The Gazette 1973

The Corporation of Dun Laoghaire v. Alliance and Dublin Consumers' Gas Company (6 Jan. 1972) The following is the judgment in the case in full: In this case a Fire Precautions Notice pursuant to Section 7(2)(b) Fire Brigades Act 1940 was served on the Defendants as Proprietors of the Gas Showrooms, Upper George's Street, Dun Laoghaire. The Notice, which was served on the 14th May, 1971, set out that the Defendant Company were Proprietors of a potentially dangerous building as far as fire hazards were concerned and it required the Defendants to stop using part of the first floor known as the Gas Company Theatre unless or until certain requirements laid down in the Notice were met. The Notice contained a State- ment at the end that the Proprietors could appeal within fourteen days or service to the District Court on any of the grounds provided by Statute and there was also another reference in the body of the Notice to this right of appeal. The Defendants did not appeal within the time specified but at a later stage brought an application for extension of time to appeal before the President of the District Court who refused the Appli- cation. The complainants now allege that the require- ments of the Notice were not complied with and a Summons issued on the 12th October, 1971 alleging that the Notice : (i) was contravened; (ii) a contravention of the Notice was caused; (iii) a contravention was permitted, contrary to Section 7(4) of the Fire Brigades Act, 1940. The Chief Fire Officer of the Complainants visited the Theatre on two occasions when a play was being staged and gave evidence that the Fire Regulations had not been complied with and the Defendants did not challenge this evidence. Evidence of ownership of the premises was given by Mr. O'Brien, the Secretary of the Gas Company, who was subpoenaed by the Com- plainants. In cross-examination Mr. O'Brien stated that the premises had been let under a Quarterly Agree- ment to a Theatre Group from 29th September, 1971 and prior to that it was let on a weekly tenancy. Neither agreement was produced in evidence nor were their terms disclosed in Court. The Defendants did not call any evidence and Mr. Humphries on their behalf argued that it was not established that they were Proprietors, that there were different Proprietors of different parts and that Pro- prietor means occupier. He submitted that the wrong person was before the Court and he relied on Section 7 (Sub-Section 1) of the Act which states that where different persons are the Proprietors of different parts of a building each such part of a building shall for the purposes of the Section be deemed to be the Pro- prietor of a building and he quoted the case of Devlin v. Conlon reported at (1920) 2 I.R., p. 179. Mr. Smyth for Complainants in reply stated that there was no provision in the Act whereby a person could disclaim proprietorship and that Section 7 (iii) (d) set out the grounds of Appeal. He also relied on the fact that as the Defendants had not availed of their right of appeal under the Act they were estopped from denying that they were the Proprietors and quoted the Scottish case of Magistrates of Stornoway v. McDonald reported in the Scots Law Times Reports of 1971 at f). 1954. In that case the Court of Session on Appeal held that the Proprietor of a yard who had not availed of a right of Appeal against a Notice requiring him to pay a contribution towards the levelling of a private 90

nant procedure. It is surprising that this Court should be asked to hold, as a matter of law that it is necessarily defamatory to say of an Irish citizen, that he assisted in the bringing to justice in another country of fellow countrymen who broke the laws of that country, and were tried and convicted according to law. This Court is bound to uphold the rule of law and it is not defama- tory to suggest that ordinary right-thinking people could not condemn such militant activitiés abroad on the ground of disgraceful conduct. The statement would have been defamatory if it had been alleged that the Secretary of the Department of Justice used information which came to his knowledge officially without the sanction of the Minister, but this was not alleged. The fact that in this case the allegation was false does not make it defamatory. No objection was taken to the Judge's charge at the trial. The Judge did not encour- age the jury to find that the words were not defamatory, and this ground fails. The appeal should accordingly be dismissed. Mr. Justice Fitzgerald, dissenting, said that it ap- peared to him that the words complained of were clearly a libel. The word "felon-setter" which was admitted to be untrue, was equivalent to calling the plaintiff a traitor. The defence of privilege cannot in any event be sustained. In his view the case should be re-tried on the issue of damages only, as a gross injustice had been done to the plaintiff. Mr. Justice McLoughlin, dissenting, said that the impression conveyed to him was that the publication was so clearly defamatory of the plaintiff that it was beyond all argument. The expression "felon-setter" is clearly vituperative and reviling, and clearly means that the plaintiff had acted as a British police spy and informer which, though totally untrue, has a peculiarly nauseating effect in Irish life. Undoubtedly the publi- cation is defamatory of a person if it injures his good reputation in the minds of right-thinking persons, who do not approve of the acts of militant republicans in England, yet would regard the plaintiff with contempt if they believed he had gone out of his way to supply information to the British police so as to have such persons jailed in England. In his view there should be a new trial on the question of damages. The appeal was accordingly dismissed. [Berry v. Irish Times Ltd.; Full Supreme Court; unreported; 31 July 1972] Two summonses under Section 7 of the Fire Brigades Act, 1940, were brought by the Corporation of Dun Laoghaire, the Sanitary Authority for the Borough of Dun Laoghaire against the Alliance and Dublin Con- sumers' Gas Company, alleging that on the 21st September 1971 and on the 30th September 1971 at Upper George's Street, Dun Laoghaire, within the Borough of Dun Laoghaire in the Court Area and District aforesaid, the Defendants being the Proprietor of a building at Upper George's Street, Dun Laoghaire, in respect of which a Fire Precautions Notice is in force, did : Contravene, cause a contravention, or per- mit a contravention of the said Notice, contrary to Section 7 (4) of the Fire Brigade Act, 1940. The Justice, who heard the case, was District Justice Delap. He gave his decision on the 6th January 1972. Premises used as theatre must comply with prescribed notice under Fire Brigade Act, 1940.