The Gazette 1994

GAZETTE

JULY 199s

July 1980. The Limerick farm was sold in April 1982 and the bank applied most of the proceeds towards satisfaction of the debt owed by the plaintiffs husband. The plaintiff sued the solicitors for neg- ligence and breach of contract and sought a declaration that the bank did not have an equitable charge over her share in the Limerick farm. In a judgment delivered on 31 July 1992, CostelloJ held that the bank had not obtained a mortgage or charge over the plaintiff's share and ordered that it should pay to her the sum of £282,530.52 together with interest and costs. Costello J also held that the solicitors had not been negligent because they had instructed the bank to lodge the proceeds of sale in a joint account and informed it that the purchase was to be a joint one. Accord- ingly the plaintiff's claim against them was dismissed and it was ordered that she should pay their costs. The bank appealed and the plaintiff lodged a cross-appeal on the basis that Costello J should have exer- cised his discretion under section 78 of the Courts of Justice Act 1936 and ordered that, in addition to the plaintiff's costs, the bank should pay by way of recoupment the costs which she was obliged to pay to the solicitors. Held by the Supreme Court (Finlay CJ; Blayney and Denham JJ concurring) in dismissing the second named defendant's appeal and allowing the plaintiff's cross- appeal: (1) The plaintiff had not been a party to any loan contract with the bank regarding the purchase of the Limerick farm. Accordingly no equitable charge operated in respect of the plaintiff's half- interest. The letter of 29 November, even as confirmed by the letter of 4 April 1979, did not constitute an agreement by the plaintiff to create an equitable charge over her share as security for a loan advanced solely to her husband. Her proposal to charge the lands was clearly confined to a transaction in which a joint loan was granted and joint accounts were created in order to implement it. (2) It was not appropriate for the Supreme Court to con- sider an argument to the effect that the bank had a charge over the plaintiff's share through subrogation to a vendor's lien because it had not been raised in the pleadings or in the grounds of appeal. As a matter of general principle a claim to a lien must be specifically and specially pleaded. (3) Given the findings of fact made in the High Court, if the bank had succeeded in its claim that the letter of 29 November 1978 did not impose a term requiring the creation of a joint account as a condition of the creation of a charge over the plaintiff's share, prima facie the plaintiff would have been entitled to suc- ceed against the solicitors. As there had been a genuine alternative claim and al- ternative potential liability between the first named and second named defend- ants an order under section 78 should have been made. Accordingly, when the plaintiff paid the solicitors'costs she would be entitled to recoup this amount from the bank. Reported at [1994] 1 ILRM 137

prove that it had not. (4) The making of regulations dealing with the adhesive manufacturing industry by the Minister for the Environment under section 10 was not a prerequisite to the bringing of a prosecu- tion under section 24. (5) The minister was entitled to issue directions under section 5(3) specifying the best practicable means for preventing or limiting emissions. If such directions were made they could be relied upon by a defendant with a view to establishing that he had a good defence under section 24(3)(a). However, no di- rections pertaining to the type of emis- sions complained of in this case had been made and the making of such directions was not a prerequisite to the bringing of a prosecution under section 24(2). (6) Given section 2(1) of the Interpretation Act 1889, the word 'person' as used in section 11 and section 12 included a corporate body. Section 11 (2) expressly recognised that an offence under the 1987 Act could be committed by a body corporate. There was nothing in section 11 or section 12 to suggest that it was necessary to join an officer of the company in any prosecution or for the purposeof imposing a penalty by way of fine under section 12. (7) If a local authority elect to exercise their right under section 13 to bring a summary prosecu- tion, the accused does not have an elec- tion to choose between summary trial and trial on indictment before a jury. (8) Sec- tion 24(2) created a statutory offence akin to the common law misdemeanour of public nuisance which carried the special penalties provided for in section 12 and was subject to the special defences re- ferred to in section 24(3). Some of these special defences could only arise in the event of certain measures being taken under other provisions of the 1987 Act. The fact that some ground of defence might not exist yet because such measures have not been taken was not a sufficient basis for chal lenging a prosecution brought in the meantime under section 24(2). (9) The absence of regulations and orders which could be made under the 1987 Act did not prevent the applicant from know- ing the nature and extent of the offences it had allegedly committed. There was no greater element of uncertainty involved in identifying the commission of an offence contrary to section 24(2) than there was in bringing and defending a charge pertain- ing to the common law misdemeanour of public nuisance. Reported at [1994] 1 ILRM 151

T r u l oc Ltd v D i s t r i ct Judge L i am McMenamin and Donegal County Coun- cil: High Court (O'Hanlon J) 17 June 1993 Judicial Rev/ew-Certiorari -Air Pollution - Prosecution in respect of emissions from manufacturing plant - Sufficiency of evi- dence - Statutoryoffence akin to common law misdemeanour of public nuisance - Some special defences dependent upon the making of regulations and orders un- der the Act which had not been done yet - Certainty as to elements of offence - Criminal charge against a body corporate - Interpretation Act 1889, section 2(1) - Air Pollution Act 1987, sections 4, 5, 10, 11, 12, 13, 24 Facts Under section 24(2) of the Air Pollu- tion Act 1987, it is an offence for the occupier of any premises to cause or per- mit an emission from such premises in such a quantity or in such a manner as to be a nuisance. Section 24(3) sets out vari- ous factors which, if established, will con- stitute a good defence to a charge under section 24(2). Section 24(3)(a) identifies as one of these factors the use of the best practicable means to prevent or limit the emission concerned. Other defences listed by section 24(3) relate to emissions being in accordance with licences granted un- der the Act, or an emission limit value, or a special control area order, or regulations made under section 25. The applicant company carried on an adhesive manu- facturing plant. It was prosecuted by Don- egal County Council in respect of emis- sions from the plant. On 29 July 1991 it was convicted in the District Court on seven charges under section 24(2) and a fine of £300 was imposed in respect of each charge. The applicant sought an order of certiorari to quash the convic- tions. Held by O'Hanlon J in refusing the relief sought: (1) It was not the function of the High Court in the context of an applica- tion for judicial review to examine in detail the evidence tendered in support of a prosecution in the District Court with a view to determining whether that evi- dence was sufficient to support the con- viction. (2) In any event there was nothing to suggest that the evidence tendered in this case was insufficient to sustain the convictions. The applicant's factory and the pollutants emitted from it had been inspected and tests had been performed. Local residents had given evidence as to the offensive smell emanating from the factory and the respiratory problems from which they had suffered as a result of the emissions. If accepted by the district judge this evidence of nuisance would have fallen within the definition of 'air pollu- tion' contained in section 4. (3) Section 24(3) set out grounds which, if estab- lished, would constitute a good defence. No evidence had been tendered on behalf of the applicant in order to establish that it had used the best practicable means to prevent or limit the emissions and it was not incumbent upon the prosecution to 4