The Gazette 1972

UNREPORTED IRISH CASES

THE COURT MUST DECIDE WHETHER MINISTERIAL

DOCUMENTS ARE PRIVILEGED

The facts have already been stated in the Gazette. It will

be recalled that in June, 1970, the Assistant Secretary of the

Department swore an affidavit that he had in his possession the

inspector's report, and refused to produce it on the alleged

ground that production would be contrary to public policy and

detrimental to the public interest; The Minister himself directed

privilege of the document on the same ground. Kenny J.

accepted the Minister's view, and disallowed the claim of

privilege. It is claimed that in a civil action the Executive may

by its own judgment withhold relevant evidence from the

Judiciary.

Walsh, J. emphasised that the administration of justice is

committed solely to the Judiciary by the Constitution. Following

Conway v. Rimmer—

(19681

A.C.. if there is

conflict between

the Executive and the Judiciary which arises during the exercise

of the judicial power, then it is. for the judicial power to

decide which public interest shall prevail. As between the State

and the litigant, it is for the Court to decide which is the

superior interest in the circumstances of each case. If the

security of the State were involved, it is clear that the Courts

would refuse the

order for production, but it is impossible for

for the judicial power in the proper exercise of its functions

to permit any other body to deride for it whether or not the

document will be disclosed. In a last resort, the derision lies

with the Courts as long as they have seisin of the case. As the

documents concerned inay range from the trivial to the vitally

important, some authority must decide which course is least

calculated to injure the public interest. It is self evident that

•this is

a matter which falls into the sphere

the Judicial

power. The Court may be able to determine the matter without

production of the document, but the Court may order

inspection of the document to determine its nature if required.

No documents may be withheld from inspection of the Court

on the ground that they belong to a particular class of docu-

ments. Kenny J.'s acceptance of the Minister's view without

question cannot prevail. In this case the Minister has not

propertly disclosed the grounds for his objection. The decision

in Duncan v. Cammcll Laird (1942) A.C., is inconsistent with

the supremacy of the judicial power under the Constitution and

was first formulated when such a constitutional supremacy did

not exist.

Under the Housing Art 1966. the function of the inspector

is to convey to the Minister a fair and accurate account of

what transpired, but it is no part of his functions to arrive at

any conclusion. The Minister must act judicially and consider

the report within the bounds of Constitutional justice. If the

Minister is influenced by the opinion of the inspector, the

Minister's decision will be open to review, and may be quashed.

The appeal was accordingly allowed unanimously.

Murphy v. Dublin Corporation and Minister for Local Go .'em-

inent—Full Supreme Court per Walsh J.—unreported—14th

July, 1972.

ORDER FOR SPECIFIC PERFORMANCE GRANTED TO

PURCHASER ON SALE OF PREMISES

The case relates to the sale of Cedar Grove. Sttllorgan. for

£8,400 and auctioneers fees. O'KeefFe P. had granted on order

for snecifir performance to the purchaser to be performed by

the defendant vendor. The whole correspondence between the

vendor defendant, the plaintlfTs purchaser, the vendor's

auctioneer (Mr. X ) , the vendor's solicitor ("Mr. Y") and the

purchaser's solicitor ("Mr. Z") was put into evidence. From

this it emerged:—

(1) The defendant approached Mr. X in 1968, and ultima-

tely Mr. Y wrote to Mr. X in November 1968 confirming that

the reserved price would be £8,300 and fes.

(2) In December the plaintiff purchaser called to Mr. X's

office and, having paid a deoosit of £2.100 and £480

auctioneer's fees, agreed to purchase the premises for £8,400.

This purchase was confirmed to Mr. Y on 10th December.

(3) In replying on the 23rd Deccmher. Mr. Y made it clear

that the vendor was not liable for advertising expenses, and

Mr. X agreed to this on 31st December.

(4) Mr. Y wrote »o defendant's solicitor (Mr. Z) at end of

January 1969 complaining about the delay in completing the

matter. Mr. Z then sent the Requisition on Title and draft

assignment for aproval. The requisitions were duly returned

by Mr. Y.

(5) On the 4th March 1969. Mr. Z pointed out to Mr. Y

that Mr. X had negotiated the sale as the agent of the vendor,

and had signed a contract in that capacity.

(6) Mr. Y replied on the 10th March that he had received

instructions from the vendor that the sale was off, as the vendor

had not authorised Mr. X to sign a contract on his behalf, and

Mr. X had no authority to do so. The vendor also alleged that

the purchaser's offer of £8,400 was a cash offer to be com-

pleted within 3 or 4 weeks.

(7) Mr. Z stated that there was a binding contract between

the parties and that he would issue proceedings for specific

performance.

(81 The Vendor had purported to write to his auctioneer,

Mr. X. on the 28th January 1969 that he had received on offer

of £8,750 plus fees from another company. This was correct,

but it was a falsehood to state that he had accepted it. Mr. X

replied on the 31st January that he had sold the property on

vendor's instructions.

(9) In a latter of the 6th March. 1969. from the Vendor to

his solicitor Mr. Y, he stated that he had at no time given <i

power of attorney to anyone to sign on his behalf, and that

Mr. Y shouid have gut in touch with hiin. In reply Mr.

stated that the purchaser rnifjit sue for specific performance.

(10) The Vendor was living in London in the winer of 1968.

and first learnt of the offer of the purchaser, when Mr. Y

phoned him on the 10th December. He stated he was willing

to sell provided the transaction would be completed quickly,

as he was negotiating for the purchase of a house in London

and needed the money He was unable to complete the London

transaction, and opted out in mid-January, 1969.

(11) The vendor tried to contend that the offer of £8,400

did not constitute a sale as he had not received the contract.

(12) CKecffe P. held that the contract that Mr. X entered

into on behalf of the vendor on the 9th January, 1969 was one

which Mr. X had no authority at the time to enter into. How-

ever this contract had eventually been communicated to the

vendor, who had adopted this agreement subject to his being

responsible for advertising fees. Mr. Y clearly recognised this

when he sent the documents of title to Mr. Z. and when Mr.

Z had duly furnished requisitions. This clearly showed that the

original contract signed by Mr. X had been approved and

ratified by the vendor. The Supreme Court held that this was

undoubtedly the case.

(13) The vendor tried to allege that, in his conversation

with his solicitor, Mr. Y, on the 11th December 1968, time was

to be made the essence of the contract, because he was entering

Into negotiations In London to purchase a house. However the

vendor's subsequent conduct does not bear this out; there is

overwhelming evidence of subsequent ratification.

(14) The Supreme Court approved of O'Keeffe P's finding

that there was independently in the several documents emana-

ting from Mr. Y a sufficient memorandum in writing to satisfy

he Statute of Frauds. The President's decree of specific per-

formance of 31st July 1969 was thus affirmed.

(13) The vendor tried to claim damages on the ground that

the purchaser was to pay interest when the delay in completion

had been due to the wilful default of the vendor. If however

the vendor refuses to complete, there ran be no question of any

interest being payable to nhn under those circumstances. How-

ever the question of other damages should be remittel to the

High Court for determination.

(Sheridan v. Higgins—Supreme Court fO*Dalaigh C. J.,

Budd and Fitzgerald JJ)) per The Chief Justice—unreported—

1st April, 1971..)

AUCTIONEER'S CLAIM FOR COMMISSION FAILS

The plaintiff, an auctioneer in Kilcock. was approached by

the defendant to sell 490 acres and a dwelling house in Countv

Meath. The defendant hoped to obtain £20,000. The plaintiff

duly advertised the property and eventually secured an offer

of £17.000 fiom a Mr. Smit, who subsequently increased it to

£18.000; Sml. also agreed to pay

auctioneers fees. The

auctioneer also affirmed to defendant's solicitor that Smit would

pay his fees. Smit had arranged with State and Farm Advisory

Services Ltd to split thc commission payable by him. One must

decide whether this original agreement stood unaltered, or

whether it had been varied. The auctioneer at this stage could