456 / 462
GAZETTE
SEPTEMBER 1992
plaintiff had not exercised an independent
judgment on the correctness of the fee to
senior counsel; and it was to be presumed, in
the absence of contrary evidence, that a brief-
ing solicitor would do his duty conscien-
tiously and would consider the appropriate
level of fee payable; (2) having regard to the
transcript of the trial of the action, the Taxing
Master had not taken into account the actual
complexity of the case even though the ques-
tions put to the jury appeared to focus on the
issues of false imprisonment; (3) the Taxing
Master had erred in concluding that the fee
agreed with the senior counsel was a 'special
fee' within the meaning of 0.99, r.37(18) of
the 1986 Rules, and the briefing solicitor had
been correct to inform the plaintiff in advance
of the potential fee he might be exposed to if
the claim was unsuccessful; (4) the Taxing
Master shou Id have al lowed the pre-trial opi n-
ion under 0.99, r.37(18) having regard to the
complexity of the case.
Gormley v Ireland and Ors High Court 7
March 1991
PRACTICE — DISCOVERY — PRIVILEGE — GOVERN-
MENT DEPARTMENT COMMUNICATIONS — INTERN-
MENT OF PERSON — WHETHER MATERIAL PRIVI-
LEGED — COMMUNICATIONS WITH GARDAI.
The plaintiff, a clerical officer with the De-
partment of Posts and Telegraphs, was in-
terned pursuant to the Offences against the
State (Amendment) Act 1940 between July
1957 and November 1958. On release, he
was requested to sign a declaration to respect
the Constitution of Ireland and not to support
or assist any unlawful organisation. Between
1958 and 1983, the plaintiff declined to sign
this declaration and he was suspended as a
clerical officer. In 1983, he signed the decla-
ration and he was restored to his position. He
instituted proceedings claiming a salary with-
out regard to the interruption arising in his
suspension from duties. In the course of the
action, the defendants claimed privilege from
discovery of certain documents relating to the
plaintiff's internment and also in connection
with communications with the Gardai.
Held
by Murphy J ordering discovery of some
documents: (1) while some of the memo-
randa and letters prepared in connection with
the plaintiff's internment were confidential
and sensitive, they could not be regarded as
involving national security, and it was in the
public interest that they be disclosed for the
purposes of the proceedings; and likewise
documentation concerning the alleged re-
fusal of the plaintiff to sign the declaration
should also be disclosed, except for some
elements which concerned legal advice,
which should be pasted over; (2) certain
communications with the Gardai concerning
internment were highly confidential and while
they might be of some value to the plaintiff
they were in no sense fundamental to it and
discovery would not be ordered of these
documents.
Ambrose v CRegan Supreme Court 20 De-
cember 1991
PRACTICE — EVIDENCE — IRRELEVANT CONSIDERA-
TIONS—ROADTRAFFIC—WHETHER DRIVER OF CAR
HAVING CONSENT OF OWNER — TRIAL JUDGE TAK-
ING IRRELEVANT CONSIDERATIONS INTO ACCOUNT
— Road Traffic Act 1961, s.118.
In 1974, the plaintiff was injured while a
passenger in the defendant's car which, at the
time, was being driven by the defendant's
son. The plaintiff issued proceedings against
the defendant, but the question of compensa-
tion was then addressed in the context of the
Agreement operated by the Motor Insurance
Bureau of Ireland (MIBI). The case ultimately
came before the High Court in 1990 on the
question as to whether the defendant's son
was driving with the defendant's consent
within s.118 of the 1961 Act. In holding that
the defendant's son had not been driving with
her consent, the trial judge (MacKenzie J)
stated that the plaintiff was ultimately entitled
to be compensated for his injuries and that the
case was an attempt by the MIBI to offload
responsibility onto the defendant. On appeal
by the plaintiff
Held
by the Supreme Court
(Finlay CJ, McCarthy and O'Flaherty JJ) al-
lowing the appeal: the trial judge had taken
into account irrelevant considerations in his
judgment; and although the evidence in the
case supported a conclusion one way or the
other, it was appropriate to order a re-trial of
the action bearing in mind that the onus lay
on the defendant todisprove consent.
Buckley
v Musgrave Brook Bond Ltd
11969] IR 440
followed.
Merriman v Dublin Corporation and Dublin
County Council High Court 29 November
1991
TORT — BREACH OF STATUTORY DUTY — FAILURE
TO MAINTAIN SEWER— CONCURRENT WRONGDO-
ERS—WHETHER ESTABLISHED—Public Health (Irl) Act
1878, ss.2, 15
The plaintiff was injured when he fell into an
open gully on the side of a roadway. The
gully, road and adjacent housing had been
built by the Corporation in the Council's
administrative area, but the roadway had not
been taken in charge by the Council at the
time of the accident. A grill on the gully had
been removed at some unknown stage prior
to the plaintiff's accident. The gully consti-
tuted a 'sewer' within the meaning of s.2 of
the 1878 Act.
Held
by Costello finding for the
plaintiff against the Council only: (1) the
Corporation owed no duty of care at common
law to the plaintiff nor was it in breach of
statutory duty to the plaintiff either as sanitary
authority or as a road authority; (2) although
the Council had not taken in charge the road
in question, it was in breach of statutory duty
since the gully constituted a 'sewer' under s.2
of the 1878 Act and it was obliged to keep in
repair all sewers belonging to it under s. 15 of
the 1878 Act.
White v Hindly Local Board
LR
10 QB 219 applied; (3) although the Corpo-
ration had agreed with the Council to main-
tain the road in question until it was taken in
charge, this did not create any statutory obli-
gations towards third parties and so the de-
fendants were not 'concurrent wrongdoers'
under s.11 of the 1961 Act and the Council
was not therefore entitled to an indemnity
from the Corporation; (4) the plaintiff had not
been a candid witness in relation to the extent
of his injuries and having regard to the medi-
cal evidence he was entitled to £10,000 in
damages.
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