The Gazette 1992

GAZETTE

MARCH 1992

Recent Irish Cases

Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,

Dublin City University.

The following case summaries have been reprinted from the

Irish Law

Times and Solicitors Journal

with the kind permission of the publishers.

Mapp v Gilhooley Supreme Court 23 April

1991

PRACTICE - EVIDENCE - UNSWORN EVIDENCE OF

CHILD - WHETHER ADMISSIBLE IN CIVIL TRIAL -

TRIAL JUDGE SATISFIEDTHATCHILD UNDERSTOOD

IMPORTANCE OF TELLING TRUTH - WHETHER MIS-

TRIAL RESULTING - ACQUIESCENCE OF PARTIES TO

TRIAL PROCEDURE - WHETHER ESTOPPEL ARISES -

Constitution, Article 40.1, 40.3

The plaintiff, who was 8 years of age at the

date of the trial of his action, instituted

proceedings in the High Court claiming

damages arising from personal injuries sus-

tained while a pupil in the school managed

by the defendant. When he was called to

give evidence, he was asked by the trial

judge whether he understood the oath, and

the plaintiff stated he did not. The trial

judge was asked by the plaintiff's counsel

to hear his evidence and to judge it as best

he could. The trial judge told the plaintiff

that it was very important to tell the truth

and then proceeded to hear the plaintiff's

account of the incident in the school. The

trial judge also heard the sworn evidence

of teachers who had been supervising the

plaintiff, their account of the incident in

question being different from the plaintiff.

The trial judge concluded that he preferred

the plaintiff's account, found that the de-

fendant had been negligent and awarded

the plaintiff £8,000 damages. On appeal,

the defendant argued only that the proce-

dure adopted by the trial judge in hearing

the plaintiff's unsworn evidence amounted

to a mistrial.

HELD

by the Supreme Court

(Finlay CJ, McCarthy and O'Flaherty JJ)

allowing the appeal and ordering a retrial

on liability: (1) a fundamental principle of

the common law was that

viva voce

evi-

dence in civil or criminal trials must be

given on oath or affirmation, subject to

certain exceptions contained in legislation

applicable to criminal trials only; since the

purpose of the rule is that such evidence

shall be true by the provision of a moral or

religious and legal sanction against delib-

erate untruth, such a rule cannot be re-

garded as inconsistent with the Constitu-

tion, either on the basis that it is discrimina-

tory or as being an impermissible restric-

tion on the right of access to the courts; (2)

the practice by which documentary evi-

dence can be accepted as proof of mátters

by agreement of the parties does not consti-

tute an exception to the rule of evidence by

oath or affirmation, since such agreement

is a method of avoiding the giving of evi-

dence; (3) the inevitable consequence of

acting on unsworn

viva voce

evidence in a

civil case is that a mistrial has occurred;

and a party could only be prevented from

seeking to argue a mistrial in such a case on

the basis of estoppel by acquiescence or on

the ground that to allow an appeal would

amount to a virtual fraud or an abuse of the

process of the courts; (4) while the defen-

dant had appeared to accept the validity of

the plaintiff's unsworn account at the trial

of the action, the Court would order a

retrial on liability in the Circuit Court hav-

ing regard to the fundamental nature of the

rule that evidence be given on oath, since

the plaintiff's interests could be preserved

by an award of interest under s.22 of the

Courts Act 1981 if he were ultimately to be

successful.

Per curiam

: where it appears

that a child does not understand the

menaing of an oath, the proper course is to

adjourn the trial so that the child may be

adequately instructed on its meaning.

In re McCairns (PMPA) pic (In Liquida-

tion) Supreme Court 18 July 1991

COMPANY - WINDING UP - SECURED CREDITOR -

SALE OF SECURED PROPERTY BY LIQUIDATOR WITH

CONSENT OF SECURED CREDITOR - AGREEMENT

BY LIQUIDATOR TO DISCHARGE SECURED CREDI-

TOR IN FULL FROM PROCEEDS - WHETHER SUBJECT

TO PAYMENT OF PROPORTION OF EXAMINER'S

FEES - ESTOPPEL - WHETHER INTEREST PAYABLE ON

DEBT AFTER WINDING UP - Supreme Court and High

Court (Fees) Order 1986 - Companies Act 1963, s.284

The company was put into liquidation in

1987. Hill Samuel & Co (Irl) Ltd (the Bank)

was a secured creditor in respect of a

substantial site. The Bank agreed with the

liquidator to the sale of the site. On depos-

iting the deeds of the site with the liquida-

tor, the Bank stated in writing that its con-

sent was subject to full discharge by the

liquidator of the sum due under its security

together with interest up to payment. The

liquidator agreed, in writing, that this was

the basis of the consent to the sale. On

completion of the sale, the I iqu idator sought

to deduct from the amount payable to the

Bank a portion of the costs of the Examiner

incurred under the 1986 Fees Order. There

was also dispute as to whether interest was

payable on the secured amount. In the

High Court, Costello J

HELD

that the rel-

evant Examiner's costs were correctly de-

ductible and that no interest was payable

after the commencement of the winding

up. On appeal by the Bank

HELD

by the

Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ) allow-

ing the appeal: (1) in view of the express

agreement between the liquidator and the

Bank at the time of the consent to the sale

of the site, which was enforceable notwith-

standing the failure at that time to advert to

the question of fees, the liquidator was

precluded from arguing that the Bank should

pay a portion of the Examiner's fees in-

curred; (2) assuming that Court approval

for such agreement would have been re-

quired, the liquidator could not now make

a case on that point since no such applica-

tion for approval had been made to the

High Court; (3) where a creditor chooses

not to bring the property over which it has

an interest into the winding up, as the Bank

did in the instant case, then it would appear

logical that the creditor is entitled to rely on

the terms on which it granted the security,

including the claim to interest, so that the

liquidator's claim is limited to the equity of

redemption of the property; (4) the Bank

was therefore entitled to claim interest after

the date of the winding up and the trial

judge had thus erred in deciding that s.284

of the 1963 Act had incorporated the rule

in bankruptcy which would exclude such

an award of interest.

In re Humber Iron-

works and Shipbuilders

Co (1869) LR 4 Ch

App 643 not approved.

In re Egan Electric

Co Ltd

[1987] IR 398 overruled.

Cox v Ireland and Ors Supreme Court 11

July 1991

CONSTITUTION - PERSONAL RIGHTS - PROPERTY

RIGHTS - CONVICTION IN SPECIAL CRIMINAL COURT

- FORFEITURE OF AND DISQUALIFICATION FROM

EMPLOYMENT BY STATUTORY BODY OR ONE

FUNDED BY THE OIREACHTAS - WHETHER STATE

ENTITLED TO ENACT FORFEITURE LAWS TO MAIN-

TAIN ITS AUTHORITY - WHETHER PARTICULAR LAW

IMPERMISSIBLY WIDE IN SCOPE - WHETHER CON-

STITUTING FAILURE TO PROTECT CONSTITUTIONAL

RIGHTS AS FAR AS PRACTICABLE - Constitution, Arti-

cle 40.3 - Offences against the State Act 1939, s.34

The plaintiff, a qualified vocational teacher,

pleaded guilty in the Special Criminal Court

to certain firearms offences and was sen-

tenced to two years' imprisonment. While

serving his term of imprisonment, his posi-

tion was filled on a temporary basis. On his

release, he was informed that by virtue of

s.34 of the 1939 Act, his teaching position

had been forfeited and that he was dis-

qualified from holding the position for a

period of seven years. The plaintiff insti-

tuted proceedings claiming that s.34 of the

1939 Act was in breach of the Constitution.

In the High Court, Barr J granted the decla-

ration sought (High Court, 2 October 1990)

(1991) 9 ILT Digest 170. On appeal by the

defendants

HELD

by the Supreme Court

(Finlay CJ, Hederman, McCarthy,

O'Flaherty and Egan JJ) dismissing the ap-

peal : (1) s.34 of the 1939 Act constituted an

attack and major inroad on the

unenumerated right of the person involved

to earn a living and also on certain property

rights of that person protected by the Con-

stitution, such as the right to a pension or

the right to the advantages of a subsisting

contract of employment; (2) the State was

entitled, for the protection of public peace

and order and to maintain its own stability,

to provide by law for far-reaching penalties

to deter major crimes threatening the State,

and to ensure that persons who commit

such crimes are not involved in carrying

out the functions of State, but such laws

must also protect the constitutional rights

of the citizen; (3) since s.34 of the 1939 Act

was mandatory in terms and since forfei-

ture followed a conviction in the Special

Criminal Court without any reference to