Pfizer Chemical
Corp v Commissioner of Valuation
(High
Court, 9 May 1989) (1990) 8 ILT Digest 84
approved.
Pfizer Chemical Corp v Commissioner of
Valuation Supreme Court 7 April 1992
RATING - VALUATION - EXEMPTION FROM VALUA-
TION - MACHINERY - OIL TANKS - WHETHER COURT
MAY AMEND ERROR IN VALUATION LIST - Valuation
(Ireland) Act 1860, s.11
The appellant company was the owner and
occupier of a large factory premises in which
6
they manufactured food chemicals and bulk
pharmaceuticals. The company appealed
against the Commissioner's valuation for rat-
ing purposes of certain installations on the
factory site. These included tanks for the
reception of crude beet molasses, tanks for
the reception of sulphuric acid, a number of
other tanks as well as pipelines (which were
over 40 miles long) used to transmit the
molasses and acid to the factory. In addition
to claiming that the Commissioner should
not have rated the installations, the company
argued that the Commissioner had wrongly
categorised them in the Annual Valuation
List and that the Court had no power on
appeal to amend the Annual List. Costello J
held (High Court, 9 May 1989) (1990) 8 ILT
Digest 84 that the Commissioner had erred in
holding the installations were rateable as
machinery, but concluded that, since they
were not buildings, they could be rated un-
der the Miscellaneous Column of the Annual
List; and that the court had power to amend
the Annual List, and would do so in the
instant case. On appeal by the company
HELD by the Supreme Court (Finlay CJ,
Hederman and McCarthy JJ) dismissing the
appeal: the Court had the power to amend
the Annual List under s.11 of the 1860 Act;
and the High Court had drawn the correct
conclusions from the circumstances in the
case.
Siuicre Eireann CPT v Commissioner of
Valuation
(Supreme Court, 7 April 1992)
(supra) applied.
Texaco (Irl) Ltd v Murphy (Inspector of
Taxes)(No.2) Supreme Court 15 May 1992
REVENUE - OVERPAYMENT OF TAX DETERMINED
AFTER COURT APPEAL - INTEREST ON OVERPAY-
MENT - METHOD OF CALCULATION - RATE BASED
ON THAT UNDER COURTS ACTS - Income Tax Act
1967, ss.428, 550 - Finance Act 1976, s.30 - Courts Act
1981, s.22
The appellant company had successfully
appealed, on case stated to the Supreme
Court, against an assessment to tax levied by
the respondent Inspector of Taxes: [1992]
ILRM 304; [1991 ] 2 IR 449. It was agreed that
the company's overpayment of tax was to be
repaid together with interest, but the ques-
tion arose as to the rate of interest payable.
S.428 of the 1967 Act provided that interest
shall be payable 'with such interest, if any, as
the Court may allow.' HELD by the Supreme
Court (Finlay CJ, Hederjnan and McCarthy
JJ): since s.428 of the 1967 Act left the calcu-
lation of the interest payable in the discretion
of the Court, it would not be appropriate to
refer to provisions of the tax code, such as
s.550 of the 1967 Act or s.30 of the 1976 Act,
which themselves set particular rates of inter-
est in respect of certain events occurring, not
including the instant case; nor was reference
to certain bank rates appropriate since this
would preclude investigation as to whether
the overpayment, if invested, might have
achieved a negative return; and accordingly,
the court would, in its discretion, order that
interest was payable at the rates set under
s.22 of the 1981 Act throughout the relevant
period.
McGrath vMcDermott[]
988]
ILRM
647; [1988] IR 258 applied.
Per curiam:
no
view would be expressed as to whether the
interest payable was itself liable to tax.