The Gazette 1993

APRIL 1993

GAZETTE

O'Hanlon J granted the application. On ap- peal by the plaintiff HELD by the Supreme Court (Hederman, McCarthy and Costello JJ) allowing the appeal: (1) in the absence of a plea of justification, the only issue for the court trying the action would be whether the article referred to the plaintiffs; (2) although the actions arose out of the same article, they did not involve common issues of law or of , fact, since the question of whether the article referred to the different plaintiffs would be a separate issue for each person involved, and this would be a separate issue of law for the trial judge to determine and then to leave to the jury to decide as a matter of fact. Horwood v Statesman Publishing Co Ltd (1929) 98 LJKB 450 discussed; (2) there would be no substantial saving involved in a consolida- tion, and it was likely that some confusion and injustice would arise in relation to wit- nesses called for the different plaintiffs, and thus the risk that all plaintiffs might stand or fall together; (3) although the wording of 0.49, r.6 of the 1986 Rules was very wide, the question of consolidation was a matter for the court's discretion; but although con- solidation was not appropriate in the instant case, the court would order that the actions be tried in succession and be presided over by the same judge. Kennedy v Galway Vocational Education Committee Supreme Court 1 July 1992 PRACTICE AND PROCEDURE - APPEAL - SUPREME COURT - FINDINGS OF FACT BY TRIAL JUDGE - CONFLICT BETWEEN PLAINTIFF AND WITNESSES FOR DEFENDANT - TRIAL JUDGE ACCEPTING PLAINTIFF'S ACCOUNT - WHETHER SUPREME COURT MAY OVER- TURN FINDING OF FACT The plaintiff instituted proceedings claiming damages in respect of injuries alleged to have been sustained while she was a pupil in a vocational school under the control of the defendant VEC, at a time when she was 17 years. In evidence, the plaintiff stated that she fell in a pool of water in a kitchen in the school. She stated that she had been sent to the kitchen by a teacher, that she fell in the presence of another pupil, that she reported the accident immediately to a cleaner and that she attended a doctor concerning the accident. In evidence on the VEC's behalf, the plaintiff's teacher stated that pupils were not sent to the kitchen in the manner alleged by the plaintiff. The pupil stated by the plain- tiff to have been in the kitchen denied being there and the cleaner to whom the plaintiff stated she reported the accident could not recollect the event. In the High Court, Egan J held that, although the plaintiff's evidence had been unsatisfactory in some respects, it could not be said that she had lied. He concluded that, as the plaintiff's evidence indicated that the pool of water had been in position for some time, the defendant was in breach of its duty of care to her and he awarded the plaintiff 20,762. On appeal by the defendant HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ) al- lowing the appeal: (1) while the Court would not normally interfere with findings of pri- mary fact by a trial judge there were excep- tional cases where the evidence is so clearly one way as to require the intervention of the Supreme Court to say that the verdict entered by the trial judge cannot stand; (2) the Court would not interfere with the findings in the

instant case if the plaintiff's evidence had been contradicted on one item, albeit the plaintiff's account would then be rendered unsatisfactory; however, the cumulative ef- fect of the evidence on the defendant's behalf (which had not been challenged as unreli- able) was such that it was impossible to say that the plaintiff had made out her case, and on the contrary her case had been compre- hensively disproved; and in the circumstances the verdict in her favour would be set aside. Siuicre Eireann CPT v Commissioner of Valu- ation Supreme Court 7 April 1992 RATING - VALUATION - EXEMPTION FROM VALUA- TION - MACHINERY - OIL TANKS - WHETHER COURT MAY AMEND ERROR IN VALUATION LIST - Valuation (Ireland) Act 1852, ss.12, 23 - Valuation (Ireland) Act 1860, ss.7, 11 S.7 of the 1860 Act provides that 'machinery' in a mill or manufactory is exempt from rating, unless the 'machinery' is used for production of motive power. The appellant company was the occupier of a factory premises on which some oil tanks were situ- ated. One of these, a diesel oil tank, was a holding tank for diesel oil to supply mobile equipment. The other tanks were heavy fuel oil tanks, which contained pumping and heating equipment. The diesel oil tank was erroneously entered into the Buildings col- umn of the Valuation List by the Commis- sioner for Valuation. It was agreed that all the tanks would be rateable if entered into the Miscellaneous column of the List. The com- pany argued that they were exempt from rates on the grounds that the courts could not alter the List on appeal from the Commis- sioner. On case stated HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ): (1) the heavy fuel oil tanks were not involved in the manufacturing process of the company, and since they were essentially holding tanks and receptacles for oil they were thus not exempt 'machinery' within s.7 of the 1860 Act. Dicta in Beamish & Crawford Ltd v Commissioner of Valuation [1980] ILRM 149 applied. (2) it was also clear that none of the tanks were buildings within s.12 of the 1852 Act, but they would be rateable under the Miscellaneous Column of the An- nual List; (3) since an appeal against valua- tion under s.23 of the 1852 Act could involve correction of an error by the Commissioner, and since s.11 of the 1860 Act allowed a Superior Court to make such order as it may seem fit, the court was empowered not sim- ply to correct errors by the Commissioner in favour of the appellant but to make good any other error in the compilation of the List; and thus the court was empowered to alter the annual List and to transfer a rateable hereditament from one Column in the List to another Column; and accordingly the tanks would be entered in the Miscellaneous Col- umn. Dicta of Costello J in Pfizer Chemical Corp v Commissioner of Valuation (High Court, 9 May 1989) (1990) 8 ILT Digest 84 approved. Pfizer Chemical Corp v Commissioner of Valuation Supreme Court 7 April 1992 RATING - VALUATION - EXEMPTION FROM VALUA- TION - MACHINERY - OIL TANKS - WHETHER COURT MAY AMEND ERROR IN VALUATION LIST - Valuation (Ireland) Act 1860, s.11 The appellant company was the owner and occupier of a large factory premises in which 6

they manufactured food chemicals and bulk pharmaceuticals. The company appealed against the Commissioner's valuation for rat- ing purposes of certain installations on the factory site. These included tanks for the reception of crude beet molasses, tanks for the reception of sulphuric acid, a number of other tanks as well as pipelines (which were over 40 miles long) used to transmit the molasses and acid to the factory. In addition to claiming that the Commissioner should not have rated the installations, the company argued that the Commissioner had wrongly categorised them in the Annual Valuation List and that the Court had no power on appeal to amend the Annual List. Costello J held (High Court, 9 May 1989) (1990) 8 ILT Digest 84 that the Commissioner had erred in holding the installations were rateable as machinery, but concluded that, since they were not buildings, they could be rated un- der the Miscellaneous Column of the Annual List; and that the court had power to amend the Annual List, and would do so in the instant case. On appeal by the company HELD by the Supreme Court (Finlay CJ, Hederman and McCarthy JJ) dismissing the appeal: the Court had the power to amend the Annual List under s.11 of the 1860 Act; and the High Court had drawn the correct conclusions from the circumstances in the case. Siuicre Eireann CPT v Commissioner of Valuation (Supreme Court, 7 April 1992) (supra) applied. Texaco (Irl) Ltd v Murphy (Inspector of Taxes)(No.2) Supreme Court 15 May 1992 REVENUE - OVERPAYMENT OF TAX DETERMINED AFTER COURT APPEAL - INTEREST ON OVERPAY- MENT - METHOD OF CALCULATION - RATE BASED ON THAT UNDER COURTS ACTS - Income Tax Act 1967, ss.428, 550 - Finance Act 1976, s.30 - Courts Act 1981, s.22 The appellant company had successfully appealed, on case stated to the Supreme Court, against an assessment to tax levied by the respondent Inspector of Taxes: [1992] ILRM 304; [1991 ] 2 IR 449. It was agreed that the company's overpayment of tax was to be repaid together with interest, but the ques- tion arose as to the rate of interest payable. S.428 of the 1967 Act provided that interest shall be payable 'with such interest, if any, as the Court may allow.' HELD by the Supreme Court (Finlay CJ, Hederjnan and McCarthy JJ): since s.428 of the 1967 Act left the calcu- lation of the interest payable in the discretion of the Court, it would not be appropriate to refer to provisions of the tax code, such as s.550 of the 1967 Act or s.30 of the 1976 Act, which themselves set particular rates of inter- est in respect of certain events occurring, not including the instant case; nor was reference to certain bank rates appropriate since this would preclude investigation as to whether the overpayment, if invested, might have achieved a negative return; and accordingly, the court would, in its discretion, order that interest was payable at the rates set under s.22 of the 1981 Act throughout the relevant period. McGrath vMcDermott[] 988] ILRM 647; [1988] IR 258 applied. Per curiam: no view would be expressed as to whether the interest payable was itself liable to tax.