The Gazette 1985

GAZETTE

JULY/AUGUST

1985

Recent Irish Cases

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

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)

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