THE SUPREME COURT
Record No. 119/2016
Clarke C. J.
O’Donnell J.
McKechnie J.
MacMenamin J.
O’Malley J.
Permanent TSB plc
Plaintiff/Appellant
Defendant/Respondent
Intervenor
Judgment of the Chief Justice delivered the 12th December, 2017
1. Introduction
1.1 Both the Constitution, and its predecessor the Constitution of the Free State, provided for the establishment of courts of local and limited jurisdiction. From the foundation of the State one such court has been a Circuit Court on which was conferred a significant civil and criminal jurisdiction.
1.2 In the civil field, a wide range of property related jurisdictions have traditionally been conferred on the Circuit Court. Historically, the limit on that property related jurisdiction has normally been specified by reference to the rateable valuation of relevant property.
1.3 However, developments over recent years have now led to a situation where private residential property is not only not subject to a charge of rates but is not, at least ordinarily, valued for the purposes of rates. It follows that there are now many residential premises which have no rateable valuation. However, for some time no amendment was made to the legislation which defined the limits of the property related jurisdiction of the Circuit Court. It was in that context that the issue which arises on this appeal came into focus. The issue is a very net one.
1.4 On a proper construction of the legislation in question and having regard, if appropriate, to the provisions of the Constitution, what is the jurisdiction, if any, of the Circuit Court in cases involving residential property which does not have a rateable valuation? On one interpretation, the Circuit Court has no jurisdiction to deal with a relatively wide range of property related cases at all because the property concerned does not have a rateable valuation. On another interpretation, the Circuit Court can deal with any relevant property related case provided that the property in question does not actually have a rateable valuation of more than the specified threshold.
1.5 Put simply, the competing positions, which admittedly only relate to a particular class of residential property, suggest that the Circuit Court either has no jurisdiction or an unlimited jurisdiction in relation to the class of property in question.
1.6 In circumstances which it will be necessary to set out in a little more detail, Baker J., in the High Court, stated a case on this question for the opinion of the Court of Appeal. That Court (see Permanent TSB v. Langan [2016] IECA 229) came to the view, in answering the questions referred by Baker J., that, substantially, the answer to the issue which I have identified is that the Circuit Court does not ordinarily have jurisdiction (although there were some qualifications to that answer as set out in the ruling of the Court of Appeal). Thereafter, with the leave of this Court, a further appeal has been brought. In order to understand the issues which arise with greater precision, it is perhaps appropriate to start with a brief account of the procedural history.
2. Procedural History
2.1 The Defendant/Respondent, (“Mr. Langan”), entered into mortgages in relation to 6 properties with the Plaintiff/Appellant (“Permanent TSB”), and subsequently defaulted on the repayment of these mortgages. As a consequence of Mr. Langan’s default, Permanent TSB instituted possession proceedings in the Circuit Court in the form of two Civil Bills. By orders of the Circuit Court, Dublin Circuit, County of the City of Dublin made by Her Honour Judge Linnane on 23rd February, 2015 in -
it was ordered that Permanent TSB recover possession against Mr. Langan in both proceedings. This had the effect of giving Permanent TSB orders for possession in respect of all of the relevant properties.
2.2 Mr. Langan subsequently appealed those Circuit Court orders to the High Court. After Mr. Langan had lodged his appeal, but before his appeal could be heard by the High Court, Murphy J. delivered her judgment in Bank of Ireland Mortgage Bank v. Finnegan [2015] IEHC 304. That decision concerned the jurisdiction of the Circuit Court in disputes concerning property without a rateable valuation. Murphy J. held that the Circuit Court does not have jurisdiction in relation to such property. On the basis of this judgment, Mr. Langan successfully applied to amend his appeal to the High Court so as to permit him to challenge the jurisdiction of the Circuit Court to grant orders for possession in his case, arguing that, by virtue of the provisions of the Valuation Act 2001, (“the 2001 Act”), the properties in question were not rateable and therefore the jurisdiction of the Circuit Court was excluded.
2.3 Following the decision in Finnegan, Noonan J. delivered his judgment in Bank of Ireland Mortgage Bank v. Hanley [2015] IEHC 738. Noonan J. reluctantly reached the opposite conclusion to his colleague in the High Court, and held that the Circuit Court did have jurisdiction to hear proceedings relating to property without a rateable valuation.
2.4 Presented with these recent, conflicting High Court judgments, Baker J. stated a case to the Court of Appeal, seeking responses to the following questions:
(1) If a property is not rateable by virtue of the Valuation Act 2001, or otherwise, is the Circuit Court’s jurisdiction under s. 22(1) of the Courts (Supplemental Provisions) Act 1961 excluded?
(2) In the alternative does the Circuit Court have jurisdiction by virtue of the property not having a rateable valuation that exceeds €253.95?
(3) Is the Circuit Court entitled to proceed to judgment, unless it is shown by evidence that there is a rateable valuation which exceeds €253.95?
(4) If there is no certificate of rateable valuation, how does the court exercise its power to estimate rateable valuation under s. 31 of the County Officers and Courts (Ireland) Act 1877?
(5) Is the plea in a Civil Bill taken together with evidence on affidavit of a provisional estimate of rateable valuation, sufficient “legal evidence” on which the court can make an estimate rateable valuation for the purposes of s. 31 of the County Officers and Courts (Ireland) Act 1877?
2.5 Hogan J. delivered the judgment of the Court of Appeal, and gave the following responses to the above questions:
(1) Yes, subject to the answer given in respect of Q.3.
(2) No.
(3) Where the defendant has put the jurisdiction of the Circuit Court at issue, that Court is not entitled to proceed to judgment in respect of a domestic dwelling which has been rendered unrateable by the Valuation Act 2001, unless the case in question comes within either Part 10 of the 2009 Act or s. 3 of the 2013 Act.
(4) Does not arise.
(5) Does not arise.
2.6 Permanent TSB sought leave to appeal the decision of the Court of Appeal to this Court, which leave was granted (Permanent TSB v. Langan [2016] IESCDET 139) on the basis that the decision of the Court of Appeal involved a matter of general public importance. The grounds on which leave was granted are expressed as follows: “whether the Court of Appeal was incorrect in its answers to each of the questions posed in the case stated from the High Court and, if so, the consequences for this case”.
2.7 The Attorney General sought and obtained from this Court leave to intervene in this appeal on the basis that it was asserted that the issues raised were both of public importance in themselves and had the potential to affect other similar questions concerning statutory jurisdiction.
2.8 It should be emphasised that the problem which has given rise to this appeal stems from the fact that no specific statutory provision was made, at the time when the rating system in respect of residential premises was altered, which specifically addressed the effect which that change was intended to have on the jurisdiction of the Circuit Court. If legislation had made clear what the intended effect was to be then there would have been no difficulty. However, all three High Court Judges, and indeed the Court of Appeal, were left with the difficult task of attempting to apply existing legislation which defined the jurisdiction of the Circuit Court without any such specific measures having been adopted. In those circumstances it is not at all surprising that differing views on the issue have been expressed in previous judgments of both the High Court and the Court of Appeal. However, like the High Court and the Court of Appeal, this Court has to do the best it can with the legislation as it stands and in that context it is appropriate to turn first to the relevant provisions of the legislation itself.
3. The legislation
3.1 In the context of those issues it is first appropriate to consider the relevant legislation both in relation to the jurisdiction of the Circuit Court in proceedings such as this and also certain relevant provisions of the legislation concerning valuation.
3.2 The Courts (Supplemental Provisions) Act 1961 (“the 1961 Act”) details the circumstances where the current Circuit Court has jurisdiction in property disputes, and also sets out where that jurisdiction is excluded. However, before examining these provisions, it is worth setting out the relevant legislation which governed the jurisdiction of the courts which pre-dated the present Circuit Court in such situations.
3.3 As Hogan J. noted in his judgment in the Court of Appeal, an early predecessor to the current Circuit Court was the Civil Bill Court, which was established by the Civil Bill Courts (Ireland) Act 1851. The Civil Bill Courts were given significant property jurisdiction frequently by reference to the rateable valuation of the land in dispute. For example s. 1 of the Civil Bill Courts (Ireland) Act 1874 gave jurisdiction to deal with title matters where the rateable valuation was under £20. More generally s. 33 of the County Officers and Courts (Ireland) Act 1877 (“the 1877 Act”) gave Civil Bill Courts a general chancery jurisdiction which, in the case of mortgage suits, applied to lands where the rateable valuation did not exceed £30.
3.4 Shortly after Independence, the jurisdiction of the Civil Bill Courts was substantially transferred to the new Circuit Court established under the Courts of Justice Act 1924 (“the 1924 Act”). Section 51 of the 1924 Act provides:-
“There shall be transferred to the Circuit Court all jurisdiction not hereinbefore expressly excepted which, at the commencement of this Act, was vested in or capable of being exercised by Recorders, County Court Judges, and Chairmen and Courts of Quarter Sessions, or any of the same in Saorstát Éireann (save such jurisdiction of Justices at or of Courts of Quarter Sessions as is hereinafter conferred on or transferred to the District Court) and the provisions of sections 21 and 22 of this Act shall apply, mutatis mutandis, to the jurisdiction vested in and transferred to the Circuit Court by this Act.”
Furthermore, s. 48 of the 1924 Act provides in relevant part:-
“The Circuit Court shall have and exercise the following jurisdiction in civil cases:-
…
(iii) in title to land and rectification of the register—jurisdiction when the Poor Law Valuation of the property in question does not exceed £60…
(v) in equity cases (including winding-up of companies)—jurisdiction within the same limits as in the preceding paragraph (iv) and in winding-up cases where the issued capital of the company does not exceed £10,000;”
The limits in s. 48(iv) of the 1924 Act are:-
“…when the value of the personalty does not exceed £1,000 and the Poor Law Valuation of the land does not exceed £60;”
3.5 Subsequent to the adoption of Bunreacht na hÉireann, the current Circuit Court was established by the Courts (Establishment and Constitution) Act 1961, under Article 34.3.4 of the Constitution, which provides, “The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law.”
3.6 Section 22(5)(a) of the 1961 Act sets out the jurisdiction of that Court and provides:
“There shall also be vested in the Circuit Court all jurisdiction which, by virtue of any enactment which is applied by section 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Circuit Court.”
3.7 Section 48(1)(a) of the 1961 Act provides:
“Subject to paragraph (b) of this subsection, this section applies to the following enactments:
(i) any enactment contained in the Courts of Justice Acts, 1924 to 1961, the Court Officers Acts, 1926 to 1961, or the Criminal Justice Act, 1951…”
3.8 Therefore, as Noonan J. notes in his decision in Hanley, there is a statutory lineage connecting the Civil Bill Courts and the present Circuit Court, the effect of which is that the Circuit Court continues to enjoy generally much of the jurisdiction previously conferred on the Civil Bill Courts.
3.9 Section 22(1) of the 1961 Act sets out the current jurisdiction of the present Circuit Court. It provides as follows:
“(a) Subject to paragraphs (b) and (c) of this subsection, the Circuit Court shall, concurrently with the High Court, have all the jurisdiction of the High Court to hear and determine any proceedings of the kind mentioned in column (2) of the Third Schedule to this Act at any reference number.
(b) Unless the necessary parties to the proceedings in a cause sign, either before or at any time during the hearing, the form of consent prescribed by rules of court, the Circuit Court shall not, by virtue of paragraph (a) of this subsection, have jurisdiction to hear and determine any cause of the kind mentioned in column (2) of the Third Schedule to this Act at a particular reference number in the case mentioned in column (3) of the said Schedule at that reference number.
(c) The Circuit Court shall not, by virtue of paragraph (a) of this subsection, have jurisdiction to hear and determine any matter of the kind mentioned in column (2) of the Third Schedule to this Act at a particular reference number in the case mentioned in column (3) of the said Schedule at that reference number…”
3.10 At first blush it might appear that subs. (b) and (c) are almost identical other than the statement at the beginning of subs. (b) which makes reference to an extension of jurisdiction by consent. However, a closer reading demonstrates that subs. (b) is concerned with jurisdiction in relation to “any cause” while subs. (c) is concerned with “any matter”.
3.11 The definition section of the 1961 Act defines a “cause” as meaning proceedings between parties and a “matter” as involving any other form of proceedings. Thus, these proceedings, being between parties, are a cause and thus governed by subs. (b). Nothing turns on this fact for the purposes of this appeal. However, it is worth noting, in passing, that the distinction between subs. (b) and subs. (c) concerns the ability of the parties to a “cause” to consent to the Circuit Court having unlimited jurisdiction. No similar provision is to be found in subs. (c) because of the absence of a defined class of party who could give the relevant consent. However, for the purposes of the issues which arise on this appeal it is of some relevance to note that the jurisdiction of the Circuit Court in any action between parties, such as this, is not necessarily confined by the limits set out in the Third Schedule, but rather can be extended by consent.
3.12 The Third Schedule of the 1961 Act is entitled:
“Civil Proceedings In Respect Of Which The Jurisdiction Of The High Court Is, With Quantitative Limitations, Conferred On The Circuit Court, And Judges Of The Circuit Court By Whom The Jurisdiction Is To Be Exercised”
3.13 The Third Schedule is set out in tabular form. The first column provides a reference number for each row. The second column is entitled “Civil proceedings in respect of which jurisdiction is conferred on the Circuit Court”. The third column is entitled “Exclusion of jurisdiction (except by consent of necessary parties) in certain cases”. The fourth column is entitled “Judge of Circuit Court by whom jurisdiction is to be exercised”. In his judgment in the Court of Appeal, Hogan J. stated that item number 28 of the Third Schedule is the relevant category of jurisdiction in this case. Permanent TSB submit that numbers 8, 9, 15 and 27 also confer a jurisdiction on the Circuit Court to make orders for possession.
3.14 It is unnecessary, for the purposes of this appeal, to express any view on whether Permanent TSB are correct in that contention for the limits on the jurisdiction of the Circuit Court in each case are expressed in the same terms and therefore the same issue would arise irrespective of whether this case falls within one or more of the relevant categories.
3.15 The limitations in question are to be found in the third column of the Third Schedule in relation to each of the reference numbers referred to. The third column specifies the circumstances where the jurisdiction conferred on the Circuit Court by the second column is excluded. With regards to reference numbers 8, 9, 15, 27 and 28, the third column in each case states that the Court’s jurisdiction is excluded where the land concerned exceeds the rateable valuation of £60. This amount was increased by the Courts Act 1971 to £100, and in turn was further increased by s. 2(1) of the Courts Act 1981 to £200. The Euro equivalent of £200 is €253.95. Therefore, the jurisdiction of the Circuit Court to hear proceedings of the type described in the above categories is, in the absence of consent, excluded where the rateable valuation of the property concerned exceeds €253.95.
3.16 It is also necessary to consider the impact of the 2001 Act on this appeal. The 2001 Act defines ‘value’ as follows:
“(a) in relation to property specified in Schedule 3 (other than property specified in paragraph 1(o) of that Schedule or falling within section 15 (4)), the value by reference to which a rate made in respect of the property has effect,
(b) in relation to property specified in the said paragraph 1(o), the value of the property for such purposes as stand designated for the time being by or under any enactment,
(c) in relation to property falling within section 15 (4), the value by reference to which a rate is struck on the property under section 55 of the Fisheries (Consolidation) Act, 1959,
and references to a valuation or revaluation carried out or made in relation to a property shall be construed accordingly.”
3.17 Section 13 of the 2001 Act provides:
“The Commissioner shall provide for the determination of the value of all relevant properties (other than relevant properties specified in Schedule 4) in accordance with the provisions of this Act.”
3.18 Section 15 of the 2001 Act provides:
3.19 Schedule 4 of the 2001 Act has the subtitle “Relevant Property Not Rateable”. Item number 6 in Schedule 4 refers to:
3.20 The 2001 Act defines “domestic premises” as:
“…any property which consists wholly or partly of premises used as a dwelling and which is neither a mixed premises nor an apart-hotel.”
3.21 “Mixed premises” are defined as:
“…a property which consists wholly or partly of a building which is used partly as a dwelling to a significant extent and partly for another or other purposes to such an extent;”
3.22 The 2001 Act defines an apart-hotel as:
“…one or more apartments, including any ancillary facilities associated with such apartments, which are used for the purposes of the trade of hotel-keeping.”
3.23 Therefore, the properties which are the subject of the current proceedings are domestic premises within the meaning of the 2001 Act, and do not fall within the exceptions to that definition. This means that the properties are “relevant property” for the purposes of s. 15(2) of the 2001 Act, and are not rateable.
3.24 Section 60 of the 2001 Act provides as follows:
“(1) A copy of a valuation list or part of such a list which is certified by an officer of the Commissioner, duly authorised by the Commissioner in that behalf, to be such a copy shall, until the contrary is proved, be regarded as a true copy of that list or part.
(2) The production to the Tribunal or a court of a document purporting to be a copy of a valuation list or part of such a list and to be certified as such a copy by an officer of the Commissioner shall, without proof of the signature of that officer or that he or she was an officer of the Commissioner duly authorised by the Commissioner to so certify the document, be sufficient evidence, until the contrary is proved, of the matters stated in the document.”
3.25 Also of relevance to the present appeal is s. 67 of the 2001 Act. Section 67 concerns “Valuation for certain purposes of property falling within Schedule 4”. Section 67 provides as follows:
“(1) In this section “property concerned” means property referred to in subsection (9).
(2) Notwithstanding the preceding sections of this Act, the Commissioner may, in relation to property concerned that falls within Schedule 4 and for the purpose of the provision referred to in subsection (9), on application being made to him or her in that behalf by a person who appears to the Commissioner to have a sufficient interest in the matter, cause the value of the property to be determined as if the property were relevant property rateable under this Act.
(3) The value of the property so determined shall be deemed to be the rateable valuation of the property within the meaning, and for the purpose, of the provision referred to in subsection (9).
(4) The Commissioner shall issue to the person referred to in subsection (2) a certificate stating the value of the property referred to in that subsection as determined thereunder.
(5) The Commissioner shall, before deciding whether to accede to an application under subsection (1) in relation to property that appears on an existing valuation list which is for the time being in force, require the applicant to show cause why the valuation of the property appearing on that list will not suffice for the purpose of the provision referred to in subsection (9).
(6) If an officer of the Commissioner, the Commissioner or the Tribunal, in dealing with an application or appeal referred to in subsection (9) of section 57, considers, having received a submission to that effect under and in accordance with that subsection, that
(a) the property, the subject of the application or appeal, is property concerned, and
(b) the application or appeal ought to be dealt with under that subsection so as to secure a determination of the value of the property for the purpose of the provision referred to in subsection (9),
he or she or it shall deal with the application or appeal under subsection (9) of section 57 accordingly.
(7) The value of the property that is determined or confirmed by virtue of the property being so dealt with shall be deemed to be the rateable valuation of the property within the meaning, and for the purpose, of the provision referred to in subsection (9).
(8) The officer of the Commissioner concerned or, in the case of an appeal referred to in subsection (6), the Commissioner shall issue to the person who made the application or appeal referred to in that subsection a certificate stating the value of the property as determined or confirmed by virtue of its being dealt with in the manner referred to in that subsection.
(9) The provision mentioned in the preceding subsections of this section is any provision of a statute passed before the commencement of this Act, or of an instrument made under such a statute, which imposes as a condition or as one of the conditions for the enjoyment of, or the entitlement to, any right under the statute or instrument a condition expressed to relate to the rateable valuation of a property…”
3.26 In effect, s. 67 provides that the Commissioner of Valuation can cause the value of any property to be determined, notwithstanding the fact that it is listed in Schedule 4 as property which is not rateable. Subsection 9 specifies that it is in circumstances where the provision of a statute passed before the commencement of the 2001 Act imposes as a condition for the enjoyment of, or entitlement to, any right under the statute a condition expressed to relate to the rateable valuation of a property that a certificate may be issued under section 67. The Attorney General submits that the rateable valuation thresholds in the Third Schedule of the 1961 Act are examples of enactments and statutory conditions contemplated by section 67.
3.27 Also of some relevance are certain provisions of the Land and Conveyancing Law Reform Act 2009 (“the 2009 Act”). Section 97(2) of the 2009 Act provides:
“A mortgagee may apply to the court for an order for possession of the mortgaged property and on such application the court may, if it thinks fit, order that possession be granted to the applicant on such terms and conditions, if any, as it thinks fit.”
3.28 Section 101(5) of the 2009 Act provides:
“Where an application under section 97(2) or section 100(3) concerns property which is subject to a housing loan mortgage the Circuit Court shall have exclusive jurisdiction to deal with the application and the application shall not be made to the High Court.”
3.29 However, the 2009 Act does not apply to mortgages created prior to its entering into force on 1 December 2009, and therefore does not apply in the present case.
3.30 Section 3(2) of the Land and Conveyancing Law Reform Act 2013 should also be noted. It applies to mortgages relating to principal private residences, and provides that:
“Subject to subsection (4), proceedings brought by a mortgagee seeking an order for possession of land to which the mortgage relates and which land is land to which this section applies shall be brought in the Circuit Court.”
3.31 This section does apply to mortgages created before 1 December 2009. However, in the present case none of the properties in question are Mr. Langan’s principal private residence, and therefore the section does not apply.
3.32 It follows from a review of the relevant legislative provisions that the position in respect of the property jurisdiction of the Circuit Court in relation to that class of case into which the properties the subject matter of this appeal fall, remains, as of the relevant time for these proceedings, governed by the Third Schedule to the 1961 Act. The key question of construction which the Court must, therefore, address concerns the proper interpretation of the limitation on the jurisdiction of the Circuit Court in relevant property cases which is to be found in the third column of that Schedule and which excludes the jurisdiction of the Circuit Court “where the land concerned exceeds the rateable valuation of (as a result of various amendments and changes) €253.95.” I, therefore, turn to that issue of construction.
4. Discussion
4.1 There are a number of distinctions which, in my view, need to be identified at this stage for they are apt to cause confusion. It is, perhaps, in colloquial terms possible to use the word “rateable” in a number of different circumstances. “Rateable” property might be taken to refer to property on which rates are actually levied. The same words might, on the other hand, be taken to refer to property which actually has a rateable valuation. It is, however, important to note that the technical meaning of that term as used in the 2001 Act relates to the former of those meanings, for s. 15 provides that the property referred to in Schedule 4 “shall not be rateable” thus meaning that rates cannot be levied on such property (including, of course, residential property).
4.2 However, it is clear that it remains possible for there to be a valuation for rating purposes on property even though it may not be “rateable” in the sense in which I have just identified. Most obviously, property can have a rateable valuation attributed to it as a result of the process set out in s. 67 of the 2001 Act. In that context it is appropriate to note that s. 67(3) of the 2001 Act makes clear that a valuation determined in accordance with that section is “deemed” to be the rateable valuation of the property concerned and must be the subject of a certificate from the Commissioner in accordance with subsection (4). It therefore follows that a property which has had attributed to it a rateable valuation in accordance with s. 67 of the 2001 Act has a rateable valuation for the purposes of determining the jurisdiction of the Circuit Court under the 1961 Act.
4.3 There may also be properties which have a current rateable valuation which pre-dated the 2001 Act and which have not been excluded from relevant valuation lists because those lists have not been fully revised since the 2001 Act came into force. It is not necessary, for the purposes of this judgment, to deal comprehensively or exhaustively with all categories of case where it may be said that a property has a rateable valuation even though it is not “rateable” in the sense in which that term is used in section 15. Suffice it to say that it is, therefore, necessary to identify and keep a clear distinction in mind between two different concepts. The first is the question of “rateability” which, when the term is properly used, refers only to the question of whether rates can actually be levied on the property concerned. The second, being “rateable valuation”, refers to the question of whether a property has (or, could have) a valuation attributed to it in accordance with the 2001 Act or any of its predecessors.
4.4 It may be that the word “rateable”, as used in some of the judgments in this area to date, and, indeed, in the answer to question 3 given by the Court of Appeal to the questions raised by Baker J., may not have fully adopted the appropriate terminology having regard to that distinction. I will return to this issue not least when proposing answers to the questions posed by Baker J. in the case stated.
4.5 Next, it is important to record that the term “rateable valuation”, as used in the 1961 Act, is defined in the Schedule to the Interpretation Act 2005 as meaning “the valuation under the Valuation Act 2001 of the property concerned”. It follows that, in the absence of any other statutory provision, a property can only have a rateable valuation for the purposes of the 1961 Act if it has a rateable valuation determined in accordance with the terms of the 2001 Act.
4.6 Against that background it is necessary to turn to the wording used in the 1961 Act which, subject to consent, excludes from the jurisdiction of the Circuit Court a range of property related cases by reference to the rateable valuation of the property concerned. As already noted, the operative part of the 1961 Act itself (being s. 22(1)(b)) excludes jurisdiction (in the absence of consent) in relation to “…any cause of the kind mentioned in column (2) of the Third Schedule to this Act at a particular reference number in the case mentioned in column (3) of the said Schedule at that reference number.” Thus, where property jurisdiction is conferred in any of the numbered items to be found in the Third Schedule, it is excluded by reference to the limits identified in the third column. As again already noted, that exclusion applies where property, insofar as it consists of land, exceeds the rateable valuation of (in present terms) the euro equivalent of Ir £200. What lies at the core of this appeal is how that exclusion should be interpreted in cases where a property does not actually have a rateable valuation at all.
4.7 I propose to approach that question of construction by initially considering the wording used and then going on to consider whether there is any reason why the literal meaning of that wording should not be applied either because of general principles of construction or because of any constitutional requirements. I will deal with each of those questions in turn.
5. The Literal Meaning
5.1 It seems to me that the literal meaning is clear. The exclusion applies where the rateable valuation of a property exceeds the relevant threshold. A property which does not have a rateable valuation at all cannot strictly speaking be said to be taken to have a rateable valuation which exceeds the threshold in question.
5.2 The Third Schedule to the 1961 Act does differ in the wording used when compared to the equivalent provision of the 1924 Act (being s. 48) to which reference has already been made. The phraseology used in s. 48 gave jurisdiction to the Circuit Court where the rateable valuation “does not exceed £60.” Thus the phraseology used in the 1924 Act was designed only to confer jurisdiction if it met the threshold requirements. The phraseology used in the 1961 Act is such as to confer jurisdiction generally but to exclude it by reference to the threshold.
5.3 In any event, I am satisfied that the literal meaning of the Schedule to the 1961 Act confers jurisdiction on the Circuit Court in relevant property related cases on a general basis but subject to an exclusion which applies only where the rateable valuation exceeds the threshold. It follows that the literal meaning requires that the Circuit Court be held to have jurisdiction unless it is the case that the property in question actually has a rateable valuation and that the rateable valuation concerned exceeds the threshold.
5.4 However, as noted earlier, that is not the end of the matter. It is necessary to consider whether there are good reasons, as, by implication, the Court of Appeal and Murphy J. in the High Court felt there were, to adopt a different approach. I will turn in due course to the constitutional issues debated but it is appropriate first to turn to certain general questions of interpretation.
6. Is there a Basis for Departing from the Literal Meaning
6.1 The essential argument which found favour in the Court below was that it was inherent in the scheme adopted for conferring jurisdiction on the Circuit Court in certain property cases that the property concerned had a rateable valuation. On that basis it was held that the absence of a rateable valuation took the property outside the scope of the scheme of the 1961 Act, and thus outside the scope of the jurisdiction of the Circuit Court.
6.2 In one sense that argument was similar to the argument advanced on behalf of Mr. Langan before this Court which drew attention to the fact that the overall scheme of the Third Schedule can reasonably be said to display an intent that “big” cases should be confined to the High Court, with “smaller” cases being permitted to be brought in the Circuit Court. There is little doubt but that such is a reasonable view of the legislation as a whole. Many of the thresholds specified in the Third Schedule place a limit on the size of case which can be brought in the Circuit Court either by reference to the rateable valuation of property or the size of claim to damages or the like. I am prepared to accept, therefore, that the clear intent of the Oireachtas was to place a limit or ceiling on the size of case in each of the relevant categories which was considered appropriate to be tried in the Circuit Court.
6.3 However, it is not at all clear as to what effect that analysis should have on the proper interpretation of the provision which lies at the heart of this appeal. The two competing interpretations suggest either that the Circuit Court has, in effect, an unlimited jurisdiction in relevant property related matters or, alternatively, has no jurisdiction at all in such cases. It follows that the effect of the change to the law concerning rateable valuation for certain domestic property has either been to require “small” property cases which come within the relevant parameters to be heard in the High Court, or to allow “big” cases in the same category to be heard in the Circuit Court. Either way, the interpretation would be at odds with the general approach that bigger cases are for the High Court and smaller cases for the Circuit Court. For that reason it does not seem to be that such analysis provides any legitimate basis for departing from the literal meaning already identified.
6.4 In the same context, it is also necessary to have regard to the fact that s. 67 of the 2001 Act does give a means for the determination of the rateable valuation of properties notwithstanding the fact that such properties are no longer ordinarily amenable to the valuation system. As noted earlier, the scope of the power conferred by s. 67 of the 2001 Act is determined by subs. (9) of that section which refers to a valuation for the purposes of “…any provision of a statute … which imposes as a condition … for the enjoyment of, or the entitlement to, any right under the statute … a condition expressed to relate to the rateable valuation of a property.” The entitlement of a mortgagee to bring proceedings in the Circuit Court seems to me to be an entitlement or right under the 1961 Act which is subject to a condition expressed by reference to rateable valuation. Thus, it seems to me to follow that it is open to any person who appears to the Commissioner, in the words of subs. (2) “to have a sufficient interest in the matter” to ask the Commissioner to value the property concerned even though the property is not rateable as such.
6.5 Thus, there is a mechanism whereby persons interested in any of the properties which no longer ordinarily have a rateable valuation attributed to them can request the Commissioner to place a valuation on the property in question. It is not, therefore, the case that the type of property with which this appeal is concerned has been taken entirely outside of the scope of rateable valuation. Rather, while such properties will not ordinarily have a rateable valuation applied to them, any interested party, which would clearly include either the owner or a mortgagee, can apply under s. 67 of the 2001 Act to have a rateable valuation assessed in accordance with the terms of that legislation. It remains, of course, the case that there may well be many properties which do not actually have a rateable valuation but any overall interpretation of the 1961 Act must have regard to the fact that there are no relevant properties which are not capable of being given a rateable valuation. For that reason I must respectfully differ from the Court of Appeal on its view that the effect of the 2001 Act was to remove the underlying basis for the property related jurisdiction of the Circuit Court. It is undoubtedly correct that the 2001 Act made the application of that jurisdiction more problematic. Indeed, it is regrettable that the potential difficulties for the jurisdiction of the Circuit Court were not identified at the time of the passing of the 2001 Act and clear and express measures adopted in law which would have made very clear, one way or the other, what the position was to be. The fact that there has been confusion over this question for a number of years now stems entirely from the failure of the Oireachtas, when enacting the 2001 Act, to identify any potential difficulties for the jurisdiction of the Circuit Court in cases such as this and make clear provision as to what the intention of the Oireachtas in that regard was.
6.6 Be that as it may, Courts have to do the best they can with the legislation that is presented to them. On balance, I have come to the view that there are no general principles of construction which ought to lead to a different view being taken of the jurisdiction of the Circuit Court in relevant property related matters than that which derives from the literal meaning of the text. The literal meaning does, undoubtedly, allow “big” cases to be heard in the Circuit Court but the alternative would be to require that very many “small” cases in the relevant categories would have to go to the High Court. There is no reason in principle why this Court should lean in favour of an interpretation which increases the costs of litigants by requiring “small” cases to go to the High Court over one which might permit some “big” cases to be heard in the Circuit Court. Furthermore, the fact that it is possible in any case to obtain an assessment of the rateable valuation of properties of the type which are the subject of these proceedings seems to me to lean against the argument which suggests that the underlying basis for the property jurisdiction of the Circuit Court in such cases disappeared on the coming into force of the 2001 Act.
6.7 However, there was a further layer to the argument to which it is now necessary to turn. Is there anything in the Constitution which might require a different view to be taken on the issue which this Court has to determine? I now turn to that question.
7. The Constitution
7.1 As already noted the Constitution contemplates a High Court with full original jurisdiction but also, under Article 34.3.4, Courts of First Instance which are “of local and limited jurisdiction”.
7.2 In passing, it should be mentioned that a point was briefly touched on in the course of argument on this appeal as to whether the wording of the Constitution permitted a Court of First Instance which was neither the High Court nor a court of local and limited jurisdiction. As the point was not argued in any detail, and as a resolution of that issue is not necessary for the purposes of properly determining this appeal, I would express no view on the question. In any event, the Circuit Court has always been considered to be a court of local and limited jurisdiction under Article 34.3.4.
7.3 The requirement that the Court be “local” clearly causes no difficulties in cases such as this for the property jurisdiction of the Circuit Court is ordinarily conferred on the circuit in which the property concerned is situated. The issue which arose for debate was, however, concerned with the requirement that the jurisdiction be “limited”. On that basis it was said that the Court might be required, in order that the interpretation to be placed on the legislation was consistent with the Constitution, to refrain from adopting an interpretation which would confer an unlimited jurisdiction on the Circuit Court in cases such as this.
7.4 That argument requires at least some analysis of the requirement that the jurisdiction of the Circuit Court be “limited”. It must be recalled that the jurisdictions conferred on the Circuit Court are many and varied. The means used for limiting jurisdiction are equally varied. As already noted, damages claims are normally limited by reference to a maximum award. Property claims have, as the issues in this case demonstrate, been traditionally limited by reference to the rateable valuation of real property. However, it is worthy of some note that property claims in respect of personal property formerly were subject to a limitation by reference to the value of the property concerned but that limitation has since been removed by an amendment to the 1961 Act. This was achieved by s. 2(1) of the Courts Act 1981 which provides:-
“The Third Schedule to the Act of 1961 is hereby amended-
(a) by the deletion of paragraph (a) in column (3) at reference numbers 18, 20, 21, 22, 24, 25, 26, 27 and 28…”
7.5 Thus, the current text of the 1961 Act certainly purports to confer an unlimited jurisdiction on the Circuit Court in a range of personal property cases.
7.6 In addition, the Circuit Court has jurisdiction to deal with various types of statutory claim without any limitation, by reference to the scale of the case, on its jurisdiction. For example, many claims in the area of leasehold enfranchisement, being claims for new leases or the buying out of ground rents under landlord and tenant legislation, can be brought in the Circuit Court without any financial or other limit on the value of the property at stake. Licensing cases are, so far as the more significant applications for licences are concerned, also brought exclusively in the Circuit Court without any limit on the value or type of property sought to be licensed. Many other examples could be given.
7.7 Either the conferring of the complete jurisdiction in respect of a particular category of case on the Circuit Court is permissible or it is not. If such a conferral was to breach the requirement in Article 34.3.4 that the jurisdiction of the Circuit Court must be “limited” then it would follow that the sort of jurisdictions which I have identified would be impermissible under the Constitution. Indeed, further questions might arise, in that eventuality, as to whether the entitlement of the parties to extend the jurisdiction of the Circuit Court by consent so as to confer unlimited jurisdiction in, for example, damages claims, would be constitutionally permissible.
7.8 However, it does not seem to me that the Constitution requires that there be some form of financial or value type limit in each and every category of case in which it is decided to confer a jurisdiction on the Circuit (or indeed the District) Court. It is perfectly possible and proper to consider that such Courts have a jurisdiction which is limited in an overall way even though there may be certain specified categories of cases in which the jurisdiction is not limited by monetary amount, property value or the like. The jurisdiction remains limited because it is confined to a particular type of proceeding even though all proceedings of that type, without an internal limitation, can be brought in the lower court.
7.9 On the other hand, and at the other end of the spectrum, it would be to set at nought the requirement of the Constitution that such Courts have a limitation on their jurisdiction if it were possible to specify some almost theoretical limitation which would have very little application in practice and thus would create what was described by Professor Casey as a “localised replica” of the High Court.
7.10 A real meaning must be given to the requirement that the jurisdiction of a court such as the Circuit Court is limited. To do otherwise would be to disregard the Constitution. But it is not necessary to go so far as to require that each and every category of case in which a jurisdiction is conferred on the Circuit Court must have a monetary or value limitation. However, that being said, it might be the case that to confer a jurisdiction in a very wide category of case without any limitation might cause constitutional difficulties.
7.11 However, it must be recalled that, in the circumstances of these appeals, the category of case with which the Court is concerned is relatively narrow. For the reasons already analysed, the jurisdictional issue which arises on these appeals is confined to properties which, in practice, were excluded from rateability by virtue of the 2001 Act and did not already have a rateable valuation. That is a limited class of property.
7.12 By analogy, a question might be asked as to whether there might be any constitutional difficulty with the more recent provisions referred to earlier which confer jurisdiction on the Circuit Court for all domestic residential possession actions. There is a defined and limited category of case referred to. The jurisdiction of the Circuit Court, while unlimited as to the value of the property, is, in that context, limited by reference to a defined and not overbroad category of case. I would not consider that there are, in fact, any constitutional difficulties with limiting the jurisdiction of the Circuit Court in that way.
7.13 I am satisfied, therefore, that it is, at the level of principle open to the Oireachtas to confer a constitutionally valid jurisdiction on a court of local and limited jurisdiction (such as the Circuit Court) where the limitation requirement is met by reference to the jurisdiction concerned being confined to a category of case, even though there may be no limitation on the scale of case within that category which can properly be brought in the lower court. However, in so saying, I would wish to make clear that there may be cases where the category is so broad or so unlimited that real constitutional difficulties could well arise. The Circuit Court cannot become a surrogate court of full original jurisdiction and remain within the parameters of a court of “limited” jurisdiction for the purposes of the Constitution. It is not, however, in my view, necessary for the purposes of the resolution of this case to attempt to identify the precise threshold by reference to which it may be possible to determine whether a particular category is overbroad and thus may infringe the requirement that the jurisdiction of the lower court be limited in the absence of some further limitation such as value. Likewise, it is not necessary to determine the threshold which may justify regarding a jurisdiction as being limited by reference to a monetary value or size of claim. It is only necessary to suggest that there almost certainly are such limitations and that it may be necessary to define the threshold by reference to which such limitations might be breached in further proceedings. However, for the purposes of this appeal it is only necessary to say that the category of case in respect of which the Circuit Court would have unlimited jurisdiction on a literal reading of the relevant provisions of the 1961 Act is clearly sufficiently defined and confined so as to be well on the legitimate side of any threshold which might ultimately be defined.
7.14 In those circumstances, it does not seem to me that the Constitution requires that any different interpretation be placed on the relevant provisions of the 1961 Act than that identified earlier. The jurisdiction thus conferred is limited, even in cases where property has no rateable valuation, by reference to the defined and limited category of case to which the issue applies. That category is further diminished by the fact that it will always be possible to obtain a valuation under s. 67 of the 2001 Act so that no property is immune from the possibility that it might, if it is sufficiently valuable, be removed from the jurisdiction of the Circuit Court by virtue of having a valuation given to it under that section which exceeded the threshold.
7.15 Against that backdrop it is necessary to turn to the specific questions addressed by Baker J., in the case stated.
8. The Answer to the Questions Raised in the Case Stated
8.1 For the reasons already addressed it seems to me that the proper answer to question (1) is that the relevant jurisdiction of the Circuit Court is not excluded by reason of the fact that a property is not rateable under the provisions of the 2001 Act. However, for the avoidance of doubt, I would add that the situation remains the same where a relevant property does not have a rateable valuation. I make this point because of the difference, analysed earlier in this judgment, between the question of whether a property may be rateable in the sense in which that term is used in the 2001 Act and whether a property actually has a rateable valuation.
8.2 I would suggest that, for like reasons, it follows, in answer to question (2), that the Circuit Court has jurisdiction in all relevant cases provided that the property in question does not actually have a rateable valuation which exceeds €253.95.
8.3 So far as questions (3) to (5) are concerned, I would propose that these be answered by indicating that it is necessary for a plaintiff in a possession action of the type which is the subject of this appeal to establish jurisdiction. That jurisdiction may be established by producing a certificate of rateable valuation which demonstrates that the property is rated below €253.95. Alternatively, that jurisdiction may be demonstrated by producing admissible evidence that the property concerned does not in fact have a rateable valuation. Given the possibility that a property may have a rateable valuation even though it is not rateable in the sense in which that term is used in the 2001 Act, it is insufficient, for the purposes of demonstrating that a property does not have a rateable valuation, to establish that the property is not rateable. Rather, admissible evidence of the fact that the property does not actually have a rateable valuation must be produced. There is no reason in principle why an appropriate officer of the Commissioner could not give evidence (whether on affidavit or, if the proceedings are being conducted on oral evidence, in court) to the effect that, having checked the records of the Commissioner, a specified property does not actually have either a rateable valuation or a deemed rateable valuation.
8.4 Given that it is sufficient, for the purposes of demonstrating jurisdiction, to establish that a property does not actually have a rateable valuation then the question of estimating rateable valuation under s. 31 of the 1877 Act, does not seem to me to arise. Properties which have rateable valuations can continue to be the subject of estimation under that Act. Properties which form part of larger entities which do not actually have a rateable valuation or a deemed rateable valuation are themselves properties which do not have an actual rateable valuation or a deemed rateable valuation and the Circuit Court therefore has, in accordance with the analysis set out in this judgment, jurisdiction to entertain relevant proceedings.
9. Conclusions
9.1 For the purposes of these conclusions I use the term rateable valuation to include a deemed rateable valuation under s. 67 of the 2001 Act. For the reasons set out in this judgment I am of the view that the Circuit Court has jurisdiction to entertain possession proceedings of the type which are the subject of this appeal in cases where a relevant property either has a rateable valuation which is shown not to exceed €253.95 or where property is shown not to actually have a rateable valuation at all. I note that it is important to keep in mind the distinction between the question of whether a property is “rateable” as that term is used in a technical fashion in the 2001 Act and whether a property has a rateable valuation.
9.2 I further conclude that a plaintiff must establish jurisdiction either by demonstrating that the relevant property has a rateable valuation which does not exceed €253.95 or by showing that the property in question does not actually have a rateable valuation at all. These matters may be demonstrated by any admissible evidence.
9.3 For those reasons I would propose that the questions raised in the case stated should be answered in the manner set out in section 8 of this judgment. In substance that means that I would propose that the appeal be allowed to the extent that I suggest that somewhat different answers be given to the questions raised by Baker J., in her case stated, to those given by the Court of Appeal.
