Supreme Court allows appeal against damages award against Rent Tribunal based on judicial immunity principles.

THE SUPREME COURT

290/2003

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

McCracken J.

BETWEEN/

MARK BEATTY AND WALTER BEATTY

Respondents/Applicants

and

THE RENT TRIBUNAL

Appellant/Respondent

and

FRANCIS McNALLY

Notice Party

JUDGMENT of Mr. Justice Geoghegan delivered 21st day of October 2005

1. The issue which arises in this appeal is whether a claim in damages for negligence may be made against the Rent Tribunal

established under the Housing (Private Rented Dwellings) (Amendment) Act, 1983 arising out of the tribunal’s manner of determining a

rent and a consequent monetary loss to the respondents on this appeal. The High Court (O’Donovan J.) made such an award and the

Rent Tribunal which is the appellant on this appeal has appealed that decision.

2. Arising out of problems concerning the constitutionality of the Rent Restrictions Act, 1960 new statutory provisions relating to rent

fixings in respect of private rented dwellings were enacted in the Housing (Private Rented Dwellings) Act, 1982. In the case of

dwellings which had formerly been controlled dwellings under the Rent Restrictions Acts, the Act provided for applications to the

District Court to have new rents fixed having regard to criteria set out in sections 12 and 13 of that Act. The 1983 Act cited above

removed this rent fixing jurisdiction from the District Court and conferred it on a newly established statutory tribunal called “The Rent

Tribunal”. This Act provided for the Tribunal to have a seal and that the relevant Minister might appoint from his staff a person or

persons to assist in the performance of the tribunal’s functions and that expenses thereby incurred would be paid out of funds

provided by the Oireachtas. There is no appeal from the determination of the Rent Tribunal except on a question of law which can go

to the High Court.

3. As Fennelly J. has given a full account of the factual background to this appeal which I happily adopt, I will set it out in an

abbreviated form. The respondents are the landlords and the notice party is the tenant of a controlled dwelling within the meaning of

the Rent Restrictions Acts. An application had been brought to the Rent Tribunal to determine a rent in 1995 and the rent was fixed

at £300 per month. Following on a new application brought in July 2000 the Rent Tribunal determined a new rent of £500 per month on

the 12th December, 2000. That figure was less than had been proposed even by the tenants’ valuer and as Fennelly J. points out

was, therefore, quite surprising.

4. The respondents took the view that in arriving at its determination the Rent Tribunal had not adopted fair procedures and

accordingly, pursuant to leave applied for judicial review in the form of an order of certiorari quashing the tribunal’s determination.

This application came on for hearing before Finnegan J. (as he then was) who granted the order sought on three grounds:

1. The presence of the tenant and the absence of the landlords during the tribunal’s inspection of the premises gave rise to an

apparent unfairness.

2. The respondents were not given adequate time to respond to a valuation report submitted by the notice party. Time limits

had been laid down for the furnishing of reports but a report from the notice party was received outside of the time limit and

shortly before the date scheduled for the decision of the tribunal and in circumstances where the tribunal refused to delay its

decision to enable the respondents to have a proper opportunity to respond.

3. Absence of adequate reasons for the determination.

Following on the High Court order, the learned High Court judge permitted a claim for damages to be made which in due course came

on for hearing before O’Donovan J. The High Court awarded damages based only on ordinary negligence.

5. There is a single and simple reason why I believe that the appeal should be allowed and the claim for damages dismissed. Even

though the Rent Tribunal (the appellant) is a tribunal which essentially determines rent disputes as between private parties it is a

statutory body exercising statutory duties in the public interest. In these circumstances, I am quite satisfied that provided it is

purporting to act bona fide within its jurisdiction it enjoys an immunity from an action in ordinary negligence. (I will comment later on

the issue of immunity in respect of misfeasance in public office). In this respect it is in no different position from a court whether such

court be traditionally categorised as “superior” or “inferior”. I agree, of course, with Fennelly J. who has pointed out in his judgment

that the same conclusion can be arrived at by a different route. Fennelly J. prefers to avoid the concept of “immunity” in favour of

the concept that a negligence action does not lie if, in all the circumstances, it would not be just and reasonable to impose a duty of

care. However, the latter seems to me to be a concept that would apply to a wide number of situations (e.g. fear of asbestos

disease cases such as in Fletcher v. Commissioners of Public Works) [2003] 1 IR 465) that have nothing to do with immunity of

judges or public tribunals. While there is obviously an overlap, I think that judicial immunity is a free standing independent concept

and should not be swallowed up by the wider concepts of the general law of negligence.

6. I am unable to accept the argument that this, being a statutory tribunal, there can be no “immunity” in the absence of a section

in the Act providing for it. In my view, the immunity of a statutory tribunal arises at common law and if it is to be removed, the

statute has to say so. In this connection and because I agree with it, I think it appropriate to cite a passage from the speech of Lord

Kilbrandon in the House of Lords in Arenson v. Casson Beckman Rutley & Co. (for some reason named in the English Court of Appeal as

Arenson v. Arenson) [1975] 3 All ER 901 at 918. I should explain that in that case there was some difference of opinion between the

Law Lords as to whether a private arbitrator should enjoy immunity. Ever since the decision of the House of Lords in Sutcliffe v.

Thackrah 1 All ER 859 it was clear that as a matter of English law somebody engaged as an expert such as an architect giving a

certificate or a valuer did not enjoy immunity, contrary to what had been held in some older cases. To some extent this gave rise to

an issue as to whether arbitrators privately appointed should enjoy immunity unless they had contractually given themselves

immunity. It had, at any rate, been conceded in argument in Arenson that arbitrators did enjoy immunity. It is not necessary for me in

any way to consider that issue as it does not arise in this case. Here the court is concerned with a tribunal set up by statute.

Relevant to that issue, Lord Kilbrandon had this to say at p. 918:

“If, then, arbitrators are not immune from suit, what about the judges? Here I believe one is in a different region to which

different principles apply. I do not rely on considerations of public policy, although no doubt it is the general acceptance of the

principles which has caused a public policy to be adopted. The whole subject has recently been reviewed in Sirros v. Moore

[1974] 3 All ER 776. I am aware that in trying to formulate a principle I am straying more towards contract than towards tort,

but as I explained earlier I am not distressed by that. The state – I use the word for convenience – sets up a judicial system,

which includes not only the Courts of Justice but also the numerous tribunals, statutory arbitrators, commissioners and so on

who give decisions, whether final or not, on matters in which the state has given them a competence. To these tribunals the

citizen is bound to go if he wants to maintain particular rights or to obtain an opinion carrying authority ultimately enforceable

by the public agencies; like as before them the citizen must appear to answer claims or complaints against him. (This is

subject to the rights citizens may have to make agreements one with another to submit their civil differences elsewhere). The

citizen does not select the judges in this system, nor does he remunerate them otherwise than as a contributor to the cost of

government. The judge has no bargain with the parties before him. He pledges them no skills. His duties are to the state: it is

to the state that the superior judge at least promises that he will do justice between all parties, and behave towards them as

a judge should. I do not suppose that there is any English lawyer, and he would be a bold Scottish lawyer, who would say that

here there is a contract between the state and the judge with a jus quaesitum tertio in the litigant. It is for the state to make

such arrangements as may be necessary for the correction of careless or erroneous judicial decisions; if those arrangements

are deemed to be inadequate, it is for parliament to put the matter right. And if it be necessary to state the matter in terms

of the law of tort, litigants are not persons to whom judges owe a legal duty of care – a duty which does not exist in the

abstract, but only towards persons in particular relationships. The fact that he is under a moral duty is nihil ad rem. Judges in

this context include, of course, persons forming tribunals and other bodies such as I referred to above. You do not test a

claim to immunity by asking whether the claimant is bound to act judicially; such a question, as Lord Reid pointed out in

Sutcliffe v. Thackrah, leads to arguing in a circle. Immunity is judged by the origin and character of the appointment, not by

the duties which the appointee has to perform, or his methods of performing them. I say nothing here about the immunity of

counsel and witnesses, which again raises quite different and, to this appeal, irrelevant consideration.”

7. I find myself in complete agreement with that passage. Those principles put into a modern form by Lord Kilbrandon have applied in

the common law courts for hundreds of years. The position was neatly summarised by Lord Denning M.R. in Sirros v. Moore cited

above at p. 781. The passage in question reads as follows:

“Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for

anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected

by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil

proceedings against him. No matter that the judge was under some gross error or ignorance or was actuated by envy, hatred

and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a court of

appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take such step to reverse his ruling. Of course if

the judge has accepted bribes or been in the least degree corrupt, or has perverted the court of justice, he can be punished

in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the

judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete

independence and free from fear. It was well stated by Lord Tenterden C.J. in Garnett v. Ferrand (1827) 6 B & C 611 at 625,

626;

‘This freedom from action and question of the suit of an individual is given by the law to the Judges, not so much for

their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may

be free in thought and independence in judgment, as all who are to administer justice ought to be’.

Those words apply not only to judges of the superior courts, but to judges of all ranks, high or low. Lord Tenterden C.J. spoke

them in relation to a coroner. They were reinforced in well chosen language in relation to a county court judge by Kelly C.J. in

Scott v. Stansfield (1868) LR 3 Exch 220 at 223; and to a colonial judge by Lord Esher MR in Anderson v. Gorrie [1895] 1 Q.B.

668 at 671.”

8. It is necessary to make two observations about that passage. It is not dealing with judges acting outside their jurisdiction

altogether. That is where in Lord Denning’s view, as pointed out by Fennelly J., the distinction is drawn between inferior courts and

superior courts of record. However, even in that case the jurisprudence to a large extent related to unpaid justices of the peace and,

certainly, to courts which were not courts of record. All Irish courts are courts of record. The second point to be made is that Lord

Denning, although making it clear that Lord Tenterden’s remarks related to a coroner does not specifically refer to statutory tribunals

but the underlying reason for the immunity quite obviously applies just as much to statutory tribunals as to courts and coroners in

inquest and that is why no attempt is made by Lord Kilbrandon to make any such distinction. The following further passage from the

judgment of Lord Denning in Sirros at p. 785 is also highly relevant. Under the subheading “The modern courts” he said the following:

“In the old days, as I have said, there was a sharp distinction between the inferior courts and the superior courts. Whatever

may have been the reason for this distinction, it is no longer valid. There has been no case on the subject for the last hundred

years at least. And during this time our judicial system has changed out of all knowledge. So great is this change that it is now

appropriate for us to reconsider the principles which should be applied to judicial acts. In this new age I would take my stand

on this. As a matter of principle the judges of superior courts have no greater claim to immunity than the judges of the lower

courts. Every judge of the courts of this land – from the highest to the lowest – should be protected to the same degree and

liable to the same degree. If the reason underlying this immunity is to ensure ‘that they may be free in thought and

independent in judgment’, it applies to every judge, whatever his rank. Each should be protected from liability to damages

when he is acting judicially. Each should be able to do his work in complete independence and free from fear. He should not

have to turn the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’ So long as

he does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in

fact. He may be ignorant in law. What he does may be outside his jurisdiction – in fact or in law – but so long as he honestly

believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make

him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such

allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he

was not acting judicially, knowing that he had no jurisdiction to do it.”

9. As there are some possible ambiguities in the two passages from the judgment of Lord Denning already cited, I want to make it

clear that if a judge or tribunal was to knowingly engage in behaviour that was criminal or malicious I would consider that for the

reason given in the last sentence of the second passage the immunity to a claim for damages for misfeasance of public office would

not apply.

10. Subject to that proviso I find the reasons given by the English judges for the immunity principle in relation to judges or tribunals

involved in judicial acts to be wholly persuasive and I am quite satisfied that the Rent Tribunal was immune in this case to liability for

damages for ordinary negligence.

11. The circumstances in which (if at all) a judge or tribunal may be sued for damages for misfeasance in public office as distinct from

ordinary negligence need not be considered in this judgment. The learned High Court judge expressly found that there was no malice

or improper intentions on the part of the Tribunal. That being so, there can be no question of liability for misfeasance in public office

based on deliberate misbehaviour. It has, however, been pointed out in the supplementary written submissions lodged on behalf of the

respondents/applicants and in the oral submissions of their counsel, Mr. Michael Counihan, S.C. that the House of Lords in Three

Rivers District Council & Others v. Bank of England [2000] 3 All ER 1 held that deliberate misconduct is not always necessary to

ground an action for misfeasance in public office. Subjective recklessness may be sufficient. To quote Lord Steyn at page 1 of the

report:

“Reckless indifference to consequences is as blameworthy as deliberately seeking such consequences. It can therefore now be

regarded as settled law that an act performed in reckless indifference as to the outcome is sufficient to ground the tort in its

second form.”

12. This view of the law was approved by this court in the unreported judgment of mine delivered the 21st April, 2005 in Kennedy v.

The Law Society of Ireland. I agree, however, with the views expressed by Fennelly J. in his judgment where he has pointed out that

even though subjective recklessness short of deliberate misconduct may be sufficient nevertheless “bad faith in the exercise of public

powers … is the essence of the tort.” I agree also with Fennelly J. that there is no evidence of that sort of recklessness in this case.

By reason of the finding by O’Donovan J. of no deliberate malice or misconduct and the absence of recklessness in the sense used by

Lord Steyn it is not necessary for me to express a definitive view as to whether an action for misfeasance in public office lies against

a judge or tribunal relating to the manner in which such judge or tribunal carried on its business. As Lord Denning pointed out, for the

most part, in such situations there are public law remedies in the form of judicial review and where there is a crime involved there may

be a prosecution. I would have considerable doubt as to whether an action lies against a judge or a statutory tribunal for misfeasance

in public office in circumstances where the court or tribunal was acting within jurisdiction but consideration of that matter can be

postponed to a suitable case.

13. I would, therefore, allow the appeal but only on the basis of judicial immunity. I do not want to express any views on the

principles of Irish law relating to recovery of damages for economic loss in a negligence action. I am satisfied that the law on this

question has not been finally determined in Ireland notwithstanding some relevant obiter dicta of Keane C.J. in Glencar Exploration

P.L.C. v. Mayo County Council (No. 2) [2002] 1 I.R. 84. It is unnecessary to express any views on that question in this appeal which,

while no doubt important to the parties, relates to a very minor factual issue.