The Gazette 1995

GAZETTE

JANl'ARY/EEBRUARY 1995

IR118 applied. (2) S. 2 provided without any ambiguity that property falling within any of the categories of fixed property specified in the schedule was deemed to be a rateable hereditament. If a particular property fell within one of these categories of fixed property no further enquiry had to be made as to whether it fell into any of the other cate- gories. (3) The decision of the High Court that the marina was a fixed moor- ing was a determination of a mixed question of fact and law which had not been challenged on appeal. In the light of this finding it was inevitable that the marina fell within one of the categories of fixed property listed in the schedule. (4) It was.not illogical or capricious that the 1986 Act should make all forms of fixed mooring rateable hereditaments by virtue of reference no. 4 while pre- venting certain constructions affixed to land developed for the purpose of sport from being rateable hereditaments by virtue of reference no. 2. Per curiam: An inconsistency existed as between the wording of reference no. 1 and refer- ence no. 2 insofar as it was unclear whether something which would be deemed to be a rateable hereditament under reference no. 1 would still be rate- able even though it appeared to be ca- pable of being exempted under refer- ence no. 2, but this inconsistency did not Practice - Res judicata - Issue estoppel - Challenge in civil proceedings to conviction by Special Criminal Court affirmed by Court of Criminal Appeal - Final nature of determination by Court of Criminal Appeal of any appeal or other matter - Whether circumstances in which a court of first in- stance could be asked to review or set aside the decision of a court whose judgment is expressed to befinal - Courts of justice Act 1924, s. 29 - Constitution, Article 34.4.6° Facts S. 29 of the Courts of Justice Act 1924 provides that the determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be final. On 27 November 1990 the plaintiff was con- victed by the Special Criminal Court of robbery and the murder of a garda act- ing in the course of his duty. He was sentenced to 15 years' imprisonment for the robbery and to death in respect of the murder. In May 1981 the plaintiff's application for leave to appeal was re- fused by the Court of Criminal Appeal. arise in the instant case. Reported at (1994] 1 ILRM 457 Peter Pringle v. Ireland and the Attorney General: High Court (Murphy J) 19 November 1993

On 27 May 1981 the President of Ire- land, acting on the advice of the govern- ment, commuted the death penalty to 40 years' penal servitude. By a letter dated 18 June 1981 the secretary to the Minister for Justice informed the Gov- ernor of Portlaoise Prison that the gov- ernment's decision to advise the Presi- dent to commute the death penalty had been made on the understanding that the full 40 years would be served with- out remission. In 1992 the plaintiff com- menced civil proceedings in which he claimed that his prosecution, trial, con- viction and sentence were conducted, carried out and imposed in a manner repugnant to the Constitution and in violation of his rights. The defendants claimed that the matters raised by the plaintiff in his statement of claim had already been adjudicated upon by the Special Criminal Court and the Court of Criminal Appeal and were thus res ju- dicata, that the matters now raised by the plaintiff could have been raised by him at his trial and so he was estopped from raising them now, that the plain- tiff's proceedings were an abuse of the process of the court and that he did not have the necessary locus standi to chal- lenge the various statutes which he sought to impugn. Held by Murphy J in ordering that the proceedings should be stayed until the statement of claim was amended: (1) A conviction secured in a criminal court of competent jurisdiction cannot be set aside or reviewed in civil proceedings, least of all in civil proceedings con- ducted in a court of subordinate juris- diction. (2) The word 'final', whether used in Article 34.4.6° of the Constitu- tion (in conjunction with the word 'con- clusive') in relation to the Supreme Court or in the Courts of Justice Act 1924 in relation to the Court of Criminal Appeal, puts the decision of the court to which the word relates beyond review by any other judicial body. (3) Whilst it might be appropriate to consider fresh evidence where a litigant was seeking a civil remedy in civil proceedings, this was not the case where the purpose of the civil proceedings was to reverse the judgments of the criminal courts. In any event, even if the plaintiff was permit- ted to proceed here it would transpire that the case which he sought to make was based partly on legal arguments which were always available to the plaintiff and his legal advisers and partly upon an analysis of facts and documents which were available to the plaintiff and his legal advisers at the time of the criminal proceedings. Kelly v. Ireland [1986] ILRM 318 distin- guished. (4) There was a distinction be- tween the decisions of the courts and the implementation, variation and com-

Trustees of Kinsale Yacht Club v. Commissioner of Valuation: Supreme Court (Finlay CJ, O'Flaherty and Blavney JJ) 10 February 1994 Valuation - Marina attached to piles driven into the sea bed - Marina capable of being detached from piles and moved to another location - Finding that marina constituted a fixed mooring - Property falling within one of the categories of fixed property deemed to be rateable hereditaments - An- other category containing exemption in re- spect of constructions affixed to land used for sporting purposes - Valuation (Ireland) Act 1852 - Valuation Act 1986, s. 2 - Valuation Act 1988, s. 5 Facts S. 2 of the Valuation Act 1986 provides that for the purposes of the Valuation (Ireland) Act 1852, property falling within any of the categories of fixed property specified in the schedule to the 1852 Act, as inserted by the 1986 Act, shall be deemed to be rateable here- ditaments in addition to those specified in s. 12 of the 1852 Act. Reference no. 2 of the schedule refers to 'all lands devel- oped for any purpose other than agri- culture, horticulture, forestry or sport, irrespective of whether or not such land is surfaced and including any construc- tions affixed thereto which pertain to the development' and reference no. 4 refers to 'all fixed moorings, piers and docks.' The trustees of Kinsale Yacht Club were the owners of a marina which comprised a floating wooden platform attached to piles which were partially driven into the sea-bed. The platform could be detached from the piles and moved to another location. In a judgment delivered on 12 October 1992 ([1993] ILRM 393) Barr J held that the marina was a fixed mooring. The words 'all lands' in reference no. 2 in- cluded land comprising the sea-bed and so the marina was a development of land for sport. Accordingly, by virtue of reference no. 2, the marina could not be regarded as a rateable hereditament. Finally, Barr J concluded that the matter should be sent back to the Commis- sioner of Valuation so that it could be valued. The Commissioner of Valu- ation appealed. Held by the Supreme Court (Finlay CJ; O'Flaherty and Blayney JJ concurring) in allowing the appeal: (1) While the 1986 Act was not a taxing or penal stat- ute, by deeming the categories of fixed properties referred to in the schedule to be rateable hereditaments in addition to those mentioned in s. 12 of the 1852 Act, s. 2 constituted a platform or necessary statutory precondition intended to lead to the fresh imposition of liability and thus had to be given a strict interpreta- tion. Inspector of Taxes v. Kiernan [1981]

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