High Court of Ireland Decisions

1. This is a consultative case stated sent forward to the High Court by Judge Crowley, a Judge of the District Court. The case arises out of proceedings instituted in the District Court by the Plaintiff against the Defendant for the recovery of water charges in respect of the years 1994, 1995 and 1996. As is set out in the Case Stated it was accepted that pursuant to Section 65A of the Public Health (Ireland) Act, 1878 as inserted by Section 7 of the Local Government (Sanitary Services) Act, 1962 as amended by Section 8 of the Local Government (Financial Provisions) (No.2) Act, 1983 the Plaintiff was entitled to raise a charge for water supplied for domestic purposes. It was further common case that prior to the 18th July, 1995 when the Local Government (Delimitation of Water Supply Disconnection Powers) Act, 1995 came into force, a water charge was "payable by and recoverable from the person to whom the water is supplied" but that after that date any water charge raised was payable by "the consumer" under Section 2(2) of the 1995 Act. By Section 1 of the 1995 Act "consumer" is defined as "the occupier of premises for which a supply of water for domestic purposes is provided or, where the premises are either unoccupied or are not owned by a local authority and comprise more than one dwelling, the owner of the premises".

2. Under the provisions of Section 11 of the Interpretation Act, 1937 "every word importing the singular shall, unless the contrary intention appears, be construed as if it also imported the plural, and every word importing the plural shall, unless the contrary intention appears be construed as if it also imported the singular". The respective expressions "person to whom the water is supplied" and "consumer" as well as the expression "the occupier of premises" must all by virtue of the 1937 Act include the plural. In none of these instances was a contrary intention expressed.

3. As appears from the Case Stated the Defendant, Dermot Lynch resides at 36 Berwick Rise, Swords Manor, Co. Dublin which is a property jointly owned by him and his wife, Kathleen Lynch. Both were resident in the premises at the relevant time. Accordingly, it is submitted by the Defendant and I think correctly, that the plural comes into play and that in the case of supplies of water before the 18th July, 1995 Mr. and Mrs. Lynch must together be regarded as "the person to whom the water is supplied" and by the same token after the 18th July, 1995 Mr. and Mrs. Lynch must be regarded as being "the consumer".

4. But it was argued on behalf of the Defendant in the District Court that as his wife was not named in either the respective demands for the charges in each of the three years or in the proceedings to recover the charges the proceedings should be dismissed. I believe this submission to be unsound. In the first place the water supplied in each of the years for domestic purposes was according to the Case Stated supplied "otherwise than by measure". Under the relevant statutory provisions the requirement for a demand at all as a condition precedent to recovery would appear to arise only in the case of water supplied by measure. The only reference to a demand seems to be in Section 65A(8) of the 1878 Act as inserted by Section 7 of the 1962 Act. In the case of water supplied otherwise than by measure the charge becomes payable on particular specified dates and the liability is not dependent upon a demand. But even if that were not so and a demand was required under the Section, I would be firmly of the view that the demand sent each year in this case was adequate. It was addressed to "occupier or Dermot Lynch". With that mode of address it was sufficient demand to both Mr. Lynch and Mrs. Lynch. It cannot have been intended by the Oireachtas that the exactly correct names would always be set out in a written demand as that would really make the Act unworkable. There would be numerous instances in which the County Council would know the apparent occupier but in the case of joint occupation might not know precisely who all the occupiers were particularly if there was any kind of regular change of occupation. In summary, therefore, it would seem to me that no demand was required in this case but that even if it had been, the demand made was perfectly adequate.

5. I turn now therefore to the question of whether Mrs. Lynch should have been joined in the proceedings and more importantly whether a decree can be given against Mr. Lynch at all when she is not. As to whether she should be joined or not depends upon whether the liability for water charges in the case of more than one occupier is a joint liability or a joint and several liability. It is argued on behalf of the Defendant that it is a joint liability and not a joint and several liability. Two submissions are put forward in support of this argument. These are:-

6. As there is no useful authority to help me, I must rely on first principles and doing so I find myself unable to accept either of these submissions. I have already expressed the view that these sections must be given a workable interpretation. If the local authority always had to identify and join and presumably serve each of the persons who together would constitute "the occupier" it would in many instances render the Act inoperable. It would be an impossible task. It has of course been suggested in argument in Court that there could have been elaborate provisions for setting up a register of occupiers. But while that may be true, I think that the very absence of such a scheme indicates that the Oireachtas did not intend that liability for water charges would be a joint liability only and not a joint and several liability. On behalf of the Plaintiff the Queen -v- Paynter 1845 Q.B. 255 has been cited where a somewhat analogous point arose in relation to rates in respect of a bridge. Lord Denman C.J. observed:-

7. I think that a similar interpretation should be applied to the statutory provisions relating to water charges as was the understanding in relation to rates. Under ordinary equitable principles a right of contribution from the co-occupiers will arise.

8. With regard to the second submission, I think that there is a basic fallacy in it. The importation of the law of contract is only in relation to recoverability and not to any other aspect of the statutory debt. All the subsection provides is that it shall be recoverable as a simple contract debt in any court of competent jurisdiction. That is essentially a procedural provision and it could have no relevance to the question of whether in the first instance the debt owing to Fingal County Council was a joint debt or a joint and several debt. In my view it was a joint and several debt for the reasons which I have indicated. If I had taken the other view, I would have gone on to say that there were full powers in the District Court to ensure that the proper parties were before the Court and that there would be nothing to prevent the Judge from adding Mrs. Lynch as a co-defendant on application of the County Council. But if I am right in my interpretation of the statute this does not in fact arise.

9. On the basis of these principles, I will now answer the specific questions which have been put to this Court by the learned District Judge. It would not be appropriate, however, to answer them precisely in the way they are put. In relation to the three questions under (A) I will simply answer that Dermot Lynch and Kathleen Lynch were together "the person to whom the water is supplied" but that it was not necessary for the Plaintiff to

10. In relation to the three questions under (B) I would give exactly the equivalent answer in relation to the expression "the consumer". Accordingly, there is no need for a demand and there is no need for Mrs. Kathleen Lynch to be joined in the proceedings.