388 / 406
GAZETTE
JULY/AUGUST
1985
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
VALUATION
Valuation Appeal — Extension of Time
Limits — Failure to comply with
prescribed procedures.
The Westmeath Co-Operative Agricul-
tural & Dairy Society lodged an appeal
against a revised valuation of its property
on 29 July, 1981. On the same date a
recognisance was entered into before a
Commissioner for Oaths but this
recognisance was not forwarded to the
County Registrar until 9 October 1981.
This procedure failed to comply with the
provisions of the Valuation (Ireland) Act
of 1852 in two respects:—
1. it was not entered into before
District Justice or Peace Commis-
sioner and
2. it was not forwarded to the Office of
the County Registrar within three
days after it had been entered into.
On 16 February 1982, the Circuit
Court Judge made an order extending the
time for lodging the recognisance. It
appeared that the fact that the recog-
nisance might not have been entered into
before a proper officer was not
recognised at the date on which the
affidavit supporting the application was
made and it was not clear if this point had
been made at the Circuit Court hearing.
The operative part of the order read:—
"and it appearing to the Court that the
recognisance lodged by the appellants
is not in accordance with Section 22 of
the above Act it is ordered that the
time for lodging the required recogni-
sance be and the same is hereby
extended for 21 days from this date."
The Commissioner of Valuation
sought an order of certiorari from the
High Court to quash the order of the
Circuit Court judge on the grounds that
the recognisance was not entered into
before a required officer and that even if it
was it was not lodged in time and that
there was no jurisdiction in the Court to
extend the time either for entering into
the recognisance or lodging it.
Section 22 of the Valuation (Ireland)
Act provides that a person may give
notice of appeal and "shall within 5 days
of giving notice of appeal enter into a
recognisance in the sum of £5 before a
Justice of the Peace" conditioned as
therein provided. The Section then
proceeds as follows:—
"And within 3 days after such a
recognisance shall have been entered
into, the Magistrate before whom such
recognisance shall have been entered,
or clerk of the petty sessions shall send
the same by post, or shall forward
same to the office of the Clerk of the
Peace for the respective County or
place . . ."
The effect of Section 6 of the Adaption
of Enactments Act 1922, Section 2 of the
District Justices (Temporary Provisions)
Act 1923 and Section 78 of the Courts of
Justice Act 1924 is to provide that every
power and duty imposed on a Justice of
the Peace may be exercised or performed
by a District Justice. Section 88 of the
Courts of Justice Act 1924 provides that a
Peace Commissioner shall have all the
powers and authorities formerly vested in
a Justice of the Peace in respect of taking
recognisances. By Section 48 of the
Courts Officers Act 1926 the duties of the
Clerks of Petty Sessions were vested in the
District Court Clerks for the relevant
districts. By Section 38 of the same Act
the powers and duties of the Clerk of the
Peace were conferred upon and are
exercised by the County Registrar.
The respondents submitted, firstly,
that Section 50 of the Civil Bill Courts
Procedure Amendment (Ireland) Act, of
1864 enabled the Circuit Court to give
liberty to an appellant to enter into a new
and sufficient recognisance and to extend
the time for so doing, secondly, that Rule
2 of the Order 46 of the Circuit Court
Rules providing that a recognisance shall
be executed in the presence of the Judge
or a County Registrar or a Commissioner
for Oaths such an adaptation or modifi-
cation of Section 22 of the 1852 Act as to
be authorised by the provisions of Section
66 of the Courts of Justice Act 1924 and,
thirday, that in so far as Section 22 of the
1852 Act imposed a financial condition
prior to the institution of an appeal, it
offended against the provisions of the
Constitution as hindering the right of
access to the Courts.
The Court dealt with the last
submission first and noted that a
recognisance is a form of bond and does
not require the payment of any money
other than whatever fee may be payable
for entering into it and also that it had not
been suggested that the payment of Court
fees on the institution of proceedings or
the liability to a possible award of costs at
the conclusion were such a hindrance to
access to the Courts as to offend against
any provision of the Constitution. The
Court stated that even if such a proposi-
tion were put forward and accepted it
would not invalidate the requirement of a
recognisance and held that the require-
ment of a recognisance did not
contravene any of the provisions of the
Constitution.
On the first submission the Court held
that Section 50 did not apply because it
only applied to recognisances entered
into within the time required by law
before any District Justice or Peace
Commissioner.
Dealing with the second submission
the Court having reviewed the cases of the
State (O'Flaherty)
-v-
V. O Floinn
[1954]
IR 295 and
Thompson
-v-
Carry
[1970] IR
61 held that Rule 2 of Order 46 of the
Circuit Court Rules only applied to
recognisances required by the Circuit
Court for which no statutory provision
had been made. The Court, having
considered the cases of
Cox Dugdale &
McGovern
-v-
Commissioner of Valuation
(1970) 104 ILTR 41 and
the Attorney
General
-v-
Shivnan
[1970] IR 66 and
Ganley & Ors.
-v-
The Minister for Agri-
eullture
[1970] IR 191 HELD that the Co-
Operative Society was bound by the time
limit of 3 days for forwarding the recog-
nisance to the County Registrar and that
the Court had no power to extend this
time.
The State (Commissioner of Valuation) -v-
Judge O'Malley - High Court (per
McWilliam J.). 27 January 1984 -
unreported.
John F. Buckley
LANDLORD & TENANT
Lease — service charge — Tenant
Company liable to pay on foot of the Lease
for Service Charge in relation to service it
did not use.
Application brought by Plaintiff as
Lessor for judgment against the
Defendant Lessee for,
inter alia,
the
balance of service charges in respect of
the occupation by the Defendant of
ground floor premises held by it under a
standard commercial lease reserving a
rack rent and a service charge for various
services provided by the Lessor.
The Defendant Company only
objected to judgment for such amount as
related to the replacement of two lifts on
the following grounds:
(1) the Defendant's portion of the
building was on the ground floor
only, in an area which was a
considerable distance from the lifts
and to get to the lifts from the
Defendant's portion of the building
it was necessary for a person to leave
the building and re-enter it
elsewhere.
(2) the Defendant's portion of the
building was on the Ground Floor
and therefore neither its staff nor
customers had the need to use the
lifts, nor had they, in that the lifts
were solely installed for the use of
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