Neutral Citation  IEHC 464
THE HIGH COURT
CIRCUIT COURT APPEAL
[2015 No. 12 C.A.]
JAMES MEAGHER AND ADRIAN TRUEICK
PATRICK JOSEPH (OTHERWISE KNOWN AS P.J.) WOODS AND
JUDGMENT of Ms. Justice Baker delivered on the 3rd day of July, 2015
1. The Circuit Court made an order for possession of four separately rated premises in the County of Monaghan on the 23rd January, 2015. The question in this appeal is whether the Circuit Court had jurisdiction to hear and determine the application or the proceedings having regard to the fact that the combined rateable valuation of the four separate premises exceeded the jurisdiction of the Circuit Court. The plaintiffs argue that as the Circuit Court had jurisdiction to determine the application in respect of each individual premises, the subject matter of the proceedings, it is irrelevant to that jurisdiction that the combined rateable valuation is in excess of the monetary jurisdiction of the Circuit Court. The second defendant was not represented in the appeal, and the first defendant argues that the Circuit Court jurisdiction is confined to determining proceedings in respect of real property where the rateable valuation of the premises the subject matter of the proceedings, taken as a whole, is under the statutory jurisdictional limit.
2. It was agreed by counsel for the parties that I should hear and determine the jurisdictional question first, namely whether the Circuit Court had jurisdiction to hear and determine the proceedings and/or to make the possession order. Certain other questions arise in the appeal and will come to be determined in the light of my decision on the question of jurisdiction.
4. Following their appointment as receivers, they by letter of the 23rd April, 2013 sought possession of the premises comprised in the two security instruments, and possession having been refused, and in the context of a claim on the part of the receivers that the defendants, or in particular the first defendant, had attempted to obstruct the exercise by the plaintiffs of their entitlement to take possession, proceedings were instituted. The proceedings were brought in the Northern Circuit County of Monaghan by a Civil Bill for Possession bearing record number 285/2013 and show a date of issue of the 30th October, 2013. By these proceedings the plaintiffs sought an injunction requiring the defendants to deliver up possession of the two parcels of land described in the Civil Bill by reference to the parcels clause in the security instruments, and there is a plea in standard form that the two parcels were situate within the jurisdiction of the Circuit Court of Monaghan and pleads in the plural that the “rateable valuations do not exceed €254”. It is also noteworthy that the sole claim was for injunctive relief in the form of an order for possession and/or ancillary relief restraining any interference with the possession or taking of possession by the receivers. No claim for damages was made.
5. An Appearance was entered by the first defendant on the 18th December, 2013, and the second defendant has taken no part in the proceedings or in this appeal. As the second defendant was believed to be resident out of the jurisdiction the plaintiffs were given liberty to serve him by way of advertisement in a national newspaper circulating in Australia, and by order of the 12th March, 2014 service by this means was deemed good and sufficient service of the Civil Bill, and the plaintiffs were given liberty to serve all subsequent documents in the same manner.
6. Following correspondence with the first defendant, and later with his solicitors, and the exchange of a number of affidavits for the purposes of the hearing of an interlocutory application, an amended Civil Bill was delivered on the 18th November, 2014, pursuant to an order of Judge O’Hagan on the 7th October, 2014, by which the Bank added a plea that its power to appoint a receiver arose under s. 19(1)(iii) of the Conveyancing Act 1881 (the “Act of 1881”). This plea arose from a claim made in correspondence, and in affidavit, by the first defendant that the receivers were not validly appointed. Nothing turns on this plea for the purposes of the present application.
7. The exact sequence of events is somewhat unclear, but on the 13th January, 2015 Judge O’Hagan granted an ex parte interim order in terms of paras. 1, 2, 3 and 4 of the amended Civil Bill, by which the defendants were required to deliver up possession of what was described as “the first property” and “the second property”, and orders restraining unlawful interference with the possession of the receivers. The matter was adjourned to the 23rd January, 2015 and the order recites the circumstances of the adjournment as follows:-
9. In an affidavit of the 6th January, 2015 of the first defendant, described as an affidavit by way of “further reply”, there was first identified the question of jurisdiction, and the deponent exhibited four certificates of rateable valuation which when combined showed a total rateable valuation for the premises comprised in the Civil Bill of €265.97, in excess of the €254 jurisdiction of the Circuit Court. That affidavit is not shown as having been before Judge O’Hagan when he made the interim order on the 13th January, 2015 which recites that it was grounded on one affidavit only, of the 7th January, 2015 of James Meagher.
10. The interim order was appealed by notice of appeal of the 14th January, 2015 by the first defendant but it is the final order of Judge O’Hagan made on the 23rd January, 2015 that comes on for appeal before me, and that order does not recite what affidavits were before the Court but does show that the plaintiffs were represented, the first defendant appearing in person, and that there was no appearance by or on behalf of the second defendant. The order recites as follows:-
AND it appearing to the Court that the Plaintiff is entitled to possession of the premises as claimed in the Civil Bill.”
12. On 23rd February, 2015, Barr J. in the High Court made an order that a stay be put on the Circuit Court order of 23rd January, 2015 and that the rental monies in relation to the Midland Radio Group be held in an escrow account pending the determination of this appeal.
The evidence of rateable valuation
14. The certified extracts from the valuation lists show that the premises in respect of which the proceedings were brought have been subdivided for rating purposes as follows:-
a. Lot 3AC, Unit C, stated as being occupied by one Brendan McCleary, t/a the Pet Shop Online, has a rateable valuation of €90 for buildings, and €0 for land.
b. Lot 3AC, Unit 5a, stated as being occupied by Midland Radio Group Ltd, t/a Northern Sound Radio, has a rateable valuation of €89 for buildings and €0 for land.
c. Lot 3AC, Unit 5 has a rateable valuation of €73 for buildings and €0 for land and is vacant.
2) The “second property” at Old Cross Square is identified as Lot 2 and has a rateable valuation of €13.89 for buildings and €0 for land.
The legal test of jurisdiction
17. Section 22 (1)(b) provides that, absent consent, the Circuit Court does not have jurisdiction to determine any cause of the kind mentioned in column (2) of the Third Schedule. The parties contend that the relevant reference numbers are reference number 8, namely civil proceedings in which the title to land comes into question other than an action of ejectment, reference number 9, an action of ejectment other than under the Landlord and Tenant Law Amendment Act Ireland 1860, as subsequently amended, and reference number 27, being an action in relation to land claiming an injunction otherwise than as ancillary to other relief.
18. In each case the Circuit Court is stated, absent consent, not to have jurisdiction to hear and determine an action where the rateable valuation of the land exceeds £60. The amount of £60 was amended and ultimately by s.2(1)(d) of the Courts Act, 1981 the jurisdictional limit was fixed at £200, later following the introduction of the Euro to €253.94 (often treated informally as €254).
19. Thus the jurisdiction of the Circuit Court in certain claims regarding land is limited by reference to the rateable valuation of the land in respect of which relief is sought, and it has not been argued that the Circuit Court has any form of full or inherent original jurisdiction. It is not doubted that the relief sought in the Civil Bill was one in respect of which the Circuit Court had jurisdiction, as it clearly does have jurisdiction to grant orders for possession or injunctive relief requiring that possession be ceded to another.
Nature of these proceedings
21. While the right to possession might flow from the determination of a question relating to title to the land, the receivers do not claim that their right to possession arises as a matter of their title, but rather under security instruments which vested in them a statutory right to take possession in certain circumstances. As stated in the old text written in 1903 by Harrison, The Law and Practice relating to ejectments in Ireland (Dollard Press), at pp. 12 and 13:-
Effect of exceeding jurisdiction
The meaning of “land”
The Valuation Act 2001 and the interplay with the Interpretation Act 2005
27. Section 17 of the Valuation Act 2001 sets out a comprehensive and new system for the valuation of lands and replaced the old poor law valuation with a new unit of valuation. The section provides that:
28. Section 21 of the Interpretation Act 2005 links the meaning, construction and effect of a word or expression to certain identified particular words and expressions in Part 1 of the Schedule to that Act. The expression “rateable valuation” is stated to mean
30. Section 17(1) of the Act of 2001 provides a mechanism for the separate valuation of “separate relevant property” and for the identification of that separate valuation. “Relevant property” is explained in s. 14(1) of the Act as follows:-
32. I consider that the purpose of s. 17, is to mandate the fixing of a unit of valuation in respect of each separately identifiable relevant property, and requires the valuation of separate properties where they can be shown to be separate for the purposes of valuation. The scheme of the Act is to provide for separate units of valuation and for the making of a rate in respect of each, as well as for the keeping of separate records of each such rate made.
33. The link made by s. 21 of the Interpretation Act is an interpretative tool and avoids any possible confusion of language such that the rateable valuation of land is the rate made under the Act of 2001, and not any other valuation informally or otherwise made. This approach is consistent with the recent decision of Murphy J. in Bank of Ireland Mortgage Bank v. Finnegan  IEHC 304. Murphy J. hearing an appeal from the Circuit Court considered the consequence of the exclusion from the definition of rateable property for the purposes of the Act of 2001 of “any domestic premises”, and the fact that in certain cases this would have the effect that the premises of the plaintiffs were “neither rated or rateable”. She rejected the argument of the plaintiff that a letter which had issued from the Valuation Office of an ad hoc “provisional assessment” in respect of certain classes of premises, including domestic premises, was evidence of the rateable valuation of the premises. She held that such letters which resulted from an ad hoc and non statutory process were “devoid of legal effect” and came to the conclusion in those circumstances that the domestic premises in respect of which the possession proceedings were brought were not rateable at all, and had no rateable valuation to test and was not rateably valued for the purpose of giving jurisdiction to the Circuit Court.
34. I adopt the distinction drawn by Murphy J. between an ad hoc informal class of assessment, and a true rateable valuation which is made as a result of an assessment by the Valuation Office. The Valuation Act 2001 provided for the making of such a rate, and that the definitional link between the rate made under the Valuation Act and the interpretative section of the Act of 2005 has the effect that no informal or other ad hoc assessment is to be understood by the expression “rateable valuation” in any enactment. I do not consider that counsel for the plaintiffs is correct when he contends that the combined effects of the Act of 2001 and that of 2005, by which rateable valuation for the purposes of statutory interpretation is linked to the scheme established by the Act of 2001, means that in all enactments the expression “rateable valuation” is to be understood as creating a separate test of jurisdiction in respect of each individual part of premises for the purposes of giving jurisdiction to a court of limited jurisdiction.
35. To conclude otherwise would be, it seems to me, to take the view that the Oireachtas intended by virtue of the Act of 2005 to make a very substantial change to the operation of the jurisdictional test. With that proposition in mind I turn to examine the Act of 1961 and some older case law which guides my analysis.
The Act of 1961
37. I accept the argument of counsel for the plaintiffs that the court in determining the question of jurisdiction is bound to consider each relevant property separately. If circumstances have arisen where property in respect of which proceedings had been commenced comprise a number of rateable units, and if the proceedings seek relief in respect of one only of those units, then the court is mandated to consider each relevant separately rated unit as a separate entity for the purposes of determining whether it has jurisdiction to make an award in respect of that unit. Thus if a bank had taken a charge over an industrial estate divided into a number of units where each unit is separately rated, the bank may in reliance on an omnibus charge seek to obtain orders in respect of the identified unit, part only of the entire estate, and the court may assume jurisdiction if the rateable valuation of that unit is below the statutory limit. It would not matter in those circumstances if the bank’s charge was created over lands with a rateable valuation far in excess of €254, provided the lands the subject matter of the action, taken separately in accordance with the provisions of the Act of 2001 is capable of being shown to have a separate rateable valuation below the statutory limit.
38. This approach is consistent with the decision of Egan J. in Blackhall v. Grehan  3 I.R. 208 relied on by the plaintiffs. This was a judgment of the Supreme Court in a judicial review of a circuit appeal, itself a matter in respect of which Egan J. accepted the Supreme Court had no jurisdiction. Egan J. did however consider whether the Circuit Court had acted correctly in dividing the case in two where the rateable valuation of the entire lands exceeded the relevant statutory limit, and where, following the division, the relevant lands came under the limit. Egan J. in the Supreme Court, albeit obiter, appeared to endorse the approach of the Circuit Court judge by describing it as “an eminently sensible way to deal with the difficulty which had arisen”.
39. It seems to me that the dicta of Egan J. is persuasive as to the issue before me, in that the Supreme Court judge seemed to accept that a difficulty had arisen by virtue of the fact that the poor law valuation (the property having been valued under the old statutory regime) of the entire lands was in excess of the circuit jurisdiction.
Can I divide the proceedings at this stage?
41. Counsel for the plaintiff urged upon me an argument that a similarly “sensible approach” could have been taken either by the Circuit Court or by the High Court on appeal in this case. The Circuit Court did not take that approach as had the Circuit Court in Blackhall v. Grehan, and application that this be done was not made before the Circuit Court, at any time before the final order was made, to divide the proceedings and to reconstitute them as two separate actions. This is understandable as it is apparent to me from the affidavit evidence that the plaintiffs were unaware of the amount of the rateable valuation until the issue was flagged in the replying affidavit of the first defendant of the 6th January, 2015. However, as that affidavit had been served before the matter came on for final hearing, the plaintiffs had sufficient notice of the issue. Further, the issue was canvassed before the Circuit Court judge. Thus, I consider that application ought to have made to divide the proceedings before the final orders were made.
42. As to whether I may at this stage in the proceedings make an order reconstituting the proceedings as two separate claims, I note in the first place that no consent to the making of such an order is forthcoming from the first defendant. The High Court hearing an appeal from the Circuit Court determines the matter by way of a complete re-hearing but the High Court’s jurisdiction is that of the Circuit Court, and not that conferred on the High Court in its original and inherent jurisdiction. Certain limitations are apparent from the legislation as to the power of the High Court hearing a circuit appeal and in particular the court may not hear fresh evidence adduced in such a hearing in the absence of an express order for that purpose (Order 61). If the High Court on Circuit has the jurisdiction of the Circuit Court it seems to me wrong in principle to now seek to establish jurisdiction by a notional division so as to constitute the proceedings as two separate appeals, and this would have the undesirable effect that two appeals would arise from one judgment, with the consequent administrative confusion that might cause. Further, no application was made at the commencement of the appeal for such an order and the matter was canvassed only with legal submissions, and I consider it to be wrong in principle to make a division so late in the proceedings and appeal.
The leading texts
45. In their recent Irish text on specific performance, Buckley, Conroy and O’Neill, Specific Performance in Ireland (Bloomsbury, 2012), which incorporates much of the text of Farrell’s first edition, the same comment is made.
46. Taken in conjunction with the authorities refereed to above, and noting that they do not authoritatively deal with the issue raised, I adopt the statement of Farrell as correct, and notwithstanding that he has not quoted authority directly on point.
The argument from policy
50. Equally, I accept what counsel for the plaintiffs says, that if the result of an interpretative process leads to absurdity then the court must seek to achieve a result that is not absurd, and the purpose of the legislation may, and is usually, a useful tool in achieving that end. However, I consider no absurdity arises, either a general absurdity arising in the administration of the Circuit Courts generally, or in the instant case arising from the fact that the plaintiffs could have, but did not, opt to seek possession of only some of the property the subject matter of the two security instruments. The plaintiffs had a remedy, they could have opted to seek possession of that part of the property in respect of which the complaints of interference actually were made, but chose to, and did in fact, obtain an order for possession of each of the individual units of property which by the time of the order compromised four separate rated units. The plaintiffs could of course also have commenced the proceedings in the High Court, or commenced tow separate sets of proceedings in the circuit Court, and applied that they be heard sequentially.
51. I do not for that reason consider that the matter can be determined in the manner contended by the plaintiffs for reasons of policy or to further the due administration of justice.
The vacant lot: is it relevant to the Circuit Court order?
53. I cannot accept this argument, although I accept that there might have been circumstances where this approach could have been taken in the Circuit Court by the plaintiffs. It is the case that no evidence directly relevant to the third lot was adduced for the purposes of persuading the Circuit Court that injunctive relief ought to be granted, but the fact remains that possession was ordered to be delivered of all of the first property and the second property, and that included the third, albeit vacant, lot. The concept of possession in law is not merely a matter of occupation, and one can be in possession of a vacant unit if one is, or is entitled to be, in possession of the rents and profits therefrom. The receivers have obtained an order for possession of the third vacant lot, and they are free as a result to collect rents were they to find a tenant. Equally, the obtaining of possession in respect of this lot may assist the smooth sale and the delivery of vacant possession to a prospective purchaser. I accept that it may not have been the intention of the plaintiffs to seek possession of the vacant unit, but the fact is that possession of that unit was granted, and the order of the Circuit Court is quite clear and makes no exclusion.
54. Furthermore, counsel for the plaintiffs is correct that the Circuit Court order also made a determination, binding on the defendants, that the security instruments were properly created and that the receivers were validly appointed. The security instruments were made over all of the identified properties, including the three separately rated units comprising the first property. The Circuit Court exercised its jurisdiction in respect of the vacant unit in giving declaratory orders as to the validity of the security instruments, the debt and the appointment of the receivers. It is not correct in those circumstances to say that the third lot was “not relevant” to the order of the Circuit Court, and if the Circuit Court order is to bind the defendants then it binds the defendants with regard to all of the properties and not merely those in respect of which evidence was adduced to found a claim for injunctive relief.
At what date is the test of jurisdiction applied?
56. The answer to this question is found in the terms of the Act of 1961 itself, which provides that the jurisdiction of the Circuit Court to hear and determine proceedings is limited by the monetary and valuation limits provided in the Act. The fact that the Oireachtas provided that the jurisdiction was one to determine the proceedings reflects in my view an obligation that the jurisdiction be in existence at the date the relevant order is made, in other words the date of the determination of the dispute by the proceedings. Thus the correct date at which the rateable valuation is tested is the date of the order. This is consistent with the judgment of O’Hanlon J. in Harrington v. Murphy referred to at 24 ante.