The Gazette 1993

GAZETTE

JANUARY/FEBRUARY 1993

employment benefit - albeit at half rate - to a person (such as the applicant had been between September 1988 and Sep- tember 1989) who was in receipt of an unmarried mother's allowance. Cassidy v Minister for Industry and Commerce [1978] IR 297 applied. In re Bonis Glynn (M.), deed. Supreme Court 1 April 1992 SUCCESSION - EXECUTOR - NAMED EXECUTOR HAVING BEEN CONVICTED OF MURDER OF TESTA- TOR'S SISTER - OTHER PERSONS APPLYING TO BE GRANTED LETTERS OF ADMINISTRATION - WHETHER CHIEF STATE SOLICITOR SHOULD BE GRANTED ADMINISTRATION - Succession Act 1965, s.27 The deceased's will provided that a named person be executor of his estate. The named person had been convicted of murdering the testator's sister, and the result of her death was that the convicted person might be entitled to a residual legacy from the testator's estate. Another relative of the deceased applied to be appointed administrator of the estate under s.27 of the 1965 Act, and this application was supported by a creditor of the estate who had renounced his right to a grant of administration, and another pecuniary legatee had not opposed the application. The issue was whether the Court should appoint the Chief State So- licitor as administrator in exceptional circumstances within the meaning of s.27 of the 1965 Act. The High Court ap- pointed the Chief State Solicitor. On ap- peal HELD by the Supreme Court (Finlay CJ, McCarthy and Egan JJ) allowing the appeal: while no one could doubt the impropriety of the convicted person be- ing appointed as administrator of the estate, the Court should allow the appli- cant to be appointed under s.27 of the 1965 Act, which should be given a liberal construction; and in the circumstances a grant of administration in the ordinary form should be granted to the applicant rather than the Chief State Solicitor. In re Estate of Crippen [19111 P108 discussed.

McHugh v A.B.(Deciding Officer) and Ors Supreme Court 11 March 1992 SOCIAL WELFARE - OVERLAPPING BENEFITS - DIS- ALLOWANCE OF BENEFIT OR ALLOWANCE WHERE CLAIMANT OTHERWISE ENTITLED TO TWO BEN- EFITS - WHETHER REGULATIONS MAY PROVIDE FOR DISALLOWANCE OF BENEFIT - WHETHER PAR- TICULAR DISALLOWANCE ULTRA VIRES FOR UN- REASONABLENESS - Social Welfare (Consolidation) Act 1981, ss. 18, 130 - Social Welfare (Overlapping Benefits) Regulations 1974, Article 4 - Social Welfare (Overlapping Benefits) (Amendment) Regulations 1987, Article 5 The applicant gave birth in December 1987 and she applied for and received an unmarried mother's allowance for her child. In September 1988, she ceased working and she obtained unemploy- ment benefit but, under the 1974 Regula- tions, as amended, the benefit was paid at half-rate only as she was already receiv- ing the unmarried mother's allowance. The applicant suffered from epilepsy and from September 1989 she suffered an increase in attacks to such an extent that she was advised not to go out. She then ceased signing on for unemployment benefit as she was unavailable for work. She applied for disability benefit, for which she had sufficient social insurance contributions, but was refused under Ar- ticle 4 of the 1974 Regulations, as amended by Article 5 of the 1987 Regu- lations, which provided that a recipient of an unmarried mother's allowance was disentitled to any disability benefit. Aris- ing from changes to the 1974 Regulations which came into effect in April 1990, the applicant became entitled to the disabil- ity benefit and the unmarried mother's allowance. She applied, however, for judicial review on the ground that the 1987 Regulations had been ultra vires the 1981 Act and that she had been entitled to both benefits prior to the changes effected in 1990. In the High Court, Lavan J granted the relief sought. On appeal by the respondents HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy and O'Flaherty JJ; Egan J dissenting) dis- missing the appeal on different grounds to those used in the High Court: (1) the Minister was empowered, under s.130 of the 1981 Act, to disallow in whole or in part the payment of any social welfare allowance or benefit to any person who would otherwise be entitled to claim two or more benefits or allowances; and s.18 of the 1981 Act had provided that entitle- ment to the disability benefit was subject to the provisions of the Act itself, which must be taken to include s.130. Dicta in Harvey v Minister for Social Welfare [1990] ILRM 185; [19901 2 IR 232 doubted; (2) however, the prohibition in the 1987 Regulations on payment of a disability benefit to a person already in receipt of unmarried mother's allowance was ultra vires the 1981 Act for unrea- sonableness, since it lacked any logical basis bearing in mind that the same Regu- lations provided for the payment of un-

pany's creditors and of the company's shareholders. The President of the High Court indicated that, although he would not make an order indemnifying these parties in relation to their legal costs, he would be prepared to make an order discharging their costs after the applica- tion was heard. In the application, Carroll J held that interest was payable on certain sums owing to the creditors: 11990] ILRM 42. The representatives of the company's shareholders appealed this decision to the Supreme Court. On an application for an order indemnifying them in respect of the legal costs of the appeal HELD by the Supreme Court (FinlayCJ, Hedermanand McCarthy JJ) granting a declaration but not an order: (1) there was a general presumption against the making of orders for costs in advance of a hearing, whether by a court of first instance or a court of appeal, sinceanorder for costs was largely a matter of discretion after the determina- tion of the issue arising in the case; (2) however, in the exceptional circum- stances which arose in the instant case, where a difficult question of law arose which had not been addressed by Irish courts prior to the instant case, it was appropriate that the court indicate its intention to order the liquidator to dis- charge the parties' legal costs irrespec- tive of the outcome of the appeal; (3) no order would be made in relation to the priority of payment of costs because, having regard to the large surplus stand- ing to the company, it was unlikely that any difficulty would arise as to payment of such costs. Texaco (Irl) Ltd v Murphy (Inspector of Tax»s) (No.2) Supreme Court 1 April 1992 REVENUE - CORPORATION TAX - CAPITAL EXPENDI- TURE - RELIEF - SCIENTIFIC RESEARCH PETROLEUM EX PI ORATION - Income Tax Act 1967, s.244 - Corpo- ration Tax Act 1976, s.21 In Texaco (Irl) Ltd v Murphy (Inspector of Taxes) [19911 2 IR 449, the Supreme Court held, reversing the High Court (|1989| IR 496), that the company's oil exploration activity came within the capi- tal relief provisions of s.244 of the 1967 Act, as applied to corporation tax bys.21 of the 1976 Act. The Inspector of Taxes sought a direction from the Court as to whether all drilling activities carried out by the company came within the deci- sion made by the Court. HELD by the SupremeCourt (FinlayCJ, Hedermanand McCarthy JJ): although the High Court judge had drawn a distinction in her judgment between two types of explora- tion activities in which the company was engaged, that decision had been reversed by the Supreme Court; and in the absence of any ground for excluding the expendi- ture in question from claiming the benefit of s.244 of the 1967 Act, the company was entitled to claim all capital expendi- ture for the purposes of s.244.

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