No. 9/1981:

MALICIOUS INJURIES ACT, 1981

ARRANGEMENT OF SECTIONS

PART I PRELIMINARY AND GENERAL

1 Short title and commencement.

2 Interpretation.

3 Application.

4 Repeals.

PART II COMPENSATION FOR MALICIOUS DAMAGE TO PROPERTY AND FOR LOSS OF PROPERTY UNLAWFULLY TAKEN DURING RIOT

5 Rights to compensation for malicious damage to property.

6 Right to compensation for unlawful taking of property during riot.

7 Damage by person of unsound mind or child.

8 Notice of intention to claim compensation.

9 Application for compensation.

10 Joinder of other local authority in proceedings.

11 Award of compensation.

12 Reduction or exclusion of compensation.

13 Court in which application is to be brought.

14 Rules of court.

15 Costs.

16 Settling of claims and lodgments.

17 Appeals.

18 Cases stated for opinion of Supreme Court.

19 Recovery from successful applicant in certain circumstances.

20 Refund to local authority where compensation exceeds certain produce of rates.

21 Recovery of contribution by local authority.

22 Property recovered after payment of compensation.

23 Limitation of actions.

24 Restriction of section 685 of the Merchant Shipping Act, 1894.

25 Service of notices.

26 Power to vary amount specified in sections 5 (1), 6 (1), 12 (2).

27 Laying of orders, regulations before Houses of Oireachtas.

SCHEDULE

AN ACT TO REPEAL AND RE-ENACT WITH AMENDMENTS THE ENACTMENTS RELATING TO COMPENSATION FOR DAMAGE MALICIOUSLY CAUSED TO PROPERTY AND TO PROVIDE FOR COMPENSATION IN RESPECT OF PROPERTY UNLAWFULLY TAKEN DURING A RIOT.

[6th May, 1981]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

PART I PRELIMINARY AND GENERAL

1.—(1) This Act may be cited as the Malicious Injuries Act, 1981 .

(2) This Act shall come into operation six months after the date of its passing.

2.—In this Act—

"damage", in relation to property, includes the total or partial destruction of the property and any injury thereto;

"local authority" means the council of a county or the corporation of a county borough;

"the Minister" means the Minister for Justice;

"property" includes wild animals in captivity and incorporeal hereditaments (including easements, profits a prendre and other rights) but not a mere pleasure or amenity;

"ship" includes every description of vessel, boat and other craft, whether or not propelled by oars.

3.—This Act shall not have effect in relation to damage caused or loss suffered before the commencement of this Act.

4.—(1) The enactments set out in the Schedule are hereby repealed to the extent specified in column (3).

(2) The repeal of the provisions of the Local Government (Ireland) Act, 1898, and the Courts (Supplemental Provisions) Act, 1961 , specified in column (3) of the Schedule shall not have effect in so far as those provisions relate to section 106 of the Grand Jury (Ireland) Act, 1836.

PART II COMPENSATION FOR MALICIOUS DAMAGE TO PROPERTY AND FOR LOSS OF PROPERTY UNLAWFULLY TAKEN DURING RIOT

5.—(1) Where damage, the aggregate amount of which exceeds one hundred pounds, is maliciously caused to property, the person who suffers the damage shall be entitled to obtain compensation from the local authority in accordance with this Act.

(2) For the purpose of subsection (1), damage shall be taken to be, maliciously caused only if caused—

( a ) by a wrongful act done intentionally without just cause or excuse, or

( b ) wantonly, or

( c ) unlawfully by three or more persons unlawfully, riotously or tumultuously assembled together, or

( d ) in the course of, whether or not for the purpose of, the committing of a crime against the property damaged.

(3) Subsection (1) shall extend to damage to property which is within any harbour or within one mile beyond the coastal boundary of a local authority area or which, having been unlawfully taken, is removed from within any harbour or such one mile.

(4) The right to compensation given by this section shall be limited to compensation for the actual damage caused and shall not extend to compensation for any loss consequential on such actual damage and, in particular, shall not extend to compensation for the loss of the use of the property damaged.

6.—(1) Where three or more persons who are tumultuously and riotously assembled together maliciously cause damage, the aggregate amount of which exceeds one hundred pounds, to a building or to property within the curtilage of a building and, in the course of the riot, any property is unlawfully taken from the building, the person who suffers the loss of the property taken shall be entitled to obtain compensation from the local authority in accordance with this Act.

(2) For the purpose of subsection (1), damage shall be taken to be maliciously caused only if caused by a wrongful act done intentionally without just cause or excuse or wantonly.

(3) Subsection (1) shall also have effect in relation to a ship which is within any harbour or within one mile beyond the coastal boundary of a local authority area, to property on board such ship and to the unlawful taking of such property during a riot.

(4) The right to compensation given by this section shall be limited to compensation of an amount equal to the value of the property taken and shall not extend to compensation for any loss consequential on the taking of the property and, in particular, shall not extend to compensation for the loss of the use of the property taken.

7.—It shall not be a defence to an application for compensation under this Act merely to show that the damage to which the application relates was caused by a person of unsound mind or by a child.

8.—(1) A person seeking compensation under this Act shall, within fourteen days after, as the case may be, the damage was caused or the property was taken, serve, in accordance with this section, preliminary notice, in such form as may be prescribed by regulations made by the Minister, of his intention to apply for compensation

(2) The preliminary notice shall be served—

( a ) in the case of damage to property (other than property to which paragraph (b) or (c) relates) and in the case of loss of property unlawfully taken during a riot (other than loss to which paragraph (d)relates), upon the local authority for the area in which the damage was caused or the property was taken and upon the member in charge of the Garda Síochána station for the place where the damage was caused or the property was taken;

( b ) in the case of damage to property which, having been unlawfully taken, was removed from the area of one local authority to the area of another local authority, upon the local authority for the area from which it was removed and upon the member in charge of the Garda Síochána station for the place from which it was removed;

( c ) in the case of damage to property which is within any harbour or within one mile beyond the coastal boundary of a local authority area or which, having been unlawfully taken, was removed from within any harbour or such one mile, upon the local authority for the place on shore nearest the place where the damage was caused or from which the property was removed and upon the member in charge of the Garda Síochána station for that place on shore;

( d ) in the case of loss of property unlawfully taken during a riot from a ship which is within any harbour or within one mile beyond the coastal boundary of a local authority area, upon the local authority for the place on shore nearest the place where the property was taken and upon the member in charge of the Garda Síochána station for that place on shore.

(3) The preliminary notice shall give particulars of the time and place, so far as they may reasonably be ascertained, at which the damage was caused or the property was taken and a description of the property concerned and shall state the nature and amount of the damage or the value of the property taken, as the case may be.

9.—(1) A person who has served a preliminary notice in accordance with section 8 may make an application to the court for compensation.

(2) The application shall be brought against the local authority upon which the preliminary notice has been served.

10.—(1) A local authority upon which a preliminary notice under section 8 has been served may, within fourteen days after service of the notice or such further period as may be directed by the court, notify any other local authority that it intends to request the court to order that any compensation awarded shall be paid, either in whole or in part, out of the funds of such other local authority and a local authority so notified shall thereupon become a party to the proceedings.

(2) Any ratepayer of a local authority which is a party to the proceedings shall be entitled to appear at the hearing of an application for compensation under this Act and be heard by the court in relation thereto.

11.—(1) The court, on hearing an application for compensation under this Act, if satisfied that the applicant is entitled to compensation, shall award compensation.

(2) Where there is only one local authority which is a party to the proceedings, the court shall order that the compensation shall be paid out of the funds of that local authority.

(3) Where there is more than one local authority which is a party to the proceedings, the court may order that the compensation shall be paid out of the funds of such local authority or local authorities as shall be specified in the order and, where two or more local authorities are so specified, may order that the compensation shall be paid in such proportions as to the court seems proper.

12.—(1) In determining an application for compensation under this Act, the court may reduce the amount of the compensation it would otherwise award by such sum as it thinks just and equitable having regard to the general conduct, in the circumstances, of the person who suffered the damage or loss to which the application relates, including, in particular, his conduct as respects any precautions which might reasonably have been taken by him to avoid the damage or loss.

(2) The court shall reduce by one hundred pounds the amount of the compensation it would, but for this subsection, award to an applicant for compensation under this Act, so however that no applicant may suffer such reduction in respect of more than one claim under this Act for the same property as a result of acts occurring during any period of twelve months.

(3) Compensation shall not be payable under this Act—

( a ) where it is proved to the satisfaction of the court that the person who suffered the damage or loss to which the application relates connived at, assisted in or actively facilitated the causing of the damage or loss or was, at or about the time the damage was caused or the loss was suffered, associated with, combined with or in league with the person by whom the damage or loss was caused;

( b ) in respect of so much of the damage or loss as, in the opinion of the court, is attributable to any neglect or failure on the part of the person who suffered the damage or loss to take reasonable steps to minimise the extent thereof;

( c ) in respect of any damage or loss to the extent that compensation therefor has been recovered under any other statutory provision or under the common law or to the extent that reparation therefor has otherwise been made by or on behalf of the person who caused the damage or loss;

( d ) in respect of damage to or loss of—

(i) coins, legal tender notes, bank notes, or currency of any country, any postal orders or post office money orders or any postage or other adhesive stamps, or

(ii) articles of personal ornament (including watches and jewellery) kept otherwise than as part of stock-in-trade, or

( e ) in respect of damage to an unauthorised structure within the meaning of the Local Government (Planning and Development) Acts, 1963 and 1976, or to a structure in respect of which a notice under section 31 , 32 or 35 of the Local Government (Planning and Development) Act, 1963 , has been served and is in force or a notice or order under section 26 or 27 of the Local Government (Planning and Development) Act, 1976 , has been served or made and is in force.

13.—(1) Subject to subsections (2) and (3), every application for compensation under this Act shall be brought—

( a ) if the amount claimed does not exceed two thousand five hundred pounds, in the District Court in the district court district in which the damage or loss to which the application relates was caused, and

( b ) if the amount claimed exceeds two thousand five hundred pounds, in the Circuit Court in the circuit court circuit in which the damage or loss to which the application relates was caused.

(2) In the case of an application for compensation for damage to property, if the property, having been unlawfully taken, was removed from one district court district to another or from one circuit court circuit to another, the application shall be brought in the District Court in the district court district or in the Circuit Court in the circuit court circuit, as the case may require, from which the property was removed.

(3) In the case of an application for compensation—

( a ) for damage to property which is within any harbour or within one mile beyond the coastal boundary of a local authority area or which, having been unlawfully taken, was removed from within any harbour or such one mile, or

( b ) for the loss of property unlawfully taken during a riot from a ship within any harbour or such one mile,

the application shall be brought in the District Court in the district court district or in the Circuit Court in the circuit court circuit, as the case may require, in which the place on shore nearest the place where the damage was caused or from which the property was removed or taken is situate.

14.—(1) An application for compensation under this Act shall not be made except in accordance with rules of court.

(2) Rules of court regulating the practice and procedure in relation to such applications shall provide that non-compliance therewith shall not render any proceedings void unless the court shall so direct.

(3) The court may, in relation to any act or proceedings under this Act or under rules of court made for the purposes of this Act, extend the time for, set aside either wholly or in part, amend or otherwise deal with in such manner and on such terms as the court may think just, such act or proceedings.

15.—(1) The court may award costs to or against any party to any proceedings under this Act and to or against any ratepayer appearing at a hearing by virtue of section 10 (2) or 17 (4) and rules of court in relation to costs, except in so far as they provide for costs and fees applicable by virtue of regulations under subsection (2), shall apply in proceedings under this Act.

(2) The Minister may, with the consent of the Minister for Finance, make regulations setting out the scales of solicitors' costs and fees of counsel which will be applicable where the costs of an application for compensation under this Act are payable by a local authority, and the power of any rule-making committee to make rules of court shall be limited accordingly.

16.—(1) A local authority may settle any claim brought against it by way of an application for compensation under this Act at any time before the application is determined by the court.

(2) A local authority in proceedings against it under this Act may lodge moneys in court and the rules of court relating to lodgments in civil actions (including the provisions relating to costs in the case of a lodgment) shall apply.

( 3 ) ( a ) Where a local authority by which compensation is payable under this Act receives notice of any assignment, mortgage or charge, or of any act or event in the law, affecting such compensation, the local authority may pay the amount of the compensation into court and such payment shall to the extent thereof be a sufficient discharge to the local authority.

( b ) The court may make such order as it deems proper for the disbursement of any moneys (including any interest or dividends thereon) paid into it under paragraph (a).

17.—(1) An appeal by way of a re-hearing shall lie against a decision of the District Court to the Circuit Court and against a decision of the Circuit Court to the High Court on an application for compensation under this Act

(2) An appeal may be against the grant of an award, the amount of an award or the refusal of an award.

(3) An appeal against the grant of an award or an appeal seeking a reduction of the amount of an award may be taken by the local authority against which the application was brought, by any other local authority that was a party to the proceedings or by any ratepayer entitled by virtue of section 10 (2) to appear and be heard.

(4) Any ratepayer who is entitled by virtue of section 10 (2) to appear and be heard at the hearing of an application for compensation under this Act shall be entitled also to appear and be heard at the hearing of an appeal against a decision on such application.

18.—(1) ( a ) A court hearing any proceedings under this Act may, on its own motion or, if it so thinks proper, at the request of the applicant, a local authority which is a party to the proceedings or any ratepayer entitled by virtue of section 10 (2) to appear and be heard in the proceedings, state a case for the opinion of the Supreme Court on any question of law arising during the hearing and may make such order as to costs in the matter as it thinks proper.

( b ) An appeal shall lie to the High Court against the refusal of a request under paragraph (a) and the decision of that Court shall be final and unappealable.

( 2 ) ( a ) In any proceedings heard and determined under this Act, the applicant, a local authority which was a party to the proceedings or any ratepayer entitled by virtue of section 10 (2) to appear and be heard in the proceedings may, if dissatisfied with the determination of the court as being erroneous on a point of law, apply in writing within fourteen days after the determination to that court to state and sign a case setting forth the facts and the grounds of the determination for the opinion thereon of the Supreme Court and the court may state and sign a case in accordance with the application and make such order as to costs in the matter as it thinks proper.

( b ) An appeal shall lie to the High Court against the refusal of an application under paragraph (a) and the decision of that Court shall be final and unappealable.

( c ) Where the High Court allows the appeal, it shall order the court which made the determination to state and sign a case in accordance with the application.

(3) Upon the making of an application under subsection (2) (a) the determination in respect of which it is made shall be suspended—

( a ) where the application is granted, or where the application is refused and an appeal against the refusal is allowed, until the case stated has been heard and determined,

( b ) where the application is refused and an appeal against the refusal has not been lodged, until the expiration of fourteen days after the refusal.

(4) Section 2 of the Summary Jurisdiction Act, 1857 (as extended by section 51 of the Courts (Supplemental Provisions) Act, 1961 ), section 52 of the latter Act and section 16 of the Courts of Justice Act, 1947 , shall not have effect in relation to proceedings under this Act.

19.—(1) ( a ) Where—

(i) compensation has been awarded under this Act, and

(ii) there has been or there is subsequently paid in respect of the damage or loss concerned, by way of such compensation or reparation as is mentioned in section 12 (3) (c), any sum which was not taken into account under that provision at the time of the making of the award, the person receiving such sum shall forthwith notify the local authority concerned and shall, subject to subsection (2), forthwith reimburse to the local authority the amount of the compensation awarded, if that amount is equal to or less than that sum, or an amount equal to that sum if the amount of the compensation is greater than that sum.

( b ) Where compensation has been awarded and the court has ordered that it be paid out of the funds of two or more local authorities, each of them shall be notified under and in accordance with paragraph (a) and the amounts to be reimbursed to them under and in accordance with that paragraph shall be in the same proportions, respectively, as were ordered by the court when making the award.

(2) Where compensation has been awarded under this Act and civil proceedings have been or are subsequently instituted in any court against the person who caused the damage or loss concerned in respect of the act which gave rise to the application for compensation, and

( a ) the court awards damages against that person in favour of the plaintiff in the proceedings, or

( b ) the parties agree to settle the proceedings in consideration of the payment by that person to or for the benefit of the plaintiff in the proceedings of an agreed amount of damages,

the court may order that person to pay the damages so awarded or agreed, or any part thereof, into court.

(3) Where the court makes an order under subsection (2), it shall direct—

( a ) the payment to any local authority concerned out of any money paid into court under the order of the court of such amount as would have been reimbursed to such local authority under subsection (1), if that money had been paid to the applicant for compensation, and

( b ) that the balance, if any, of the money paid into court under subsection (2) shall be paid to the applicant for compensation or otherwise dealt with for his benefit in such manner as the court considers proper, and any amount so paid to a local authority by virtue of the direction of the court shall be deemed to have been paid under subsection (1).

( 4 ) ( a ) Where, on an application to the court by a local authority, the court is satisfied that—

(i) the local authority has paid compensation on foot of an award under this Act to any person, and

(ii) that person failed to make full and true disclosure of all the facts material to the determination of the application for compensation concerned,

the court may make an order requiring that person to reimburse to the local authority the amount of the compensation or such part thereof as the court may direct, together with any costs paid by the local authority in the original proceedings.

( b ) In paragraph (a) "the court" means the court that made the award of compensation.

(5) Subsections (1), (2) and (4) shall have effect in relation to a claim which is settled under section 16 (1) as if the settlement were an award of compensation under this Act.

(6) Any sum required to be reimbursed under subsection (1) or (4) and which is not reimbursed shall be recoverable by the local authority concerned as a simple contract debt in a court of competent jurisdiction.

( 7 ) ( a ) Any person who is required by subsection (1), or by that subsection as applied by subsection (5), to notify a local authority of the receipt of any sum by way of compensation or reparation and fails to do so without reasonable cause shall, without prejudice to his liability under that subsection to reimburse any sum to the local authority, be guilty of an offence and shall, on summary conviction, be liable to a fine not exceeding £500 or to imprisonment for a term not exceeding six months or to both the fine and the imprisonment.

( b ) (i) Where an offence under paragraph (a) which has been committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and be liable to be proceeded against and punished accordingly.

(ii) Where the affairs of a body corporate are managed by its members, subparagraph (i) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

20.—(1) Where the cost to a local authority of compensation under this Act exceeds the produce of a rate of twenty pence in the pound in any local financial year, the amount of the excess shall be refunded by the Minister for the Environment to the local authority out of moneys provided by the Oireachtas.

(2) The Minister for Finance, after consultation with the Minister for the Environment, may, whenever and so often as he thinks proper so to do, by order vary the rate in the pound provided for by subsection (1) or by an order for the time being in force under this subsection.

21.—(1) For the purpose, and only for the purpose, of the recovery of contribution by a local authority against which an award has been made on an application for compensation under this Act, the local authority and the person or persons who caused the damage or loss to which the application relates shall be deemed to be concurrent wrongdoers within the meaning of the Civil Liability Act, 1961 , and the provisions of Chapter 11 of Part III of that Act shall, in so far as they are applicable for the purpose of this section, apply and have effect.

(2) For the purpose of subsection (1), any reference to damages in the provisions applied by that subsection shall be construed as a reference to compensation under this Act.

22.—(1) Where property which was unlawfully taken and in respect of which compensation has been paid under this Act by a local authority is recovered, the local authority shall become and be the owners of the property and shall be entitled to dispose of it in such manner as they think fit.

(2) Where, in respect of such property, compensation has been paid by two or more local authorities in proportions ordered by the court under section 11 (3), those local authorities shall become and be joint owners of the property in the like proportions and shall be entitled to dispose of it in such manner as they may agree.

23.—(1) Proceedings under this Act shall not be commenced after the expiration of three years from the date on which the cause of action accrued.

(2) A cause of action under this Act shall accrue on the date of the service of a preliminary notice under section 8.

(3) Section 49 (1) (which relates to limitation in case of disability) of the Statute of Limitations, 1957 , shall apply to a right of action under this Act as if, in paragraph (a) of that subsection, the reference to that Act were a reference to this Act and for "six years" there were substituted "three years".

24.—The jurisdiction under section 685 of the Merchant Shipping Act, 1894, shall not extend to an application for compensation under this Act.

25.—(1) Any notice to be served under this Act may be served by post and, if so served, shall be served by registered post.

(2) Service of a notice under this Act on behalf of a person shall be deemed, for the purposes of this Act, to be service of the notice by the person.

26.—The Minister, with the consent of the Minister for Finance, may, whenever and so often as he thinks proper so to do, by order vary the amount specified in sections 5 (1), 6 (1) and 12 (2).

27.—Every order and regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order or regulation is passed by either such House within the next subsequent twenty-one days on which the House has sat after the order or regulation is laid before it, the order or regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

SCHEDULE

ENACTMENTS REPEALED

ACTS REFERRED TO

MARGINAL ABBREVIATIONS