54 / 294
See under
Negligence;
Radburn v Kemp; C. of A.; 5/7/1971.
(Page
49).
See under
Motor Insurance;
Albert v Motor Insurance Bureau;
of L.; 9/7/1971 (page 49).
The hard shoulder of a motorway was held to be part of the
^
e
rge and not part of the carriageway. The Divisional Court
"eld that the appellant, Mr. H. Wallwork, biscuit technician,
ot Cleveleys, near Blackpool, had been wrongly convicted by
fl
olton magistrates of unlawfully causing a motor car to remain
on the carriageway contrary to Regulation 7 of the Motorways
Regulations, 1959, and that he should have been prosecuted
u
nder Regulation 9 for allowing his car to stop or remain at
r
est on the verge.
[Wallwork v Roland; Q.B.D.; 9/11/1971.]
Under the transitional provisions of the Road Traffic (Disquali-
cation) Act, 1970, justices have no power to remove a driving
."qualification unless it was imposed "in consequence of a con-
a t i o n of an offence under Section 110 (b) of the Road Traffic
Ret, 1960" (driving while disqualified), and was a disqualifica-
tion for "an additional period" in consequence of the convic-
ion. The purpose of the 1970 Act was to strike at the cumula-
lve
effect of one order being imposed after another on so-
called compulsive drivers who drove and went on driving when
disqualified.
[Regina v Bradfield Sonning Justices ex parte Holdsworth:
Q.B.D.; 22/11/1971.]
Justices considering mitigating circumstances in deciding whe-
ther not to impose a driving disqualification for speeding under
the totting up procedure in Section 5 (3) of the Road Traffic
Act, 1962, were held by a majority to be wrong to allow the
offending motorist to adduce evidence showing that two pre-
vious speeding offences were trivial.
But the Divisional Court gave leave to appeal to the House of
Lords on a certificate that a point of law of general public
importance was involved in the decision. The point is "whether
evidence of the circumstances attending previous convictions
which bring Section 5 (3) into operation is admissible after
conviction of an instant offence within Section 5 (3) as circum-
stances to which the court may have regard as mitigating the
normal consequences of the instant conviction."
[Woodage v Lambie; Q.B.D.; 21/7/1971.]
Sale of Goods
See under
Contract;
January
Gazette,
p. 7; Worcester Works
Finance Ltd. v Cooder Engineering Co. Ltd.; C. of A.-
20/7/1971.
UNREPORTED IRISH CASES
English divorce valid if the husband and wife
were both domiciled in England at the time.
Husband, bom in 1896, married his first wife Yvonne,
»n St. Marylebone, London, in 1928. They were domi-
in England, and had no children. In March 1956,
.A', husband presented a petition for divorce
a vinculo
the English High Court, on the ground that his first
w
»e had deserted him in March 1953. There was no
a
Ppearance, and the decree of divorce was eventually
m
ade absolute in June 1956. In July 1956, the husband
harried his second wife, Kathleen, a widow, in the
re
gistrar's office in Dublin. Subsequently the husband
Inquired a domicil of choice in Ireland by residing with
A»s second wife there until his death in April 1970. They
Aad no children, but he left a gross estate valued at
^68,000 at the time of his death.
The second wife, Kathleen, has elected to take the
°ne-half share of the estate,which she alleges she is
e
ntitled to, as there were no children, under Section 111
the Succession Act, 1965; this is in lieu of any bene-
,
1
given to her in the will and codicil of her late
u
sband. Whether she is entitled to the share depends
Apon the construction the Court puts on Article 41,
ec
tion 3, Subsection 3, of the Constitution which reads
as
follows : "No person whose marriage has been dis-
°lved under the civil law of any other State, but is a
u
b~isting valid marriage under the law for the time
oeing
in force within the jurisdiction of the government
a
nd parliament established by this Constitution shall be
?
a
pable of contracting a valid marriage within that
J
Un
sdiction during the lifetime of the other party to the
Carriage dissolved."
An 1921, the Courts in Ireland and in England recog-
^ised the validity of a decree of divorce
a vinculo
made
V the Courts of the country where the husband and
were both domiciled. Article 73 of the Constitution
tb
provided that, subiect to the extent to which
.
e
y were not incónsistent therewith, the laws in force
n
the Irish Free State at the date of coming into
Peration of the Constitution, should continue to be of
full force and effect until they were repealed or amended
by enactment of the Oireachtas. It follows that the
Oireachtas had power to pass legislation dissolving a
marriage and to give jurisdiction to the Courts to grant
divorces
a vinculo.
As Kingsmill-Moore, O'Daly and Lavery JJ decided
in
Mayo-Perrott v Mayo-Perrott
(1958, I.R.)—the recog-
nition of orders of divorce made by the Courts of
another country, where the husband and wife had their
domicile, has no logical connection with the power of
the Oireachtas to dissolve a marriage. Thus the restric-
tions imposed on divorce by the Constitution do not
involve a general principle that the Courts should not
recognise orders for the dissolution of a marriage made
by the Courts of another country, when the parties to
the marriage were domiciled in that country at the time
of the Court proceedings. The present Oireachtas has
not legislated in the matter—and so for the time being
the law in force under Article 73 of the Constitution of
1922, and under Article 50 of the present Constitution
is that the Irish Courts do recognise a dissolution of
marriage granted by the Courts of the country where
the parties were domiciled. Even though desertion is
not recognised as a ground for judicial separation under
Irish law. as the husband and first wife were throughout
domiciled in England, the grounds upon which a
divorce
a vinculo
are to be granted should be determined
by English law.
Accordingly the second wife, Kathleen, is deemed
to be the official spouse under the Succession Act, 1965,
and is entitled to the share of her legal right without
giving any notice of election to the first wife, Yvonne.
[Re Haden Caffin, deceased, Bank of Ireland and
Goodbody v Kathleen Caffin and Yvonne Caffin; Kenny
J.; unreported; 22nd December 1971.]
Claim for fraudulent conversion upheld.
Plaintiff, an English barrister, came to live in Ireland,
resided at Kilternan, and had plenty of capital which
51