The Gazette 1983

GAZETTE

JULY/AUGUST

198

and operation of law. Myles Freeney v. Bray Urban District Council. The High Court, (per O'Hanlon J.) 16 July 1981 — [1982] ILRM 29. John F. Buckley PRACTICE Order 22 (Rules 4(1) and 10(1) of the Rules of the Superior Courts — Court Order required to give infant Plaintiff entitlement to money lodged In Court — payment induced by fraud — whether Courts discretion to be exer- cised in favour of defrauded payer. The Plaintiffwas 19 years of age when he sustained a serious iqjury while working in June 1977. Suing by his father and next friend he instituted proceedings in the High Court against thefirst named Defendants ("Ryans"). They had arranged Employers Liability Insurance at Lloyds who were represented by the second named Defendants in the present proceedings ("The Underwriters"). Solicitors on the instructions of the Underwriters lodged in Court with their Defence the sum of £39,053 without admission of liability. Under Order 22, R.4. of the Rules of the Superior Courts a Plaintiff may within seven days of receipt of the Notice of Payment into Court serve a prescribed Notice of Acceptance. This was not done. The Court presumed that this was because 0.22, R. 10 provides that no compromise or payment or acceptance of money paid into Colirt in the case of an infant Plaintiff can be given effect to without an Order ofthe Court. Meanwhile the Underwriters discovered that the Employers Liability Policy of insurance had been entered into by them as a result of fraudulent mis-statements made by Ryans as to the amount of wages and salaries paid or payable by them to their employees. The underwriters brought proceedings in the High Court and successfully obtained a declaration of nullity of the insurance contract. The Order which was made on 28 December 1978 was not appealed and the matter became res judicata binding on the Plaintiff and Ryans. The money paid into Court by the Underwriters was, therefore, paid by them under a mistaken assumption of liability which assumption was induced by Ryans' fraudulent mis- representations. On 2 January 1979 a Notice of Motion was issued on behalf of the Plaintiff (still an infant) seeking an Order extending the time for accepting the money lodged in Court. The Underwriters, on 11 January 1979, caused a Notice of Motion to be served seeking payment out of the money to them. These Motions were heard together on 31 January 1980. The

urgency and that there was to be an obliga- tion on Planning Authorities to communicate their decisions to applicants within a strict limit of time and that it was intended that no similar decision should reach applicants either personally or at their premises within the period prescribed by the Act as "the appropriate period". The court noted that the utilisation of any of the other methods of giving notice under the Act, other than the use of registered post, involved either personal delivery of the notice to the applicant or delivery of it at the address where he normally resides, or at an address he had given for purposes of service, or by delivering it physically at the land to which the application relates or affixing it conspicuously at or near the said land. Under these provisions time continues to run against the Planning Authority until the notice has been physically delivered to or brought to the notice of the applicant or left at some premises where it may reasonably be regarded as having come into his possession and control. The court expressed the view that if an applicant could show that the notice given by the Planning Authority served by registered post did not reach him within "the appropriate period" the Planning Authority would have to suffer the conse- quences of resorting to this method of service rather than the more conclusive method of personal service or service at the premises to which the application relates or where the applicant resides or at the address for service which he has given. The court indicated that it inclined to the view that the registered letter should be regarded as having been "posted" when it was handed into the post office, properly stamped and accepted by the person in charge of the post office even though the time was . later than the time given as the latest date for posting for that particular day. The court held however that the notice was not given for the purposes of' the Act until 25 September 1979 at the earliest, a date clearly outside the prescribed five week period. On the fourth question the court followed the decision of Barrington J. in the case of The State (Pine Valley Development Limited) v. Dublin County Council (27 May 1981 unreported). Having held that a decision by the Defendant to grant the permission was given on the last day of the appropriate period and the Defendant having subsequently made an order refusing permission there would exist two conflicting decisions of the same Planning Authority and the Plaintiff had correctly sought relief in the form of a Declaratory Order as to the legal position and it would have been inappropriate for him to seek relief by way of Mandamus against the authority to compel it to make or give a decision in favour of an applicant when it was already deemed to have donfc so by act

On the first question the Court accepted that under the provisions of Section 11 of the Interpretation Act 1937 the day upon which the Minister gave his decisions was to be included in the computation of the five week period and accordingly the last day of the period was 23 September 1979. The Defendants decision to refuse permission was not made until the following day 24 September 1979. In relation to the second question, 23 September 1979 fell on a Sunday and the Court held that express provision by statute or statutory instrument was needed if the time limited by statute for doing any ministerial or administrative act were to be extended because the last day for doing the Act happened to fall on a Sunday. There was no such express provision under the legislation before the court and accordingly the court held that as no notice had been given up to 23 September 1979 of a decision to refuse permission, a decision by the Defendant to grant the permission should be regarded as haying been given on the last day of the five week period notwithstanding that that day happened to be on a Sunday. Having regard to the court's conclusion on the second question it was not strictly necessary to consider the third question but the court expressed its view that it would not follow the decision of O'Keeffe P. in the case of The State (Murphy) v. Dublin County Council [1970] I.R. 253 having regard to the critical views which had been expressed in the cases of Thomas Bishop Limited v. Helmville Limited [ 1972] 1 All E.R. 365 and Maltglade Limited v. St. Albans Rural District Council [1972] 3 All E.R. 129 of the case of Moody v. Gold- stone R.D.C. [1966] 1 W.L.R. 1085 on which some reliance had been placed by O'Keeffe P. in The State (Murphy) v. Dublin County Council when he stated at page 258 "it seems to me that one must consider in each case what the legislature intended. In the case of the Act of 1963 the legislature obviously intended that the planning authority should arrive at a decision without undue delay and should give notice of the decision to the applicant. The planning authority was to be required to do its part within the appropriate period by dispatching notice of its decision but the time of receipt of the notice seems not to be of importance. I think that the notice was given when it was sent by registered post in the manner prescribed by the Act . . . There is no reference to 'service' of the notice in sub-section 4 of Section 26 of the Act of 1963 to bring into operation the second limb of Section 18 of the Interpretation Act 1937. For this reason I think that the prosecutor's submission is incorrect and that the cause shown should be allowed". The Court in taking a different view expressed the view that the provisions of the Act indicated an intention that Planning applications were to be dealt with as matters of some

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