The Gazette 1995

GAZETTE

JANl'ARY/EEBRUARY 1995

Trustees of Kinsale Yacht Club v.

Commissioner of Valuation: Supreme

Court (Finlay CJ, O'Flaherty and

Blavney JJ) 10 February 1994

Valuation - Marina attached to piles driven

into the sea bed - Marina capable of being

detached from piles and moved to another

location - Finding that marina constituted

a fixed mooring - Property falling within

one of the categories of fixed

property

deemed to be rateable hereditaments - An-

other category containing exemption in re-

spect of constructions affixed to land used

for sporting purposes - Valuation (Ireland)

Act 1852 - Valuation Act 1986, s. 2 -

Valuation Act 1988, s. 5

Facts S. 2 of the Valuation Act 1986

provides that for the purposes of the

Valuation (Ireland) Act 1852, property

falling within any of the categories of

fixed property specified in the schedule

to the 1852 Act, as inserted by the 1986

Act, shall be deemed to be rateable here-

ditaments in addition to those specified

in s. 12 of the 1852 Act. Reference no. 2

of the schedule refers to 'all lands devel-

oped for any purpose other than agri-

culture, horticulture, forestry or sport,

irrespective of whether or not such land

is surfaced and including any construc-

tions affixed thereto which pertain to

the development' and reference no. 4

refers to 'all fixed moorings, piers and

docks.' The trustees of Kinsale Yacht

Club were the owners of a marina

which comprised a floating wooden

platform attached to piles which were

partially driven into the sea-bed. The

platform could be detached from the

piles and moved to another location. In

a judgment delivered on 12 October

1992 ([1993] ILRM 393) Barr J held that

the marina was a fixed mooring. The

words 'all lands' in reference no. 2 in-

cluded land comprising the sea-bed

and so the marina was a development

of land for sport. Accordingly, by virtue

of reference no. 2, the marina could not

be regarded as a rateable hereditament.

Finally, Barr J concluded that the matter

should be sent back to the Commis-

sioner of Valuation so that it could be

valued. The Commissioner of Valu-

ation appealed.

Held by the Supreme Court (Finlay CJ;

O'Flaherty and Blayney JJ concurring)

in allowing the appeal: (1) While the

1986 Act was not a taxing or penal stat-

ute, by deeming the categories of fixed

properties referred to in the schedule to

be rateable hereditaments in addition to

those mentioned in s. 12 of the 1852 Act,

s. 2 constituted a platform or necessary

statutory precondition intended to lead

to the fresh imposition of liability and

thus had to be given a strict interpreta-

tion.

Inspector of Taxes v. Kiernan

[1981]

IR118 applied. (2) S. 2 provided without

any ambiguity that property falling

within any of the categories of fixed

property specified in the schedule was

deemed to be a rateable hereditament.

If a particular property fell within one

of these categories of fixed property no

further enquiry had to be made as to

whether it fell into any of the other cate-

gories. (3) The decision of the High

Court that the marina was a fixed moor-

ing was a determination of a mixed

question of fact and law which had not

been challenged on appeal. In the light

of this finding it was inevitable that the

marina fell within one of the categories

of fixed property listed in the schedule.

(4) It was.not illogical or capricious that

the 1986 Act should make all forms of

fixed mooring rateable hereditaments

by virtue of reference no. 4 while pre-

venting certain constructions affixed to

land developed for the purpose of sport

from being rateable hereditaments by

virtue of reference no. 2.

Per curiam:

inconsistency existed as between the

wording of reference no. 1 and refer-

ence no. 2 insofar as it was unclear

whether something which would be

deemed to be a rateable hereditament

under reference no. 1 would still be rate-

able even though it appeared to be ca-

pable of being exempted under refer-

ence no. 2, but this inconsistency did not

arise in the instant case.

Reported at (1994] 1 ILRM 457

Peter Pringle v. Ireland and the

Attorney General: High Court

(Murphy J) 19 November 1993

Practice

- Res judicata -

Issue estoppel -

Challenge in civil proceedings to conviction

by Special Criminal Court affirmed by

Court of Criminal Appeal - Final nature of

determination by Court of Criminal Appeal

of any appeal or other matter - Whether

circumstances in which a court of first in-

stance could be asked to review or set aside

the decision of a court whose judgment is

expressed to befinal - Courts of justice Act

1924, s. 29 - Constitution, Article 34.4.6°

Facts S. 29 of the Courts of Justice Act

1924 provides that the determination by

the Court of Criminal Appeal of any

appeal or other matter which it has

power to determine shall be final. On 27

November 1990 the plaintiff was con-

victed by the Special Criminal Court of

robbery and the murder of a garda act-

ing in the course of his duty. He was

sentenced to 15 years' imprisonment for

the robbery and to death in respect of

the murder. In May 1981 the plaintiff's

application for leave to appeal was re-

fused by the Court of Criminal Appeal.

On 27 May 1981 the President of Ire-

land, acting on the advice of the govern-

ment, commuted the death penalty to

40 years' penal servitude. By a letter

dated 18 June 1981 the secretary to the

Minister for Justice informed the Gov-

ernor of Portlaoise Prison that the gov-

ernment's decision to advise the Presi-

dent to commute the death penalty had

been made on the understanding that

the full 40 years would be served with-

out remission. In 1992 the plaintiff com-

menced civil proceedings in which he

claimed that his prosecution, trial, con-

viction and sentence were conducted,

carried out and imposed in a manner

repugnant to the Constitution and in

violation of his rights. The defendants

claimed that the matters raised by the

plaintiff in his statement of claim had

already been adjudicated upon by the

Special Criminal Court and the Court of

Criminal Appeal and were thus

res ju-

dicata,

that the matters now raised by

the plaintiff could have been raised by

him at his trial and so he was estopped

from raising them now, that the plain-

tiff's proceedings were an abuse of the

process of the court and that he did not

have the necessary

locus standi

to chal-

lenge the various statutes which he

sought to impugn.

Held by Murphy J in ordering that the

proceedings should be stayed until the

statement of claim was amended: (1) A

conviction secured in a criminal court

of competent jurisdiction cannot be set

aside or reviewed in civil proceedings,

least of all in civil proceedings con-

ducted in a court of subordinate juris-

diction. (2) The word 'final', whether

used in Article 34.4.6° of the Constitu-

tion (in conjunction with the word 'con-

clusive') in relation to the Supreme

Court or in the Courts of Justice Act

1924 in relation to the Court of Criminal

Appeal, puts the decision of the court to

which the word relates beyond review

by any other judicial body. (3) Whilst it

might be appropriate to consider fresh

evidence where a litigant was seeking a

civil remedy in civil proceedings, this

was not the case where the purpose of

the civil proceedings was to reverse the

judgments of the criminal courts. In any

event, even if the plaintiff was permit-

ted to proceed here it would transpire

that the case which he sought to make

was based partly on legal arguments

which were always available to the

plaintiff and his legal advisers and

partly upon an analysis of facts and

documents which were available to the

plaintiff and his legal advisers at the

time of the criminal proceedings.

Kelly

v. Ireland

[1986] ILRM 318 distin-

guished. (4) There was a distinction be-

tween the decisions of the courts and

the implementation, variation and com-