The Gazette 1984

GAZ E T TE

OCTOBER 1984

It was clear therefore that Section 11 of

the Statute of Limitations required an

application for compensation for

criminal injury within six years unless

that time could be extended by the Circuit

Court.

The Applicants relied upon Section 21

of the Damage to Property (Compensa-

tion) Act, 1923 in support of their

argument for an extension of time. That

section repealed Section 137 of The

Grand Jury (Ireland) Act, 1836 as and

from 23 December, 1920.

Sub section 2 of section 21 provided

"The powers of the Court or Judge

under any rules of Court made

whether before or after the passing

of the Act in pursuance of Sub

section (7) of the Section 5 of the

Local Government (Ireland) Act,

1898 shall include and be deemed to

have included as and from the 23rd

December, 1920 power to extend or

vary the time prescribed by any

Statute or Statutory Rules for

ma k i ng an a p p l i c a t i on f or

compensation for criminal injuries

or for serving any Notice or for

doing any other act or taking any

proceedings in relation to the appli-

cation in any cse where it appears to

the Court or Judge that such

extension or variation is just and

reasonable for any cause what-

soever."

The power conferred by that Sub

section is imported into the Circuit Court

Rules by Order 52 Rule 10.

The Applicants in their arguments

contended that under Section 21(2) of the

Act of 1923 and Order 52 Rule 10 of the

Rules of the Circuit Court the time limit

of six years under Section 11 of Statute of

Limitaitons 1957 could be extended by

the Circuit Court Judge if he considered it

just and reasonable for any cause what-

soever to do so.

In arriving at its decision the Court

HELD:

A. The Applicants' contentions could

only succeed if Section 21(2) of the

Act of 1923 and Order 52 Rule 10 of

the Circuit Court Rules were

construed as giving power to extend

the time prescribed by Statute

subsequent in date to that Act or

those Rules.

The Act of 1923 cannot be read as

extending to Statutes which might be

enacted in the future. The Court is

satisfied that there was no reason

why the legislature in 1923 would

have concerned itself with powers to

extend time limits which might be

contained in future Statutes.

The Court therefore is satisfied that the

power in the Act of 1923 applied only to

extend the time prescribed in Statutes

existing at the date of that Act. Similarly

the power in Order 52 Rule 10 to extend

the time limited by Statute is confined to

Statutes pre-dating the Act of 1923 since

that is the only Act enabling the Rule

making Committee to make a rule under

which the time fixed by Statute could be

extended by the Court.

In view of the foregoing the Appli-

cants' right to the claim for compensation

for criminal injury became statute barred

by theStatuteof Limitationsof 1957after

the expiration of six years from the date

of the criminal injury and the application

to the Circuit Court to extend the time

was made outside that time limit and it

was not within the powers of Court to

extend the time for bringing an applica-

tion for compensation so as to defeat the

bar under the Statute of Limitations Act,

1957.

In The Matter of The Local Government

(Ireland) Act, 1898 and In The Matter of

the Damage to Property (Compensation)

Act. 1923.

Woodrow Packaging Limited -v- Dublin

Corporation - High Court (per McMahon

J.). 26 July. 1983 - unreported.

Peter M. Lennon

LANDLORD AND TENANT

Section

Arbitration Act, 1954 —

Special Case — 15 year rent reviews —

"Loading" determined.

In 1967, the Claimants leased the office

block 72-76 St. Stephen's Green, Dublin,

to the Respondents for a term of 75 years

with an annual rent of £70,000.00 for the

first 15 years. The Rent Review Clause in

the Lease commenced:—

". . . And it is hereby agreed and

declared that on each fifteenth

anniversary at the commencement

of the term hereby granted the yearly

rent hereby reserved shall be

reviewed and that as and from the

expiration of each such fifteen years

the said yearly rent shall be the

greater of the following, i.e. (1) the

said sum of seventy thousand

pounds or (II) the market rent

having regard to the rental values

then current for similar property let

with vacant possession without a

premium by a willing lessor to a

willing lessee and subject to the

provisions of this Lease".

The Clause continued with the usual

provision for the * appointment of an

Arbitrator if agreement could not be

reached between the parties.

An Arbitrator was appointed when the

first Rent Review fell to be made in

January 1982. At the request of the parties

the Arbitrator stated a Special Case for

the determination of the High Court

pursuant to Section 35 of the 1954

Arbitration Act. Prior to the Arbitration

the Valuers on each side had agreed that

the sum of £570,187.00 represented the

market rent which would be fixed for a

letting of this office block as ol January

1982.

However, the Claimants contended:

(a) That the Rent Review Clause

required that the rent to be fixed as

of January 1982 be fixed by

reference to the market rent which

would be payable as between a

willing Lessor and a willing Lessee of

similar properties let with vacant

possession without a premium

subject to the provisions of the said

Lease and that, for a period in excess

of five years between Rent Review

Dates a willing Landlord would

demand and a willing Lessee would

be willing to pay a rent greater than

that which would be fixed for a five

year period.

(b) That the Clause both required and

permitted the fixing of a rent in

excess of this sum so as to reflect the

willingness of a Lessor and Lessee to

postpone a Rent Review from 5 to 15

years.

The Respondents contended that:

(a) Upon a correct interpretation of the

Clause the only rent which could be

fixed was such sum as represented

the market rent for the said office

block in January 1982, namely,

£570,187.00, and

(b) That the Clause did not permit the

incorporation of any device or

mechanism which would bring

about indirectly a review of the rent

more frequently than 15 years or

otherwise increase the sum to be fixed

for the yearly rent beyond that which

would otherwise be the market rent

for the property.

The Arbitrator's question of law for

the opinion of the Court was worded:

". . . am I legally entitled upon a

correct construction of the Rent

Review Clause contained in the said

Lease, to increase the said sum of

£570,187.00 so as to endeavour

insofar as may be possible upon any

evidence which may be adduced to

me, to take into account and reflect

the fact that the Lease provides for

^ Rent Reviews every 15 years as

opposed to every 5 years?"

The Court answered as follows:—

"Yes, but on the assumption that the

said sum would be increased by the

presence of a Clause providing for

Rent Reviews every 15 years as

opposed to a Clause providing for

such Reviews at some lesser interval

than 15 years".

Colmstock Properties Limited -v- The

Commissioners of Public Works in Ireland

- High Court (per Keane J.). 18 November.

1983 - unreported.

Leo McCarthy

Copies of judgments in the above

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