Title:	Beatty & anor -v- Rent Tribunal
Neutral Citation:	[2005] IESC 66
Supreme Court Record Number:	290/03
High Court Record Number:	2001 110 JR
Date of Delivery:	10/21/2005
Court:	Supreme Court
Composition of Court:	Denham J., Hardiman J., Geoghegan J., Fennelly J., McCracken J.
Judgment by:	Geoghegan J.
Status:	Approved
Result:	Allow And Set Aside
Judgments by Link to Judgment Concurring Geoghegan J. Link Denham J., Hardiman J. Fennelly J. Link McCracken J. Link

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.

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.”

“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.”

“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.”

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.”

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.