The Gazette 1976

J UNE /J U LY 1976

GAZETTE

who carried on a light machinery business at the rere of No. 11 did. An acknowledgment was made that the property belonged to the Man- chester Go. in September, 1972. By the summer of 1974, the pur- chasers had difficulty in securing financial credit for development, and were less keen on the transaction. The estate agent called on the ven- dors' solicitors to explain the posi- tion, but they were not co-operative. In September and October, 1974, there was a correspondence, in which the vendor's solicitors con- tinuously reminded the purchasers that time was of the essence of the Contract and the customary inves- tigation of title was proceeded with. During all this time, to the know- ledge of the vendor, Mr. McLaugh- lin continued to use the premises at the rere of 11 Upper Baggot Street. Mr. McLaughlin was told he would have to have everything removed by the end of October, and he agreed; but no active steps were taken to dislodge him. On the day of the closing, the purchaser's agent found Mr. McLaughlin on the premises with no intention of closing. The pur- chasers were now anxious to close as they had secured the necessary finances for the development. When purchasers' solicitors visited the pre- mises, Mr. McLaughlin claimed he had a right to be there, and ordered them off. As the premises were not vacant, the purchasers refused to close the sale and on the following day, 31st October, X, their solicitors, wrote rescinding the contract, and asking for the return of deposit. The vendors considered Mr. Mc- Laughlin a trespasser, and com- promised by paying him £250 in return for possession. The plaintiff's contention that they should have been granted an equitable extension of time in order to eject McLaugh- lin is rejected. The plaintiffs accord- ingly sought specific performance of the contract. As the solicitors for the plaintiffs were merely their agents, the claim against them is dismissed. Following Finkielkraut v. Monohan (1949) 2 All ER 234 and Quad- rangle Developments v. Jenner (1974) 1 All ER 729, Butler J. held that the plaintiffs were not entitled to specific performance. Accordingly the purchasers were entitled to re- scind the contract, and are also en- titled to an order for the return of their deposit.

NATURAL JUSTICE Discharge of soldier from Army quashed, as he was not given an opportunity to defend himself. Application to make absolute a Conditional Order of Certiorari to quash an order whereby the plain- tiff was discharged from the Army. The Defence Act 1954 and subse- quent Regulations prescribe the conditions for Membership of the Defence Forces. A person enlisting in the Army is entitled to serve for the period he enlisted unless his dis- charge is directed for prescribed reasons, which are stated in Para- graph 58 of the Defence Forces Regulations. The plaintiff had joined the Army in July, 1974, and received an advancement to Private Three Star in April, 1975. Up to the end of May, 1975, the plaintiff's service as a soldier was uneventful and suc- cessful, and he was then paid £39.00 per week. At the end of May, 1975, the plaintiff's platoon was on a training exercise in the Glen of Imaal, and some incidents occurred which were alleged to affect morale and discip- line. On 25th May, a group of soldiers including the plaintiff, re- fused to obey the order of a Ser- geant, and another of the group, to show his defiance, advanced on the Sergeant as if to assault him, and at the last moment brushed past him. When the other soldier was charged before Lt. Colonel White with assaulting the Sergeant, the plaintiff gave evidence that this soldier had accidentally bumped into the Sergeant. Accordingly the assault charge was dropped, and one of insubordination substituted. On 17th June, the plaintiff was ordered to undergo a medical check- up prior to discharge, and was sent on leave for two weeks prior to dis- charge on 19th June. Meanwhile on 10th June, Lt. Colonel White had directed the plaintiff's dis- charge, and he was finally dis- charged on 3rd July. On 19th June, the plaintiff tried to see Commdt. Ryan about the discharge; the officer kept him waiting for two hours, but declined to see him. Generally speaking, the regulations provide that a discharge may only be made on the ground of miscon- duct, and they imply that such offence shall be investigated and proved. The reason given in the official form of discharge was merely that his services were no longer required. Broadly this clause is intended to

cover cases where the soldier's con- duct on the whole was unsatisfac- tory, but where it is not possible to bring a specific charge against him. Colonel Quinn in an affidavit stated that, having read the personal file of the plaintiff, he formed the opinion without further ado that the plaintiff should be discharged from the Army, and so directed. The relevant matters appearing on the plaintiff's personal file are care- fully not revealed nor exhibited. It is quite clear that at no time was the plaintiff given any notice of the intention of his superior to dis- charge him, nor had he any notice of any charges against him. How- ever the plaintiff lost his employ- ment, and, in view of the discharge, it was difficult for him to obtain alternative employment. The main reason that the plain- tiff obtained the Conditional Order was that he had received no notice of his intended discharge, or of any charge against him, and that this constituted a denial of Natural and Constitutional Justice and was a serious infringement of his constitu- tional rights. The High Court has jurisdiction to investigate and determine as a matter of law whether any act done in purported reliance of the military code is within its jurisdiction. The Court is not satisfied that, on the facts, the decision to discharge the prosecutor was within the Regula- tions. If a discharge is clearly desir- able in the interests of the service, if allegations are founded on specific acts, the soldier should be given an opportunity of giving an explana- tion. It is questionable whether the military authorities, in order to avoid proving misconduct had the right to state that his conduct was unsatisfactory. As the reasons for the discharge must be clearly desir- able, this obviously includes a proper investigation. As regards the constitutional issue, it is clear that the rights guaranteed protecton by Art. 40(3) of the Constitution include the right to continue to earn a living, and to a satisfactory discharge from the Army. There is no doubt that, in accordance with Constitutional and Natural Justice the principle of fair- ness must be observed. In this case the plaintiff should have been in- formed of the grounds on which the authorities formed the opinion that his discharge was desirable—Prin- ciple of natural justice stated in Ridge v. Baldwin (1964) A.C. 40, and affirmed by the Supreme Court in Glover v. B.L.N. Ltd. (1973) I.R. 388—followed, as O'Dalaigh C.J. 23

United Yeast Go. v. Cameo Invest- ments Ltd. and others — Butler, J. — unreported — 17th December, 1975.