The malicious injuries legislation was reformed very significantly in the 1980s. Due to economic considerations, it was tightened considerably so that compensation was available in much more limited circumstances than had previously been the case.
Where damage of more than €127 is caused to property unlawfully
- by one of a number of at least three people riotously assembled together, or
- as a result of an act committed maliciously by a person acting for and on behalf of an unlawful organisation, or
- as a result of an act committed maliciously by a person acting on behalf of or in connection with an organisation outside the State that engages in or advocates use of violence in Northern Ireland,
a person who suffers damage is entitled to compensation from the local authority.
The rights do not apply to damage caused
- to a ship or aircraft or anything carried on it, if damage is caused by a substance or device placed in the ship at the time when the ship or aircraft is outside the state or
- by any other act or omission done or made outside the State or by a person who has entered the State in the ship or aircraft on the last voyage, flight made by the ship or aircraft before the damage.
An act is to be taken to be committed maliciously only if
- it is a wrongful act, committed intentionally without just cause or excuse, or
- committed wantonly or
- committed in the course of, whether or not for the purpose of commission of a crime against the property damaged.
The right to compensation does not extend to damage to property which is within any harbour or within one mile beyond the costal boundary of a local authority, or which having been lawfully taken is removed from within such harbour or mile.
The right of compensation is limited to compensation for the actual damage caused. It does not extend to compensation for consequential loss as a result of such damage. It does not in particular cover compensation for loss of the use of property.
Where damage is caused to a building or to property within its curtilage unlawfully in the above circumstances and assets, property of more than €127 is unlawfully taken and the taking or the entry to the building for the purpose of taking is facilitated by such damage, the property damaged may be the subject of compensation by the local authority. Once again, this is limited to the value of the property. Consequential loss is not compensated.
It is not a defence that the damage was caused by a person of unsound mind, a child or a person acting under duress.
A preliminary notice in a prescribed form must be served within 14 days after the damage was caused or the property taken with limited exceptions. A preliminary notice is to give particulars of the time and place at which damage was caused and the property taken. It is to be served on the local authority concerned, and the Garda Síochána for the place where the damage was caused or the property was taken.
Where the property was removed from one place to another it is to be served on the local authority or Garda Síochána stations for the place from which it was removed. There are special rules in relation to harbours and the area of one mile beyond the costal boundary of the local authority.
An application is made to the court for compensation provided the preliminary notice has been filed. The application is brought against the local authority upon whom the preliminary notice is served. There is provision for joinder of the local authority.
The court on application may if satisfied the applicant is entitled to compensation, award compensation. Where there are multiple local authorities affected, the compensation may be apportioned between them.
In determining an application for compensation, the court may reduce compensation if it thinks just and equitable having regard to the general conduct, circumstances of the person who suffered the damage or loss to which the application relates. Regard maybe had to conduct and precautions which might reasonably have been taken to avoid the loss or damage.
Compensation shall not be paid where it is proved to the satisfaction of the court that the person who suffered the damage connived at, assisted or actively facilitated the causing of damage or loss or at or about the time the damage was caused, combined, associated, combined with or was in league with the person by whom the damage was caused.
Compensation may not be awarded in respect of loss which in the opinion of the court is attributable to any neglect or failure on the part of the persons who suffered the damage or loss to take reasonable steps to minimise it.
Compensation may not be awarded to the extent that it has been recovered under any other statutory provision, common law or reparation has otherwise been made by or on behalf of the person who caused the loss.
Loss may not be claimed in respect of loss to
- coins, monies, bank notes, currency.
- personal ornaments kept otherwise than as part of the stock or trade.
Damages may not be awarded for an unauthorised structure under planning legislation.
Applications for compensation are made to the District Court or the Circuit Courts in accordance with the general limits in jurisdiction. In respect of damage caused offshore within the costal boundary of a local authority, the application is brought in the court, District Court or the Circuit Court of the place onshore nearest to place where the damage was caused or from which the property is removed or taken. There are special rules of court applicable to the application.
An appeal lies to the Circuit Court from a decision of the District Court. An appeal lies to decision of the High Court from a decision of the Circuit Court. There are provisions for opinion by way of case stated to the Court of Appeal.
Local authorities may settle claims brought to them at any time. It may lodge monies in court in accordance with the general principles applicable to the lodgements in court. The provisions in respect of costs and penalties applicable in such cases apply.
There is provision from recovery from a successful applicant in certain circumstances. Where compensation is paid, and certain sums are later received which would have been taken into account, the person receiving the sums must repay the amount of compensation awarded or part thereof.
Where civil proceedings are subsequently taken and compensation is recovered or settled, the court may order the part of the damages, awards should be paid into court. It shall direct payment to the local authority of any monies paid into court to reimburse the local authority.
Where in the application to a court by a local authority, the authority is satisfied that it has paid compensation on foot of an award and the person has failed to make a true and full disclosure of all the facts, the court may make an order requiring the person to reimburse the compensation or part thereof together with costs. The sum ordered to be recovered is recoverable by the local authority as a simple contract debt.
Persons are obliged to notify the local authority of receipt of sums by way of compensation. Failure to do so without reasonable cause shall without prejudice to liability is an offence subject to fine up to €625- or six-months imprisonment or both.
Where a property unlawfully taken has been recovered, the local authority is deemed owners of the property and are entitled to dispose of it. Where a compensation has been paid by two local authorities, they are joint owners.
Proceedings may not be taken more than three years after the cause of action accrued. The cause of action accrues on the date of service of the preliminary notice. The notice above may be served by registered post.
A person may on making an application for compensation may apply for a certificate by the appropriate Chief Superintendent for the effect that the damages caused was committed maliciously by a person acting on behalf of or in connection with a prescribed organisation. The certificate is admissible as evidence to that effect. The Superintendent is not obliged to disclose the source of his knowledge and basis for his opinion.
Formerly, extensive compensation was available for criminal injury. This dated back to the middle of the 19th century. In the early years of the State and last years of the union with the United Kingdom, there was specially legislation applied to compensate loss arising from the extensive damage to property arising from civil disturbances in that era.
Formerly, the notice must be given within seven days, although that period could be extended. Most of the applications were made to the District Court. The County Council were the respondents. Where an application was discontinued or was unsuccessful, the costs may be awarded.
A judgment must specify whether it is made with or without cost. It may provide that costs are to be referred for taxation. The County Registrar has the powers of the Taxing Master in costs.
The Grand Jury (Ireland) Act, 1836 limited damage to some classes of property. They were extended by the 1898 Act to all types of property, where the injury was incurred on conviction on indictment under the Malicious Damage Act. The damage was recoverable unless it was a summary offence, which applied to damage below a certain minimum value (historically £5) below the levels.
The application must generally be brought by the owner of the property or personal representative. They may institute or continue proceedings for damage to the property of a deceased owner. Trustees and bailees may recover compensation.
A limited liability company may recover compensation. A mortgagee and an insurance company does not have a sufficient interest, though it may be entitled to a right of subrogation, where it has paid out.
A landlord may not recover compensation for damage which his tenant is bound to repair. The tenant may recover compensation even if the landlord has in fact repaired the damage, unless he is not in possession. He may be entitled to recover where he is under an obligation to the lessor to repair even if his sub-tenant is obliged.
The transferee of registered property may make an application notwithstanding that his application is not completed. An application must be made by joint owner. An application by one joint owner does not carry on behalf of them all.
The applicant must prove his case and prove that a crime has been committed. The claims are decided on the basis of the balance of probabilities. The applicant must prove that there was an injury, prove there was an injury to person, which is unlawfully and maliciously caused.
Malicious in this context means intentional. Cases under older legislation hold that where a property is damaged wrongfully but under a bona fide claim of right, the damage is not malicious and accordingly compensation is not recoverable.
Malice implies that the act is wrongful act done intentionally, without just cause or excuse. It does not require any ill will or spite. An intention to cause damage is presumed if damage is a natural, probable and reasonable consequence of a deliberate act and ought to be foreseen by a reasonable person. This presumption may be rebutted. However, if a person intended limited harm, he will be responsible for greater harm of the same nature or kind, whether or not he actually foresaw the greater harm.
There will rarely be direct evidence of the malice. However, it will be often easy to prove it by circumstances by which the act is unlikely to have been caused by negligence or innocently. Recklessness may be enough to constitute malice.
It is not necessary to establish the identity of the person responsible for the injury. An unknown person may be cited.
Formerly, persons who were incapacitated could not be the subject of a claim as he does not have the requisite intention. This has been changed.
At common law, there was an unlawful assembly if three or more persons assemble for the purpose of committing a crime. There must generally be evidence of force or violence in the commission of the crime or its conduct tending to excite alarm in the mind of a person with reasonable courage.
An unlawful act need not be a crime. A civil wrong may be enough. The court may make an award for such amounts as the person injured ought to receive. Damage means loss. Compensation is paid to the owner or as above trustee or bailee.
In the case of premises, the measure of compensation is the cost of reconstruction less enhanced value established from materials etc.
In the case of a lessee, the amount of compensation is based on the riparian covenant. If there are rights to renewals, this may be taken into account.
Consequential loss is not recoverable. Summarily loss of profits, bank interest and indirect expenses in hiring other materials such as a car during repair are consequential.