The Gazette 1973

UNREPORTED IRISH CASES

Injunction granted for breach of copyright in pirating

book.

Appeal against order of Murnaghan J. made on 22nd

October 1969 in an action brought by the plaintiff for

breach of copyright, by the defendant publishing in

1966 a new sourcebook entitled

New

Intermediate

History.

Murnaghan J. had refused an injunction, but had

assessed damages at £251. There is little doubt that the

defendant had made complete and long extracts from

works published by the plaintiff. The plaintiff publisher

bore the expense of publication, and the author was

paid a stipulated royalty on copies sold.

It was first contended that clause seven of the agree-

ment between the plaintiff and the original author, by

which that author was allegedly required to assign the

This contention is unsustainable as the clause referred

to a manuscript accepted for publication by the pub-

lisher as a book in respect of which no special contract

was made out. It was then contended that the sum of

£250 which Murnaghan J. had awarded to the plaintiff

by way of additional damages for breach of copyright

under Section 22 (4) of the Copyright Act 1963 should

not have been awarded. Inasmuch as the infringement

of copyright was flagrant, entailing as it did the copying

of 69 out of 234 pages in the earlier book, and inasmuch

as the defendant denied financial benefit from this

infringement, effective relief would have been available

to the plaintiff in the ordinary way without resort to

the additional penal damages under Section 22 (4).

Murnaghan J. had declined to grant an injunction

because it would in effect require the withdrawal of the

whole work of defendants. But an injunction seems to

be the most appropriate way to safeguard plaintiff's

rights, and damages can be as satisfactorily attended to

after an inquiry as to loss. Accordingly there were no

circumstances in this case to warrant an award of addi-

tional damages. The Supreme Court (O Dalaigh C.J.,

Walsh and Fitzgerald JJ.) per the Chief Justice then

granted an injunction restraining the publication of the

infringing material, and directed an inquiry as to

damages.

[Folens v. O Dubhghaill; Supreme Court; unre-

ported; 15th May 1972]

Security of costs fixed at £500 on an appeal by foreign

shipping company against amount of bail.

Appeal by Kinvarra Shipping Ltd. against the refusal

of the President to grant an order of prohibition directed

to Judge Neylon sitting as the Judge of the Cork Local

Admiralty Court; this Court is seized of a claim by

Verolme Dockyard for £11,350 against the plaintiff

shipping company for work done and supplies furnished

to the "Kinvarra". A warrant for the arrest of this

vessel, registered in Liberia, was issued on 25th Nov.

1969, and executed by the local Admiralty Marshal.

On 5th December 1969 a bail bond for £11,500 was

issued by the shipping company and the ship was

released, the Verolme Company then moved to have

the proceedings in the Local Admiralty Court trans-

ferred to the High Court in Dublin, on the ground

that the legislation purporting to establish the Cork

Local Admiralty Court was repugnant to the Consti-

tution, which counsel did not pursue.

In reply to this the foreign shipping company applied

for prohibition challenging the lawful evidence of the

Local Cork Admiralty Court.

Judge Neylon contends that the foreign shipping

company has no assets within the jurisdiction. The

Chief Justice stated that it was quite reasonable in the

circumstances that the foreign shipping company should

be asked for security for costs, particularly as the pur-

pose of the proceedings was to nullify the bail bond,

and the order for security would not prevent the ship-

ping company from pursuing its appeal. By analogy

with the Company's Act provision for "sufficient secu-

rity", the security to be fixed on appeals where the

appellant is a company which has no assets within the

juristiction should be "sufficient". The Chief Justice's

personal estimate is £500, but the Master will measure

the security if the parties do not agree.

[The State (Kinvarra Shipping Co.) v. Judge Neylon

and Verolme Dockyard; Supreme Court (O Dalaigh

C.J., Fitzgerald and McLoughlin J J . (per the Chief

Justice; unreported; 24th July 1972]

Criminal law: The definition of "wounding" includes

a breach of the whole skin.

Appeal from sentence by Judge McGivern in Dublin

Circuit Court against eighteen months imprisonment for

wounding with intent to cause grievous bodily harm or

to maim, disfigure or disable, contrary to Section 18 of

the Offences against the Person Act 1861. The appeal

was dismissed by the Court of Criminal Appeal and the

Attorney-General certified that the following point of

law of exceptional importance should be determined by

the Supreme Court:

Whether or not a wound, for the

purposes of the Offences against the Person Act 1861,

must be of such a nature as to involve a severance or

penetration of the entire

rkin. The 1861 Act does not

contain a definition of "wounding", but Archbold

divides the all-inclusive term "wound" into incised,

punctured, lacerated, contused and gunshot. In

McLaughlin's

case

(1838) Lord Coleridge said : "I am

inclined to understand that, if it is necessary to consti-

tute a wound, that the skin must be broken, it must be

the whole r'dn." The question should accordingly be

answered in the affirmative, as there is no reason why

McLaughlin's case should not be followed.

However, the Court, in examining the medical evid-

ence in this case, came to the conclusion that this evid-

ence established, that the facial injuries were super-

ficial, and that the whole skin was not broken. There

was accordingly no evidence before the jury of a

"wounding" within Section 18 of the 1861 Act. The

Court will therefore allow the appeal and quash the

conviction. However, the Court will record a conviction

for common assault, which ought to have been the

proper verdict, and a sentence of twelve months im-

prisonment will be substituted.

[People (Attorney-General) v. Messitt; unreported;

Supreme Court (O Dalaigh C.J., Walsh and Fitz-

gerald J J . ) ; 4th December 1972]

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