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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Cork County Council -v- Valuation Tribunal [2007] IEHC 311 (31 July 2007) URL: http://www.bailii.org/ie/cases/IEHC/2007/H311.html Cite as: [2007] IEHC 311, [2010] 1 IR 57 |
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Judgment Title: Cork County Council -v- Valuation Tribunal Composition of Court: Dunne J. Judgment by: Dunne J. Status of Judgment: Approved |
Neutral Citation Number: [2007] IEHC 311 THE HIGH COURT JUDICIAL REVIEW [2005 NO. 283 JR] BETWEENCORK COUNTY COUNCIL APPLICANT AND VALUATION TRIBUNAL RESPONDENT AND ESAT TELECOM AND COMMISSIONER OF VALUATION NOTICE PARTIES Judgment of Ms. Justice Dunne delivered on the 31st day of July 2007 The applicant is a local authority and rating authority. It seeks the following relief by way of judicial review.
The principle complaint of the applicant herein is that the respondent failed to serve on the applicant all documentation and information in writing in connection with the appeals, including a précis of evidence, in accordance with the provisions of s. 36(2) of the Valuation Act 2001. By reason of that alleged failure, it is contended that the applicant was denied or deprived of the opportunity to attend at the Valuation Tribunal, to be heard and to adduce evidence at the hearing of the appeals and to have an opportunity to respond to the arguments made. It was also contended that the applicant was denied the opportunity to respond to a position not previously advanced. It is contended that the failure to comply with the provisions of s. 36(2) of the Valuation Act, is an error in law or ultra vires the powers of the respondent and that the failure breached the applicant’s rights to fair procedures and/or natural and constitutional justice. The applicant also contended that by failing to make its determination upon the said appeals within the time prescribed by s. 37(2) of the 2001 Act, the respondent acted without or in excess of jurisdiction. Background In June 1998, the applicant sought revision of two hereditaments, being railway lines running through the townlands of Rathmorgan and Carhoo, then in the occupation of Iarnród Eireann with a view to valuing the fibre optic cable then being laid along the railway line for the benefit of the first named notice party (ESAT). The request for revision was as follows:-
(b) The owner and occupier, where known, shall be notified by the rating authority of the determination of the application and of his right to appeal in accordance with sections 19 and 31 of the Act of 1852 against the valuation determined by the Commissioner of Valuation and shall also be notified by the rating authority of the outcome of that appeal.” Arising from the request for revision, two new hereditaments were created, bearing valuation record Nos. 2094519 (Rathmorgan) and 2094506 (Carhoo). That decision was the subject of an appeal in writing to the applicant against the revised assessments. Among the grounds of appeal the following was stated:-
2. No notice pursuant to s. 3(4)(b) of the Valuation Act 1988 has been served on the appellant.” Following that, the same grounds of appeal as to notification were contained in the appeals of ESAT to the Valuation Tribunal made pursuant to the provisions of s. 3(5)(a) of the Valuation Act 1988. Copies of those notices of appeal were transmitted by the Valuation Tribunal to the applicant herein on the 2nd May 2001. There is a dispute between the applicant, the respondent and ESAT as to whether or not this issue was dealt with in the course of the appeal to the second named notice party, the Commissioner of Valuation. Val Cotter on behalf of the applicant herein in a letter dated the 20th November 2003, commented on the manner in which the Valuation Tribunal dealt with the issue of notification. He stated:-
I am sure that it was not the intention of the appellant and/or their agents to create a deception in this instance. However, the out turn is that the Council was misled, the Commissioner of Valuation was misled and that ultimately the Tribunal by allowing this new argument, if supported by your determination, may reward this course.” In an affidavit dated the 12th October 2006, William Tuite, a Chartered Surveyor in an affidavit sworn herein on behalf of ESAT averred:-
Mr. Dineen swore a second affidavit in regard to this issue on the 21st December 2006. He indicated that he was making the affidavit for the purpose of clarifying insofar as he could the question whether the issue of incorrect notification was pursued at first appeal stage by or on behalf of ESAT. He reiterated the contents of his previous affidavit and referred again to the letter of the 19th April 2000, from Mr. Stapleton to Messrs William Fry. He stated that it was his understanding from that letter that the question of notification had been dealt with by Cork County Council, the relevant rating authority. None of the correspondence he had previously exhibited and referred to made any mention of the issue of notification. He referred to the meeting described by Mr. Tuite at para. 4, of his affidavit sworn on the 12th March 2006, at which meeting Mr. Tuite referred to the fact that:-
Following the issue of the decision by Mr. Dineen on behalf of the office of the Commissioner of Valuation further correspondence ensued during the course again no mention was made of the issue of notification. Accordingly, Mr. Dineen indicated that he was satisfied having reviewed the office file and on the basis of his recollection that the averment in his previous affidavit that no issue of any notice having been sent to an incorrect address arose at any time of the stage of first appeal is correct. Finally he noted that Mr. Tuite in his affidavit of the 12th October 2006, did not state or raise a suggestion that any notice under S. 3(4)(a) of the Valuation Act 1988, was sent to an incorrect address. A further affidavit was sworn by William Tuite on the 10th January 2007, in response to the affidavits of Val Cotter, Audrey O’Sullivan and the two affidavits of Terry Dineen. So far as the issue of non notification is concerned he reiterated his averment that he raised and pursued verbally, the issue of non notification in the meeting referred to an attended by Mr. Dineen, Mr. Gregg, Des Killen and himself. He went on to state that the indisputable fact of the matter is that the issue of non notification was raised both in writing by the solicitors for ESAT and verbally by him before the Commissioner of Valuation at the first appeal stage. He pointed out that the understanding of Mr. Dineen in relation to the letter of the 19th April 2000, from Tom Stapelton to William Fry’s solicitors does not alter the fact nor does the fact that correspondence from agents for ESAT made no mention of the issue of notification, alter the fact, namely, that there was an issue as to notification. He went on to point out that it was indeed the case as stated by Terry Dineen that no issue of any notification having been sent to an incorrect address was raised by Mr. Tuite or anyone else at the first appeal stage. That was because it was not known that the reason that no notification had been served on ESAT was because it had been sent to an incorrect address, if as he points out that was indeed the case. In those circumstances he added, there could not have been any question of an issue of an incorrect address being raised by or on behalf of ESAT at that stage. As can be seen from the matters outlined above, a key issue put forward on behalf of the applicant is that the issue of notification was not dealt with at the first appeal stage before the office of Commissioner of Valuation and that accordingly, it was not open to ESAT to take that point at the second appeal stage before the Valuation Tribunal. Clearly that view of the facts is challenged on behalf of ESAT. As a result of the decision of the appeal by the office of Commissioner of Valuation, ESAT appealed to the respondent, the Valuation Tribunal. That appeal was governed by the provisions of s. 3(5) of the 1988 Act. On or about the 2nd May 2001, pursuant to the provisions of s. 3(5) of the 1988 Act, the applicant was provided with notices of appeal in respect of the two hereditaments the subject of these proceedings. On the 2nd May 2002, the Valuation Act 2001, (the 2001 Act) came into force repealing the 1988 Act in its entirety. Section 57(7) of the 2001 Act provides as follows:-
The applicant was notified that the appeal was listed for hearing on the 4th November 2002, and it was advised that the absence of a reply by the 21st October 2002, would be taken as an indication that it did not intend to participate in the appeal. The applicant did not appear at the hearing before the Valuation Tribunal and therefore was not in a position to deal with the notification issue. It is contended on behalf of the applicant that s. 36(2) of the 2001 Act, was not complied with in that a précis of evidence submitted by ESAT prior to the appeal was not furnished to the applicant. Had the applicant been served with the précis of evidence it is submitted that it would have been alerted to the fact that ESAT was relying on the notification issue and would have attended. It would be useful at this point to refer briefly to the provisions of s. 36 of the 2001 Act. It provides:- “(1) As soon as may be after the receipt by it of an appeal made to it under section 34, the Tribunal shall serve a copy of the appeal on each of the following persons (unless the person is the appellant or an appellant in the matter) namely, the occupier of the property, the subject of the appeal, the rating authority in whose area that property is situated and the Commissioner. (2) All other documentation and information in writing submitted in connection with the appeal shall be served by the Tribunal on each of the following persons (other than in a case where the person has submitted the particular documentation or information), namely: (a) the Commissioner (who shall be the respondent in, and be entitled to be heard, and adduce evidence at, the hearing of the appeal), and (b) the occupier of the property, the subject of the appeal, and any other person who appears to the Tribunal will be directly affected by its decision on the appeal (and the said occupier and each such person shall be entitled to be heard, and adduce evidence at, the hearing of the appeal).” The appeal was heard on the 4th July 2003, and on the previous day the Valuation Office was notified that the appellants (ESAT) were not in a position to proceed on quantum issues, but wished to proceed on the notification issue. A précis had been supplied some twelve days earlier to the valuation office and it was apparent from that that ESAT was pursuing the issue of notification under s. 3(4)(a) of the 1988 Act. The key issue raised on behalf of the applicant herein was whether the respondent was obliged under s. 36(2) of the 2001 Act, to furnish the précis to the applicant. Before I deal with the legal submissions advanced to the court by the parties herein, I think it would be useful to deal with the information on affidavit from the various parties as to the précis referred to by Mr. Cotter in his affidavit. The précis was not exhibited by Mr. Cotter, a point made by Ann Creaven, the Registrar of the Valuation Tribunal in her affidavit sworn herein in the 25th July 2005. She does refer to a document submitted on behalf of ESAT headed Jones Lang LaSalle entitled “Valuation History” which contained a list of documents including a letter dated the 4th June 1998, to ESAT, 8 Upper Mount Street, Dublin 2, where it is noted:-
It is also interesting to note that in her affidavit Ms. Creaven points out that since 1988, some four thousand appeals had been commenced at the Valuation Tribunal. Rating authorities rarely become involved in appeals in the Valuation Tribunals. Indeed the number in which rating authorities have been involved is fewer than twenty. Ms O’Sullivan in the affidavit sworn by her on behalf of ESAT commented that there was nothing in the précis touching on the issues of the ground of appeal in relation to notification which would have added to the knowledge which Cork County Council already had in relation to that issue. She went on to add:-
I think from the background outlined above, certain facts emerge. 1. Having considered the various affidavits sworn herein as to the appeal before the second named notice party and in particular those of Mr. Tuite and Mr. Dineen, I am satisfied that the issue of non notification was raised at that hearing. It is clear that Mr. Dineen, mistakenly in my view, took the view that as the applicant had stated in a letter to his predecessor that the Council had complied with the requirement to serve notices under s. 3(4)(a) of the 1988 Act, that it had, in fact done so. Clearly, the Council thought that they had complied with the requirement, but as is now clear, notification was sent to the wrong address. 2. The issue of a notice having been sent to the wrong address did not arise until October 2002, when William Fry, solicitors, first had sight of a copy of the letter dated the 4th June 1998, addressed to ESAT at its former address. 3. The précis did not raise a separate or distinct issue as to the wrong address. The précis in effect contained a probable explanation for why notification was not received. 4. It is apparent from the decision of the respondent herein that before the revision of the hereditaments concerned took place, there was contact with ESAT and the Office of the Commisioner of Valuation in relation to the proposed revisions. During the course of the hearing before the respondent, counsel on behalf of ESAT indicated that ESAT “was making no issue whatsoever that the appellant as a matter of fact engaged in the provision of information to Mr. Conroy prior to the revisions. [Counsel] further said that the appellant was simply saying that the s. 3(4)(a) notice, was not served on it by the rating authority.” Submissions Counsel on behalf of the applicant herein referred to the provisions of s. 36(2) of the 2001 Act, which states:-
it is difficult to treat non compliance with an express statutory requirement on a de minimis basis. The notification of a decision of a planning authority will in all cases contain the essence of the decision itself. Notwithstanding that, parliament has ordained that both should be provided to the respondent. I cannot disregard the statutory requirement. That is not to say that, notwithstanding non compliance with the provisions of s. 6(c) in an appropriate case certiorari might be withheld as a matter of discretion, if that that were the only lacuna involved and no injustice would result. But that is not the case here for reasons which I will turn to presently.”
It is further submitted that the Valuation Tribunal could have adjourned in circumstances where it was clear that there was no evidence before the Tribunal because of the fact that the rating authority was not before it in order to allow the applicant an opportunity for evidence of notification to be given. On the basis of the failure to adjourn, it was argued that the Tribunal’s procedures were not operated fairly. It was pointed out that the Tribunal has the power to direct parties to give evidence and once it appeared there was a lack of evidence on the point of notification it could have adjourned to obtain that evidence. Finally reference was made to the decision in the case of John Pettitt and Son Limited v. Commissioner of Valuation (Unreported, High Court, 1st May 2001) which was referred to at length and relied on in its decision by the respondent. It was submitted on behalf of the applicant that the respondent herein incorrectly applied the reasoning in that case to the facts of this case. It was argued that the Tribunal, relying on that decision, had conflated notice and service of a notice with notification. It was submitted that that approach was not correct. Colm MacEochaidh on behalf of the respondent disagreed with the suggestion that the Pettitt decision was wrongly applied. He argued that the Valuation Tribunal was bound to follow the decision in the Pettitt case. He referred to a passage quoted from the Pettit decision at para. 21 thereof in which Butler J. stated as follows:- “From these cases the following general principles can be arrived at:
Counsel went on to deal with the arguments made in respect of the interpretation of s. 36(2) of the 2001 Act. He distinguished between s. 36(1) and s. 36(2). He pointed out that in s. 36(1) the Valuation Tribunal was obliged to serve a copy of the appeal on the rating authority. S. 36(2) required that all other documentation and information in connection with the appeal shall be served on certain specified persons and “any other person who appears to the Tribunal will be directly affected by its decision on the appeal”. He argued that that meant that the respondent was only required to comply with s. 36(2) when they had reached the view where it appeared to them that any other person would be directly affected by the decision on appeal. He made the point that it had not been pleaded that the decision not to furnish the documentation was unreasonable. He added that the Tribunal was entitled to decide who should get documentation. He then submitted that the court could only interfere with the exercise of the respondent’s powers in exceptional circumstances. He argued that the question as to the service of all other documentation and information provided for in s. 36(2) was not a mechanical operation on the part of the respondent. The respondent was entitled to decide who should get the documentation. It was of significance that s. 36(1) and s. 36(2) created categories of mandatory recipients of the documents identified by the two subsections. The rating authority was expressly referred to in s. 36(1) as a mandatory recipient of the documentation provided for in 36(1) but only the Commissioner of Valuation and the occupier are expressly identified as mandatory recipients in respect of s. 36(2) documentation. In other words there was no obligation on the respondent in respect of “other documentation and information” towards a rating authority. A core submission in respect of this issue was that the purpose of s. 36(2) is to ensure that the respondent conduct itself in a manner which does not infringe upon the rights of any person who may be effected by its decision. He argued that the rights of the rating authority are fully secured by the provisions of s. 36(1). Counsel also made the point that it was difficult to see from the case made by the applicant herein what difference the précis would have made to the position of the applicant herein had it been furnished to the applicant. He noted that in the findings of the respondent it was stated:-
The notices of appeal to this Tribunal in pleading the issue referred to at Paragraph 13 hereof, contained a statement of the specific grounds for these appeals as provided for in s. 3(5)(b) of the Valuation Act 1988.” Finally counsel argued that it was factually incorrect for the applicant to say that it was only on viewing the précis that they realised that ESAT was pursuing the procedural point only. All that is contained therein is an indication of some of the evidence that would be relied on in regard to the non notification point. Counsel also dealt briefly with the “fair procedures” argument raised by Mr. Collins on behalf of the applicant herein. He was critical of the argument that there was a breach of fair procedures in not hearing the applicant herein and not adjourning the hearing before the tribunal to permit evidence to be heard from or on behalf of the applicant. He also criticised the submission to the effect that the Pettitt case referred to above was incorrectly decided or applied because in the instant case ESAT actually participated in the revisions which led to the appeal. He disagreed with the suggestion that these points were covered by para. 5 of the Statement of Grounds and pointed out the decision of the respondent was not challenged on the basis of any form of unreasonableness in the operation of it’s procedures.. Frank Callanan S.C. appeared on behalf of ESAT. He also looked closely at the provisions of s. 36 and contrasted the provisions of s. 36(1) and s. 36(2). In effect, he said that the applicant is now attempting to resile from its decision not to participate in the hearing before the respondent. He pointed out that the applicant herein had, in accordance with the provisions of s. 36(1) of the 2001 Act, been served with a copy of the appeals in question. The applicant was written to by the respondent by letter dated 24th July 2002 notifying the applicant of the place, time and date of the hearing of the appeals. The letter went on:-
2. the ground on which you intend to rely”
Mr. Callanan also made the point that it was open to the applicant in response to the letter of the 24th July, to say that they understood the point in respect of notification was not raised at the first appeal but if it had been raised, they wished to be heard. They did not do so but sought to rely on the Commissioner of Valuation to represent them. He suggested that the applicant in criticising the application of the Pettitt decision to the facts of this case was effectively attempting to go outside the grounds contained in the statement of grounds herein. He argued that the applicant is now suggesting that the substantive determination of the respondent is erroneous and bad in law given that ESAT was involved in the revision process notwithstanding the apparent non-notification. He pointed out that grounds 1 to 5 in the statement of grounds relate to the failure to furnish documentation including the précis. The other points contained in paras. 6, 7 and 8 of the statement of grounds relate to other issues and there is no challenge anywhere to the decision in the Pettitt case. Mr. Callanan referred expressly to the decision of the High Court in the Pettitt case which was an appeal by way of case stated. One of the questions in that case was as follows:-
He further submitted that the Tribunal in looking at the submissions made as to the distinction between notification and service was careful in the way in which it approached that issue. He then dealt with the issue that the appeal by ESAT in respect of notification was a new argument as seems to be suggested in the affidavits. He pointed out that all that was known to Mr. Tuite at the first appeal was that they had not been notified. It was only subsequently that it was realised that the letter of notification was sent to the former address of ESAT. He dealt briefly with the fair procedures point raised, on behalf of the applicant herein. He submitted that that aspect of the matter could only be considered in the light of para. 5 of the statement of grounds herein. He argued that having regard to the terms of para. 5 of the statement of grounds, it does not in effect go beyond the argument based on s. 36(2) of the 2001 Act. Finally counsel on behalf of the Commissioner of Valuation, Mr. Conway also looked at the manner in which s. 36 should be construed. He accepted that it was axiomatic that the rating authority would be affected by any decision appealed to the Commissioner of Valuation and he submitted that therefore it must get all other documentation submitted in respect of an appeal. He argued that that was the plain meaning of s. 36. In support of his contention he relied on the decision in the case of D.B. v. Minister for Health [2003] 3 IR 12 in which it was stated at p. 21 of the judgment as follows:-
Counsel on behalf of the applicant responded to the arguments made by the other parties. He dealt with an argument raised by Mr. MacEochaidh as to the lateness of the application for judicial review. Mr. MacEochaidh had submitted that effectively the application for judicial review had been made when the decision was announced but before the reasons had been given. This particular point was not pleaded. I am satisfied that it was not feasible or reasonable to expect that judicial review proceedings would be brought, before the applicant was aware of the reasons for the decision of the respondent. In relation to the issue of fair procedures, even if the submissions in relation to s. 36 made by the applicant were not accepted, he argued that the Tribunal still had a duty to adjourn the matter even if no application had been made to it by the Commissioner of Valuation as respondent. He referred to the decision of the High Court in the case of P.S. v. Residential Address Board, unrep. 3 November 2006, judgment of Gilligan J. The judgment in that case related to the provisions of the Residential Institutions Redress Act 2002, and in particular the provisions of s. 10(6) of that Act. This related to the failure of a psychiatrist to produce clinical notes at the hearing of an application before the Redress Board. Section 10(6) provided for the making of a request for the production of such clinical notes. Section 10(6) provides:-
I further take the view that if such significance was going to be attached to the notes that such an indication should have been given to the applicant and her legal advisors to enable them to deal with this aspect, for example, possibly by way of an explanation for the non production of the medical/clinical notes.” Conclusions The first point to be considered is the question as to whether or not the provisions of s. 36(2) of the 2001 Act, required that the applicant herein be served with a précis of the evidence as submitted on behalf of the applicant. The passage referred to above from the judgement of Denham J. in the case of D.B. v. Minister for Health is of assistance in considering the provisions of s. 36(2). In construing s. 36(2) I think it is impossible to do so without having regard to s. 36 as a whole. Section 36(1) expressly puts on notice the rating authority of an appeal by serving a copy of the appeal on the rating authority. Section 36(2)(b) provides for the service of all other documentation and information in writing submitted in connection with the appeal “on the occupier of the property, the subject of the appeal and any other person who appears to the Tribunal will be directly effected by its decision on the appeal”. In this case the applicant was duly served with the appeal. It was plain from the appeal that the issue of notification was being relied on by ESAT. It is undoubtedly the case that the applicant was notified of the listing of the appeal for hearing and was invited to appear and informed that if it did not respond by a given date it would be taken as an indication that the rating authority applicant did not intend to appear. Various counsel in dealing with the provisions of s. 36(2)(b) made the comment that it was axiomatic that the rating authority is a person directly effected by the decision on the appeal, but the point was made on behalf of the respondent and ESAT that had it been intended to include the rating authority as one of the parties upon whom documentation or information should be served by the Tribunal the section would have referred expressly to the rating authority as was done in s. 36(1). In effect the argument made was that as the rating authority was expressly referred to in s. 36(1), the absence of a reference to the rating authority in s. 36(2)(b) meant that it was not intended to include the rating authority as coming within the definition of any other person. Rather it was contended that it was intended that parties other than the rating authority and the Commissioner of Valuation who might be affected by the decision were to be served with relevant documentation and information. It seems to me that that is an over simplistic interpretation of s. 36(2)(b). It is indeed axiomatic that the rating authority is a party directly affected. In the course of submissions one of the arguments made against the applicant was that if the applicant’s submissions in respect of the interpretation of s. 36(2)(b) were correct, it would follow that the Tribunal would have to engage in a mechanical operation of automatically sending all documentation and information to the rating authority in every case. I do not accept that contention. The wording of s. 36(2)(b) expressly states:
In the course of argument, it was suggested that the interpretation of s. 36(2)(b) of the 2001 Act contended for by the applicant would involve a mechanical operation on the part of the respondent in sending every document or piece of information to the rating authority as a party directly affected by every decision. I do not think that this is so. The issue in the appeals herein was non-notification. The précis contained a possible explanation for that. In my view, it would be readily apparent to anyone considering the provisions of s. 36(2)(b) of the 2001 Act that the rating authority should have been furnished with the précis. The respondent was not required to engage in a mechanical operation. On the contrary, it was required to engage with the information and documentation submitted and to consider if it was required to serve that information and documentation to “any other person”. It does not appear that the respondent in this case ever considered the issue. Given the views that I have expressed in respect of s. 36(2)(b) of the 2001 Act, it does not seem to me that it is necessary to consider the issue of fair procedures raised by the applicant. I want to deal very briefly with the point that was raised by the applicant in respect of the provisions of s. 37(2) of the 2001 Act. It provides that the Tribunal shall make a decision on an appeal made to it under s. 34 within six months from the date of its having received the appeal. As will be recalled the appeal in this case started before the commencement of the 2001 Act. The 2001 Act, contains transitional provisions. It was argued on behalf of the applicant that the decision of the respondent should be struck down on the basis that its decision was given more than six months after the date to its having received the appeal. It was argued on behalf of the respondent and on behalf of ESAT that it could not have been the intention of the legislature to retrospectively apply a time limit on the Tribunal for the giving of its decisions. At the time the respondent received the appeal there was no requirement on it to announce its decisions within six months of the date of receipt. It was argued that any other interpretation would lead to administrative absurdity and chaos. I have to say that I accept the arguments of Mr. MacEochaidh on this particular point. It seems to me that in this regard the provisions of s. 37(2) are directory rather than mandatory. One only has to consider what would happen to appeals if a decision was not furnished within six months. Does that mean that all such appeals are automatically invalid or liable to be struck down? That cannot be the purpose of the provision. Rather it seems to me that the legislature was setting a time limit within such decisions should be furnished and providing some certainty to parties as to when they are entitled to require or compel the Valuation Tribunal to furnish a decision. Accordingly, I reject the argument of the applicant in this regard. Having reached the decision that the applicant should have been furnished with the précis, the question arises as to whether having regard to all the circumstances of the case, the court should exercise its discretion to grant the relief sought herein. On balance and having considered all of the facts and circumstances of this case I can see no basis on which the court should not exercise its discretion in favour of the applicant. I accept that there is no evidence before me to show that the applicant did, in fact, notify ESAT. It is important to remember the decision of the respondent herein:-
I will hear the parties on the appropriate orders to be made in those circumstances. |