The Gazette 1985

JULY/AUGUST 1985

GAZETTE

the Court to be repugnant to the Constitution under Article 15 is retro- spective and that it was a finding or declaration that the statute concerned from the date on which it was signed by the President was in so far as its invalidity arose from requgnancy to the Constitu- • tion null and void and of no effect. It was accordingly submitted on the claimant's behalf that it would be wholly inconsistent with the retrospective effect of the decision with regard to the invalidity of parts of the Rent Act of 1960 that any determination of the rights of any person including in particular of the claimant in this case should be approached on the basis that the provisions of that Act were ever operative. Ha v i ng c o n s i d e r ed these two conflicting submissions the Court reached the following conclusions. The majority decisions of the Supreme Court in the second issue arising in Murphy -v- The Attorney General were delivered by Henchy J., Griffin J., and Kenny J., Parke J. agreeing with the judgments of Henchy J. and Griffin J. the question which is relevant to the issues in this case of the extent and nature of the retrospective invalidity of a statute was in particular dealt with in the judgments of Henchy J., and Griffin J. Henchy J. at page 321 stated as follows:— "For example, the United States Supreme Court unencumbered as it is by any constitutional imperative such as is contained in Article 50 or Article 15, s.4, sub-s. 1 of our Constitution has varied in its rulings as to whether its condemnation of a statute as unconstitutional should be given effect to prospectively only or with s ome degree of r e t r o a c t i v i t y. However, even in cases where the statute has been declared to have been invalid ab initio (as is the position in the present case), it has come to recognise that legal transactions that took place under the void statute did not necessarily suffer retrospective invalidity with the fall of the statute. The difficulty if not impossibility of laying down a general rule on the matter was dealt with by Hughes C.J. in delivering the opinion of the Court in Chicot County Draining District -v- Baxter State Bank (no citation given) at page 374 of the report." Dealing with the same topic at page 331 of the report Griffin J. stated as follows:— "When a statute has been declared to be void ab initio it does not necessarily follow that what was done under and in pursuance of the condemned law will give to a person who has in consequence suffered loss, a good cause of action in respect thereof. Notwithstanding the invalidity of the

statute under which such act was done, the Courts recognise the reality of the situation which arises in such cases, and that it may not be possible to undo what was done under the invalid statute as it was put so distinctly during the argument, "the egg cannot be unscrambled". In regard to this aspect of the case and the Plaintiffs right to recover the sums collected from them in excess of those which should properly have been collected from them if their incomes had not been aggregated, I have had the advantage of reading in advance the Judgment of Mr. Justice Henchy and I agree with his conclusions and the reasons which he has stated therefor." In this case if the Court was to hold that the Arbitrator was obliged to value the claimant's properties as of 11 march, 1977 on the basis that parts II and IV of the Rent Act of 1960 did not apply to them, it would be determing as a matter of law that he should find as a fact something which was palpably untrue. The Court had to assume that the purpose of the provisions of section 84 of the Housing Act 1966 which provide for the valuation date as being the date of the Notice to Treat is on the one hand to ensure that an acquiring Authority could at the time it sought confirmation of a Compulsory Purchase Order make a reasonable estimate of the probable cost of acquiring the entire of the lands concerned and secondly, for the purpose of ensuring that a person from whom the lands had been acquired and who might have to await for some significant period the actual determination and payment of compensation would not suffer the risk that outside adventitious market conditions would reduce the value of what was being taken from them. It would appear, therefore, that the justice and equity of the case would not be served by providing for an artificial assessment of the value of the lands which was a price which the claimant could not on the facts as found here have expected to obtain had she offered them for sale on the open market on the date of the Notice to Treat. Having considered the additional submission made on the claimant's behalf that the obligation of a Court was to protect the citizen against any invasion of his constitutional rights and in the case of such invasion to make good the loss or damage caused the Court was entitled to answer the question raised in the case stated in the affirmative. Here the claimant was not coming to the Court seeking from any party who has operated or availed of the provisions of the impugned legislation relief by way of repayment or otherwise for sums wrongfully withheld, but was seeking to operate a statutory machinery for the assessment of the value of her lands at a

particular time and in a particular manner. It was not open to the Arbitrator to award her any form of damages or compensation for the consequence of the enactment of the Rent Restrictions Act of 1960. For these reasons the question raised in the case stated should in the sense in which it was raised be answered in the affirmative. For reasons of precision, however, and having regard to the principles which led to that conclusion the Court preferred the question to be answered in the following form:— "The Arbitrator ought to value the claimant's interest in the relevant premises on the valuation date on the assumption that the willing seller, prospective purchasers, and the persons advising them would have assumed that part II and part IV of the Rent Restrictions Act, 1960 was a valid statutory provision affecting the premises." Ellen Read -v- Limerick Corporation - High Court (per Finlay J.) - unreported- 5 March 1984. Daniel Brilley

Copies of judgments in the above cases are available on request from the Society's Library. The photo- copying rate is lOp per page.

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