NOTES OF CASES
| Date | 01 May 1960 |
| Published date | 01 May 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00601.x |
NOTES
OF
CASES
TAKING
PROPERTY
THE decision
of
the House
of
Lords
in
the
0.
D.
Cars
case
is
one
of
considerable importance to public authorities and practitioners
in Northern Ireland, and
it
is not without interest to lawyers in
other jurisdictions who are interested in the basic conceptions of
the law. The case was the first opportunity given to the ultimate
court
of
appeal to express an opinion
on
the concluding words
of
section
5
(1)
of
the Government
of
Ireland Act,
1920-“or
take
any property without compensation.” These six words have been
the subject
of
keen dispute in Northern Ireland over the past
twenty years.
Section
5
(1)
of
the Government
of
Ireland Act,
1920,
is mainly
directed to invalidating any law
of
the Parliament
of
Northern
Ireland which directly
or
indirectly interferes with religious equality.
Indeed, all but these six concluding words are
so
clearly referable
to instances
of
discrimination
on
religious grounds that there was
an arguable case
for
giving the concluding words an
ejusdem generis
construction, but this argument was rejected by the
,
Northern
Ireland Court
of
Appeal in
O’Neill
v.
N.
I.
Transport BoardZ
in
1938,
and
in
the
0.
D.
Cars
case the Lords decided that
O’NeiZl’s
case was rightly de~ided.~
Between
1988
and
1959
these words had been considerably dis-
cussed
on
several occasions in connection with Northern Ireland’s
nationalised road transport system.‘ The discussions have centred
on
the words
“
property
”
and
‘‘
take.” There is
no
doubt that
the word “property” covers all normal interests in land and
chattels.
It
is also pretty clear that
it
covers certain types
of
choses in action which are accepted as
‘‘
property
”
on
the empirical
ground that they are the subjects
of
commercial dealings: such are
goodwill,. patents, copyright, stocks and shares, insurance interests
and the like. lndeed, in
Ulster Transport Authority
v.
Brown
and
Sons,5
the Court
of
Appeal in Northern Ireland accepted that good-
will was
‘;
property
”
for
the purpose
of
section
5
(1).
In
Brown’s
1
[1960]
2
W.L.R.
148; [1960] 1
All
E.R.
65.
2
[1938]
N.I.
104.
3
The explanation of the placing
of
these six words at the end of
a
subsection
otherwise devoted to matters religious is to be found in the parliamentary
history
of
the Act. The original Bill submitted to Parliament did not contain
these words. They were added by amendment in the House of Commons,
which thought that
all
kinds of property should be rotected &gainst a taking
without compensation, and t,he words were put at txe end of
8.
5
(1)
for the
want
of
anywhere else to put them.
4
All passenger and freight services in Northern Ireland, with minor exceptions,
were nationalised in
1935.
5
[1953]
N.I.
79.
802
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