The Gazette 1976

GAZETTE

J UNE /J U LY 1976

CONTEMPT OF COURT Writer of article fined £300, and editor of Sunday World fined £600 for falsely imputing to the Court base motives, and for publishing prejudiced particulars of a case heard in camera. On 3th June, 1976, the Sunday World published an article entitled "Tug-of-love children in tennis- style battle". As a result of this article, a motion was introduced to attach the writer, McCann, and the editor, Kennedy, for contempt. The article referred to a Guard- ianship of Infants case, heard in camera. Kenny J. had made a second decision relating to this mat- ter in camera, and there was an appeal pending against this decision in the Supreme Court. The article purported to give details of the sorry story of a wrecked marriage, with highly offensive re- ferences to the father. It published a photograph and the names of the two boys and the mother. It was clearly based on the mother's ac- count of what had happened and what the issues were. The article attacked the handling of such cases by the Court by falsely stating that, instead of the welfare of the child- ren being paramount, money and the lifestyle it could buy was regarded by the Courts as by far the most important consideration. There was an innuendo that justice could not be obtained in Irish Courts. Both McCann and Kennedy have ad- mitted that they were guilty of the gross contempt alleged against them, and have filed affidavits expressing their full apology. It is important to note that free speech and the free expression of opinion must not be used to under- mine public order or morality or the authority of the State. As Lord Rus- sell said in R. v. Gray (1900) 2 Q.,B. 36—"any act done or writing published calculated to bring a Court or a Judge into contempt, or to lower his authority is contempt of Court. Furthermore any act done, or writing published, calculated to obstruct or interfere with the due course of justice or the lawful pro- cess of the Courts is a contempt of Court". The offence committed by the applicants here is one of deliberately scandalising the Court. The offence of scandalising is committed when, as here, a false publication is made which intentionally or recklessly im- putes base motives or improper motives or conduct to the judges in question. Apart from the aspersions cast on the Court, the offenders

rejected. The next question is whether the claims of the debenture holders in relation to the lands on the three Folios rank before the rights of the four Judgment Mortgages. Section 71(4) of the Registration of Title Act 1964 stating that registration of the relevant affidavit will operate to charge the interest of the judgment debtor subject to certain conditions is quoted in full; this had not been contained in the 1891 Act. The two debentures created a specific charge on Folio 9792 and a floating charge over all the other assets of Tracta- sales. The effect of the appointment of a receiver under a Debenture is that there is an equitable assign- ment to the holder of all the pro- perty subject to the floating charge. The equitable assignment effected by the appointment of a receiver was an unregistered right, subject to which Tractasales held the lands on which the debentures were not re- gistered at the time of the registra- tion of the affidavits creating the four Judgment Mortgages. A Judg- ment Mortgagee is not a purchaser for valuable consideration. Conse- quently the question posed must be answered in the affirmative. When the relevant documents are produced to the Registrar of Titles, it will be his duty to annul the entries of the four Judgment Mortgages, without proof of the payment of any sum in respect of any of them. In view of the fact that the exis- tence of the third Folio was only discovered by the defendant on 23rd January 1975, the 18% interest pro- vided will only become payable from that date. Per Henchy J.: The plaintiff was not bound, in order to make good title, to discharge the moneys due on foot of the post-contract Judgment Mortgages. These mortgages took effect subject t o the defendant's equitable estate or interest in the land. They could affect only such beneficial estate or interest as the registered owner then had. That estate or interest could not survive the completion of the sale, and the registration of the defendant as full owner. The defendant could then have them cancelled on the Folios. The appeal will accordingly be allowed, and there will be an order for specific performance of the Con- tract. Tempany v. Hynes — Supreme Court O'Higgins, C.J., Henchy J. and Kenny J.) — Separate judgments by Henchy J. and Kenny J. — unreported — 1st June. 1976.

have then to expose the private sorrows of this family to public gaze and comment, and to prejudice un- fairly the future happiness of these children. If the fullest apologies had not been tendered, a substantial sen- tence of imprisonment would have been imposed upon them. The writer, McCann, is fined £300, and the editor, Kennedy, is fined £600, both payments to be made within 2 days or imprisonment in default. These applicants must pay in full the costs of this motion for attach- ment. Re Motion to Attach McCann and Kennedy for contempt of Court — Supreme Court — (O'Higgim, C.J., and Griffin, J.) per the Chief Justice — unreported — 7th July, 1976. VENDOR AND PURCHASER A stipulation in a written contract of sale that time is of the essence of the contract will be strictly applied, and, in the event of non- completion, due to vendor's default, the purchasers are entitled to rescind the contract and to a return of their deposit. Plaintiffs seek specific performance of a contract for sale of 5th Novem- ber, 1973 relating to premises at Fleming Place in Dublin against the defendant Company, and the defen- dant firm of solicitors, hereinafter called X. X signed the contract in trust on behalf of the purchasers. Throughout X acted for the defen- dant company. The property sold included 3 separate plots—(1) 18, Fleming Place, (2) 17c Fleming Place, and (3) Portion of the the rere of 9 and 11 Upper Baggot Street. The price was £134,840 and a deposit of £23,000 was paid on signing the contract. On the same date, the purchasers entered into two contracts with two subsidiaries of the plaintiffs, namely (1) Manches- ter Chemical Co. Ltd., and (2) Man- chester Chemical Co. (Ireland) Ltd. It was provided that the three con- tracts should be completed at the same time. The closing date was the 30th October, 1974, and there was a special condition of sale stipulat- ing that time was to be of the essence of the contract, and, in the event of non-completion, the vendor would be entitled to rescind the contract without notice, and that then the purchaser's deposit would be forfeited. Premises No. (3), being the rere of 9 and 11 Upper Baggot Street, consisted of coach-houses, and about two thirds of the unfenced ground. The vendors never used this premises, but a Mr. McLaughlin,

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