The Gazette 1973

UNREPORTED IRISH CASES

that the legislation purporting to establish the Cork Local Admiralty Court was repugnant to the Consti- tution, which counsel did not pursue. In reply to this the foreign shipping company applied for prohibition challenging the lawful evidence of the Local Cork Admiralty Court. Judge Neylon contends that the foreign shipping company has no assets within the jurisdiction. The Chief Justice stated that it was quite reasonable in the circumstances that the foreign shipping company should be asked for security for costs, particularly as the pur- pose of the proceedings was to nullify the bail bond, and the order for security would not prevent the ship- ping company from pursuing its appeal. By analogy with the Company's Act provision for "sufficient secu- rity", the security to be fixed on appeals where the appellant is a company which has no assets within the juristiction should be "sufficient". The Chief Justice's personal estimate is £500, but the Master will measure the security if the parties do not agree. [The State (Kinvarra Shipping Co.) v. Judge Neylon and Verolme Dockyard; Supreme Court (O Dalaigh C.J., Fitzgerald and McLoughlin J J . (per the Chief Justice; unreported; 24th July 1972] Criminal law: The definition of "wounding" includes a breach of the whole skin. Appeal from sentence by Judge McGivern in Dublin Circuit Court against eighteen months imprisonment for wounding with intent to cause grievous bodily harm or to maim, disfigure or disable, contrary to Section 18 of the Offences against the Person Act 1861. The appeal was dismissed by the Court of Criminal Appeal and the Attorney-General certified that the following point of law of exceptional importance should be determined by the Supreme Court: Whether or not a wound, for the purposes of the Offences against the Person Act 1861, must be of such a nature as to involve a severance or penetration of the entire rkin. The 1861 Act does not contain a definition of "wounding", but Archbold divides the all-inclusive term "wound" into incised, punctured, lacerated, contused and gunshot. In McLaughlin's case (1838) Lord Coleridge said : "I am inclined to understand that, if it is necessary to consti- tute a wound, that the skin must be broken, it must be the whole r'dn." The question should accordingly be answered in the affirmative, as there is no reason why McLaughlin's case should not be followed. However, the Court, in examining the medical evid- ence in this case, came to the conclusion that this evid- ence established, that the facial injuries were super- ficial, and that the whole skin was not broken. There was accordingly no evidence before the jury of a "wounding" within Section 18 of the 1861 Act. The Court will therefore allow the appeal and quash the conviction. However, the Court will record a conviction for common assault, which ought to have been the proper verdict, and a sentence of twelve months im- prisonment will be substituted. [People (Attorney-General) v. Messitt; unreported; Supreme Court (O Dalaigh C.J., Walsh and Fitz- gerald J J . ) ; 4th December 1972] 120

Injunction granted for breach of copyright in pirating book. Appeal against order of Murnaghan J. made on 22nd October 1969 in an action brought by the plaintiff for breach of copyright, by the defendant publishing in 1966 a new sourcebook entitled New Intermediate History. Murnaghan J. had refused an injunction, but had assessed damages at £251. There is little doubt that the defendant had made complete and long extracts from works published by the plaintiff. The plaintiff publisher bore the expense of publication, and the author was paid a stipulated royalty on copies sold. It was first contended that clause seven of the agree- ment between the plaintiff and the original author, by which that author was allegedly required to assign the copyright in all future publications, was null and void. This contention is unsustainable as the clause referred to a manuscript accepted for publication by the pub- lisher as a book in respect of which no special contract was made out. It was then contended that the sum of £250 which Murnaghan J. had awarded to the plaintiff by way of additional damages for breach of copyright under Section 22 (4) of the Copyright Act 1963 should not have been awarded. Inasmuch as the infringement of copyright was flagrant, entailing as it did the copying of 69 out of 234 pages in the earlier book, and inasmuch as the defendant denied financial benefit from this infringement, effective relief would have been available to the plaintiff in the ordinary way without resort to the additional penal damages under Section 22 (4). Murnaghan J. had declined to grant an injunction because it would in effect require the withdrawal of the whole work of defendants. But an injunction seems to be the most appropriate way to safeguard plaintiff's rights, and damages can be as satisfactorily attended to after an inquiry as to loss. Accordingly there were no circumstances in this case to warrant an award of addi- tional damages. The Supreme Court (O Dalaigh C.J., Walsh and Fitzgerald JJ.) per the Chief Justice then granted an injunction restraining the publication of the infringing material, and directed an inquiry as to damages. [Folens v. O Dubhghaill; Supreme Court; unre- ported; 15th May 1972] Security of costs fixed at £500 on an appeal by foreign shipping company against amount of bail. Appeal by Kinvarra Shipping Ltd. against the refusal of the President to grant an order of prohibition directed to Judge Neylon sitting as the Judge of the Cork Local Admiralty Court; this Court is seized of a claim by Verolme Dockyard for £11,350 against the plaintiff shipping company for work done and supplies furnished to the "Kinvarra". A warrant for the arrest of this vessel, registered in Liberia, was issued on 25th Nov. 1969, and executed by the local Admiralty Marshal. On 5th December 1969 a bail bond for £11,500 was issued by the shipping company and the ship was released, the Verolme Company then moved to have the proceedings in the Local Admiralty Court trans- ferred to the High Court in Dublin, on the ground