The Gazette 1973

UNREPORTED IRISH CASES

A High Court appeal from the Circuit Court is final The question to be determined is whether, once the High Court has given a decision in an appeal from the Circuit Court, does a further appeal lie to the Supreme Court? The plaintiff tenant had a lease of the Gaiety Theatre, Dublin, from the landlord defendant. The plaintiff applied to the Circuit Court for a new tenancy under the Landlord and Tenant Act 1931. This appli- cation was granted, and the order was affirmed by the High Court on appeal. The landlord now seeks an extension of time for appealing from the High Court to the Supreme Court. Section 39 of the Courts of Justice Act 1936 provides that a decision of the High Court on an appeal from the Circuit Court shall be final and conclusive and non- appealable. The appellant has tried to invoke the supreme appellate jurisdiction of the Supreme Court under Art. 34, Section 4 (3) of the Constitution, which be it noted, provides for "such exceptions and subject to such regulations as may be prescribed by law', which exceptions must be found in Irish Statutes passed since 1938, as determined in The State (Browne) v. Feran (1967) I.R. Despite the arguments of the appellant, it is clear that Section 48 (I) (b) of the Courts (Supplemental Provisions) Act 1961, which refers to enactments repealed by this Act does not exclude Section 39 of the Courts of Justice Act 1936, and that therefore Section 39 is brought into force anew by the 1961 Act. It is clear that Section 39 is not excluded by the Constitution because firstly the words "any enactment which has been repealed before the operative date" only applies strictly to statutory repeal. Secondly, as between 1937 and 1961, the only valid Supreme Court that subsisted was the Supreme Court of Saorstat Eireann, and not the Supreme Court established by the present Constitution. It follows that the Supreme Court of Saorstat Eireann could take full cognizance of a Statute of Saorstat Eireann passed before 1938 and notably of Section 39 of the Courts of Justice Act 1936. It follows that the applicant is without any right of appeal to the present Supreme Court and that application for extension of time should consequently be refused. [Eamonn Andrews Productions Ltd. v. Gaiety Theatre Enterprises Ltd.—Supreme Court (Walsh, Henchy and Griffin JJ.) per Henchy J.—unreported— 13 February 1973.] Court off James Street, Dublin, deemed a highway. The plaintiff, Mrs. Connell, claims a right of way, for herself and her customers to enter the side door in Nashs Court to the lounge bar of her licensed premises in James' Street, Dublin. This entry is gained by pass- ing under an archway into the Court and is 30 yards from the street. The public house is held under a 99 year lease granted in 1880. The entrance to defendants' dwelling, No. 130 James's Street, is under the archway, whereas the entrance from Jame's street is a lock-up- shop. The defendant in 1966 erected a large gate at the entrance to the archway, with the object of closing off Nash's Court. The plaintiff objected, and moved for an injunction on the ground that Nash's Court was

a public highway, and that the plaintiff had a right of way in it. The injunction was duly granted by Teevan J. The argument that the installation of a lounge bar constitutes an alteration in the use of the licensed premises is rejected. A right of way can only be created by dedication by the owner at large to the public. Since Bateman v. Bluck (1852), it has been held that a cul-de-sac can be a highway. Expenditure on repairs and lighting are pointers to its being a right of way by dedication, and there is evidence of this. Dixon J., having had evidence that different owners had at different times carried out works of maintenance and repair, had decided on 23 March 1956, in case of White v. Porter, that there is no such evidence here. The Corporation had always treated Nash's Court as a pub- lic highway, and it had been subject to public lighting; there was also a public street sign over Nash's Court. All this warrants the finding that Nash's Court is a public highway. The appeal is accordingly dismissed. [Connell v. Porter—unreported—Supreme Court (O'Dalaigh C.J. Walsh and Budd JJ.) per the Chief Justice—18 December 1972.] Dublin Corporation Decision to Close Market Upheld —Cattle Salesmasters' Appeal Dismissed. The Supreme Court in a reserved judgment held that the Dublin Corporation was within its rights in deciding to no longer maintain the EXiblin Cattle Market. The Court dismissed an appeal brought by a number of cattle salesmasters, who had sought to have that decision nullified. The plaintiffs in the proceedings were the members of the Dublin Cattle Salesmaster's Association. The Dublin Corporation has held a market for the sale of cattle, sheep and pigs on the site since 1863. Delivering the judgment of the court, Mr. Justice Henchy said that for a considerable time it was the premier market in the country for the sale of cattle for export, but in recent times it had fallen into decline. The market had been kept going only with the help of an annual subvention from the rates that had amounted to over £33,000 by 1972. Mr. Justice Henchy said that the losses had con- tinued despite increases in the rates of tolls collected, reductions in the market area, and the employment of fewer people in the running of the market. It was said that one of the main reasons for the decline in the fortunes of the market had been the establishment in recent times of cattle marts through- out the country and, in particular, in nearby centres such as Ashbourne, Maynooth and Baltinglass. The cor- poration was advised that those new outlets were ade- quate to deal with the number of animals now being offered for sale at the Dublin Cattle Market, that the decline in sales in the market was irreversible, and that, having regard to the steadily increasing burden on the Dublin ratepayers of subsidising the market, it would be desirable to close it down. The Corporation, taking those matters into account, and having been advised that it was within its discre- tion to discontinue the market, decided in September, 1971, to close it down from 1 October 1971. That 142