The Gazette 1976

bound by agreement - Plaintiff foreigner recovering deposit — (1975 No. 748P - Finlay P. - 1/6/76). Siebel v. Kent. Formation Terms — Price — No price fixed by parties — Provision in agreement that price to be fixed as if circumstances suitable for application of machinery of named statute — No person designated to fix price — Official having power for purposes of statute but refusing to fix price for other purposes —Court having no function to nominate person to ascertain price — No concluded agreement — (1973 No. 236IP - Hamilton J. - 18/6/76). Carr v. Phelan. Implied Term Agency — Plaintiff sole distributing agent for defendant's goods — Implied term that plaintiff would not deal in goods of defendant's competitors — Termination of agency - Implied term that agency terminable by reasonable notice of termination - (1974 No. 3565P - Finlay P. - 8/10/76). Irish Welding Ltd. v. Philips Electrical (Ir.). Implied Term Set off — Implied exclusion of common law right of set off by provisions of building contract which were inconsistent with exercise of that right - (1976 No. 1124 - Finlay P. - 15/11/76). John Sisk A Sons Ltd. V. Lawter Products B.V. Rescission Contract by defendant Building Society to lend plaintiff money in return for mortgage of plaintiffs lands - Express power of defendant to rescind unilaterally before completion of mortgage — Additional term insisted upon by defendant that plaintiff should procure from third parties substantial investments in defendant Society — Investments procured by plaintiff — Subsequent rescission by defendant of contract to lend - Rescission not valid as plaintiff had altered his position — Contract to lend money not enforceable specificially — Assessment of plaintiffs damages to await further evidence — (1974 No. 230P - Finlay P. - 4/3/76). Duggan v. Allied Irish Building Society. Terms Set off — Interim certificate issued to contractor by architect in course of performance of building contract — Failure of employer to pay sum certified — Contractor's motion for summary judgment — Employer claiming right to set off unproved and unquantified counterclaims — Common law right of set-off insconsistent with terms of building contract — Contractor entitled to summary judgment for amount certified — (1976 No. 1124. - Finlay P. - 15/11/76). John Sisk A Son Ltd. v. Lawter Products B.V. CRIMINAL LAW Adjournment

Appeal Court of Criminal Appeal - Function - Findings of fact and inferences therefrom made by court of trial — Treatment of such findings and inferences by court of appeal — The S.S. Gairloch (1899) 2 I.R. 1 applied - (5-8/1976 - C.C.A. - 16/11/76). The People (D.P.P.) v. Madden A Ors. Assault Assault at coiqmon law charged —Trial — Whether charge triable summarily — No offence created by s.42 of Offences Against the Person Act, 1861 - Section 11 of Criminal Justice Act, 1951 — Summary trial authorised - (1976 No. 365 SS - Finlay P. - 29/11/76). The Attorney General (O'Connor) v. O'Reilly. Detention Treatment of detainee - Conduct of police enquiry — Whether ill-treatment would invalidate lawfulness of detention — (1976 No. 439 SS - Finlay P. - 14/12/76). The State (Harrington) v. Commissioner of Garda Síochána. Evidence Admissibility — Statement of suspect in detention —Statement made after expiration of 48 hours of lawful detention - Statement inadmissible - (5-8/1976 - C.C.A. - 16/11/76). The People (D.PB.) v. Madden A Ors. Extradition Corresponding offence — Foreign warrant — Warrant reciting charge of offence contrary to s. 7 of Forgery Act, 1913 — Enactment also in force in Ireland — Description of offence in warrant omitting "with intent to defraud" - Omission of phrase not fatal as obvious that offence under s. 7 of Act of 1913 was charged - (86/75 - Supreme Court - 5/7/76). Ditff v. Sheehan. Extradition Corresponding offence — Question of mixed fact and law - District Justice having power to state Case - (111/76 - Supreme Court - 22/7/76). Murphy v. Bayliss. Extradition Foreign warrant - Validity of warrant presumed "unless the Court sees good reason to the contrary" — Order of District Court for delivery of accused to foreign police for conveyance outside the State — Accused applying for habeas corpus in High Court — Application for leave to adduce evidence of foreign law to extablish that foreign court issued warrant without jurisdiction - Application refused wrongfully — Extradition Act, 1965, s. 55 - (124/75 - Supreme Court - 1/6/76). Gillespie v. The Attorney General. Fisheries Foreign vessel — Entry within fishery limits — Master of foreign sea-fishing boat — Charge that boat entered unlawfully within the exclusive fishery limits of the State contrary to s. 221 of Fisheries Act, 1959 - Charge containing additional statement that person on board boat attempted to fish - Statement inserted because penalty for conviction affected by facts in statement if proved — Conviction in terms of charge — Conviction valid —Section creating one offence only - Penalty increased if offence accompanied by

Order, 1972 (S.I. No. 305) - Industrial Training Act, 1967, s. 21 - (1974 No. 3902P - McMahon J. - 28/5/76). City View Press Ltd. v. An Comhairle Oiliúnta (Training Board).

CONTEMPT OF COURT Punishment

Criminal contempt — Scandalising court — Custody proceedings — Custody of infants contested between parents — Proceedings heard in camera — Names of infants and photographs revealed in biased article by journalist who also attacked competence and integrity of court — Apology — Fine imposed with imprisonment in default — (142/75 —

Supreme Court - 7/7/76). In re McCann A Kennedy.

CONTRACT Breach

Damages - Building contract - New dwelling - No express standards - Proper workmanlike standards implied - Cost of remedial work - Cost fixed upon prices existing at date of first reasonable opportunity to remedy breaches - Damages for owner's inconvenience and lack of enjoyment - (1974 No. 1987P - McMahon J. - 19/5/76). Johnson v. Longleat Properties. Breach Liability — Building contract - Sub contract — Employer nominating sub-contractor to erect roof of factory in accordance with sub- contractor's design - Roof defective Damage resulting from faulty design and poor materials —Contractor liable generally for defective workmanship and materials of sub-contractor — Contractor not liable for damage resulting from faulty design of sub- contractor — Measure of damages recoverable — Cost of remedial work — Cost fixed upon prices existing at date of first reasonable opportunity to remedy defect — (1976 No. 101 SS - McMahon J. - 3/6/76). Norta Wallpapers (Ir.) Ltd., v. John Sisk A Son (Dublin) Ltd. Compromise Breach —Settlement of action for breach of building contract - Failure of defendant to implement settlement - Cause of action for breach of compromise - (1975 No. 4344P - Implied term — Appointment of doctor to private hospital — Hospital financed and managed under charitable trusts of will - Appointment permanent unless terminated by governors if insufficient funds available to enable hospital to continue in operation or unless "it should have to close down for any other reason" —Hospital ceasing as private hospital - Termination of appointment valid as term implied that power to terminate operable upon hospital ceasing to operate under management and control of governors and trustees of the charity - (1964 No. 4 Sp. - Gannon J. - 9/7/76) Browne v. Mulligan. Formation Terms - Knowledge of terms - Foreigner signing agreement without knowledge of existence of important express term and without appreciation of the function of a deposit in a sale of land - Whether foreigner McWilliam J. - 22/6/76. Murphy v. Quality Homes. Discharge

Remand — Jurisdiction —Return for trial — Return to Central Criminal Court — Adjournment and remand of accused in custody — Orders made before arraignment — Court having jurisdiction to make such orders - Habeas Corpus refused - (1976 No. 230 SS - McWilliam J. - 27/8/76). The State (Pender) v. Governor of Mountjoy Prison.