The Gazette 1972

(8) The matter became dormant, and the defendant

only lodged an appearance in January 1969. The com-

pany delivered a statement of claim in May 1969 but

the defendant delivered his defence more than two

years later, in October 1971.

(9) Meanwhile, on 3rd September 1971, as no defence

had been delivered for more than a year, a notice of

intention to proceed was served by the plaintiff com-

pany. In January 1972 the defendant's solicitor threat-

ened to have the case dismissed for want of prose-

cution, and consequently the plaintiff served a notice

of trial in February 1972.

(10) The defendant seeks to resume a right to picket.

A trade dispute undoubtedly resulted in 1967, at the

time of the Labour Court recommendation, and in fact

continued to exist until the picketing in January 1968.

There appears to be no judicial authority deciding

when a picket ends.

(11) When Kenny J. made the order of 5th February

1968 it was conditional on the defendant not having in

the meantime by his conduct shown that he had brought

the trade dispute to an end. The onus of proving this

clearly rests on the defendant who asserts he has a right

to reinstatement. The defendant, however, has given no

satisfactory explanation as to why he allowed such long

periods to elapse before entering an appearance and

delivering his defence. These unexplained delays are

inconsistent with the maintenance of a trade dispute.

The defendant had been employed elsewhere, and only

took action when he was faced with loss of employment.

It follows that there is no trade dispute at present

subsisting, and that the injunction to restrain picketing

will be made permanent.

[Esso Teoranta v McGowan; Henchy J.; unreported;

23rd June 1972.]

Original summons may be renewed for good reason.

Murnaghan J. had refused to renew a plenary summons

under Order 8, Rule 1, of the Rules of the Superior

Courts 1962. This was a claim for damages for negli-

gence arising out of a collision in Co. Monaghan, on

13th July 1965. On 4th July 1968 a plenary summons

was issued by the local solicitor of the party who sus-

tained injuries against a customs official, but the Chief

State Solicitor had denied liability on behalf of the

official. The solicitor had also been in touch with the

insurance company of the car in which the plaintiff

was a passenger. In 1968-69 the plaintiff made frequent

calls upon the local solicitor, but no progress was made.

Finally the plaintiff put the matter in the hands of a

Dublin solicitor to whom the papers were transferred.

Order 8, Rule 1, states that no original summons

shall be in force for more than twelve months—but

before that time expires, the plaintiff may apply to the

Court to renew the summons. The

ratio decidendi

the case of

Baulk v Irish National Insurance Co.

(1969)

I.R. 66, is the fact that the Statute of Limitations

would defeat any new proceedings which might be

necessitated by the failure to grant the renewal sought

and would thus constitute "other good reason" and

accordingly moved the Court to grant the renewal;

furthermore the defendants had been aware from the

very beginning, of the plaintiffs intention to sue them.

This case is on all fours with Baulk's case. Accordingly

the order of Murnaghan J. was reversed, and the orig-

inal summons was renewed from the date of this judg-

ment." Dissenting "judgment by Fitzgerald J.

[McCooey v Minister for Finance and McGeough;

Supreme Court; O Dalaigh C.J. and Budd J. per the

Chief Justice, Fitzgerald J. dissenting; unreported; 16th

December 1971.]

Conditional order for prohibition against the Special

Criminal Court refused.

Application for an Order of Prohibition against the

Special Criminal Court established by Part 2 of the

Offences against the State Act, 1938, which is provided

for by Article 38, Section 3, of the Constitution. A

proclamation made by the Government in May 1972

brought Part 5 into effect, and an order creating sched-

uled offences was subsequently made.

The applicant was charged in the District Court with

one scheduled offence and with two unscheduled offen-

ces. Under Section 45 of the Offences against the State

Act, 1939, the District Justice, if he received a direction

to that effect from the Attorney-General, had no alter-

native but to send the applicant forward for trial to the

Special Criminal Court, whether the offence was indict-

able or not, which he did. Section 46 makes the same

provisions in respect of non-scheduled offences, pro-

vded the Attorney-General certifies in writing that the

ordinary courts are, in his opinion, inadequate to secure

the effective administration of justice and the preser-

vation of public peace and order. The giving of the

certificate does not involve an adjudication, and is not

an exercise of the judicial power. Furthermore the

applicant's constitutional rights under Article 40 have

not been infringed, in so far as there is an appeal

provided to the Court of Criminal Appeal from the

decision of the Special Criminal Court. It follows that

the existence of the Special Criminal Court is not an

infringement of any constitutional right.

The application for a conditional order of prohibition

was consequently refused.

[State (Bollard) v Special Criminal Court; Kenny J.;

unreported; 20th September 1972.]

Local Authority not liable if Department of Posts and

Telegraphs does not make good the surface of a

road after laying a cable.

Plaintiffs heavy truck involved in accident near

Thomastown, Co. Kilkenny, on 30th January 1967. The

truck was driven at night on a narrow road, and, to

avoid oncoming traffic, the driver was compelled to

pull in on extreme side of the road. The verge gave way

under the weight of the truck, arid the left front wheel

sank to the ground to axle level. The resultant damage

cost the plaintiff £453.75 in repair to the truck and

towage, which he seeks to recover from defendant

Council. Before this, near the spot where the accident

occurred, a trench had been opened near the road by

the Department of Posts and Telegraphs to lay a co-

axial cable. After the cable had been laid, the trench

had been negligently filled in. The work of restoning the

highway had been accomplished by departmental ser-

vants, and not by the County Council, who had only

re-surfaced the road.

In interfering with the road surface, the Department

were relying on their own statutory power. Sections 6,

7, 10, 18 of the Telegraph Act 1863 are fully quoted.

Section 18 states that the Department may with all

convenient speed, complete the work, fill in the ground

257