457 / 462
GAZETTE
SEPTEMBER1992
Recent Irish Cases
Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer In Law,
Dublin City University.
The following case summaries hove been reprinted from the
Irish Law
Times and Solicitors Journal
with the kind permission of the publishers.
O'Dea v O Briain and Ors High Court 22
October 1991
ADMINISTRATIVE LAW - FAIR PROCEDURES -
WHETHER APPLICABLE TO EXERCISE OF POWER OF
RELIGIOUS SUPERIOR OVER NUN - NUN ALSO EN-
GAGED AS MEMBER OF TEACHING STAFF IN
SCHOOL - BOARD OF MANAGEMENT REQUESTING
TRANSFER OF NUN - WHETHER TRANSFER POWER
VALIDLY EXERCISED - INTERLOCUTORY INJUNC-
TION - WHETHER MANDATORY INJUNCTION
SHOULD BE GRANTED
The plaintiff, a nun who was a member of
the Congregagtion of St Louis, was also a
teacher in a St Louis school. The board of
management of the school communicated
their dissatisfaction with the plaintiff's sick
leave absence and other aspects of her
performance to the plaintiff's religious su-
perior. The board stated that they could
take action against the plaintiff but requested
the superior to transfer the plaintiff to an-
other school in exercise of the religious
superior's powers. The plaintiff's superior
held two meetings with the plaintiff con-
cerning the board of management's dissat-
isfaction. Subsequent to this meeting the
plaintiff was informed that she was to be
transferred to a school in Monaghan. The
plaintiff claimed a mandatory injunction
preventing the transfer from proceeding
pending full consultation with her on the
issue of her transfer. The plaintiff stated on
affidavit that while the dissatisfaction with
her was discussed in her meeting with her
religious superior, no mention was made of
the plaintiff's relocation to another school.
Her superior stated that such discussion
had taken place. On the plaintiff's applica-
tion for an interlocutory mandatory injunc-
tion
HELD
by Murphy J refusing the relief:
(1) while on an interlocutory application it
was not necessary to decide whether the
plaintiff could succeed in her claim, there
was great difficulty for her in sustaining her
action, since the issue of fact as to whether
her transfer was discussed was likely to be
resolved in favour of the plaintiff's religious
superior, and it was unlikely that manda-
tory relief would be granted to restrain an
action which could be remedied merely by
holding an interview; (2) while any action
by the board of management would, as it
had acknowleged, require compl iance with
the rules of natural and constitutional jus-
tice, there was no authority for the proposi-
tion that these rules applied to a decision
made by a religious superior in relation to
his or her community; the decisions of a
religious superior were not necessarily made
to ascertain truth but might also be made to
inculcate humility or to advance the inter-
ests of the religious order, whereas a lay
tribunal was required to ascertain truth and
vindicate rights; and, without expressing a
final view on the matter, the power of a
religious superior appeared to be absolute
or virtually absolute, the vow of obedience
being a converse of that power; (3) it was
not appropriate to grant interlocutory man-
datory relief as there was no guarantee that
this would give the plaintiff the remedy she
sought, namely review of her transfer by
another body, since the court was not capa-
ble of ru I i ng on her competence as a teacher
and this would in any event be intruding on
the rights of others to take the action ojjen
to them.
Campus Oil Ltd v Minister for
Industry and Energy (No.2)
[1983] IR 88
distinguished.
MacGairbhith v Attorney General High
Court 13 November 1991
CONSTITUTION - ACCESS TO COURTS - STAMPING
FEES - WHETHER UNREASONABLE INTERFERENCE
WITH ACCESS TO COURTS - LOCUS STANDI -
WHETHER PLAINTIFF ACTUALLY INHIBITED FROM
GAINING ACCESS TO COURTS - Constitution, Article
40.3
The plaintiff instituted proceedings claim-
ing that his right of access to the courts had
been infringed by the requirement that stamp
duty be paid on legal documents. He also
claimed that access was restricted by the
failure of the State to make available a law
library for lay litigants.
HELD
by O'Hanlon
J dismissing the claim: (1) to resolve the
difficult question raised by the applicant
would require detailed evidence of the
intervention by the State in the work of the
law courts for the purpose of raising rev-
enue, and it would be difficult to establish
that all such interventions involved a breach
of constitutional rights without regard to the
question of whether hardship resulted; and
in the absence of actual evidence, it was not
appropriate to determine the issue; (2) since
it was apparent that the plaintiff had exer-
cised his right of access to the courts on a
number of occasions and there was no
evidence that he had actually been pre-
vented from exercising his right, the ques-
tion of his locus standi to raise the issue was
in doubt, and this was another reason why
the resolution of the matter should be left to
another time.
Per
O'Hanlon J: the frighten-
ing cost of litigation, made up in part by the
heavy stamp duties levied by the State are a
major deterrent to access and may in many
cases actually prevent parties from availing
of rights nominally guaranteed to them
under the Constitution; and a similar claim
to that in the instant case had been upheld
in the United States.
Boddie v Connecticut,
401 US 371 (1971) referred to; (3) while lay
litigants were afforded every opportunity
by judges and court staff to present their
cases as an aspect of the right of access to
the courts, the further provision by the State
of a law library to lay litigants was not an
unenumerated right under the Constitu-
tion.
Trustee Savings Bank Dublin v Maughan
High Court 8 October 1991
CONTRACT - BANKER AND CUSTOMER - CURRENT
ACCOUNT LOAN SUBJECT TO 'CHARGES' AND
'USUAL TERMS AND CONDITIONS' - WHETHER
BANK ENTITLED TO CHARGE COMPOUND INTER-
EST AND TO CAPITALISE OVERDRAFT - INTERPRETA-
TION OF CONTRACT
The defendant entered into an agreement
with the plaintiff bank in 1983, in which the
bank furnished the defendant with a current
account overdraft facility of £5,000. On 11
August 1983, the defendant signed an ap-
plication form which stated that 'charges
may be made on this account, at a scale that
the bank may from time to time decide.' On
23 August, the bank sent the defendant a
letter stating that the overdraft was 'on the
usual terms and conditions including inter-
est repayable on demand.' On that date, the
defendant had already drawn a cheque of
over £4,000 on the account. In September
1983, the defendant obtained a further loan
of £2,000 from the bank. On the defend-
ant's default on the loans, the bank insti-
tuted proceedings claiming it was entitled,
under the terms of the agreement, to com-
pound interest annually and also to charge
a default rate of interest of 6% over its
normal rates for overdrawn current ac-
counts. On the bank's calculations, the
amount due in July 1991 in respect of the
£7,000 loans amounted to £32,906.01.
HELD
by Costello J: (1) the bank was not
entitled, under the 11 August application
form, to compound interest or to charge a
default rate of interest, since the proposal
referred to 'charges' and not to interest, and
the bank was thus entitled to simple interest
only; (2) the letter of 23 August could not be
effective to impose any new terms on the
agreement reached on 11 August, since the
contract had largely been performed on
that date; (3) the loan of 2,000 was subject
to the letter of 23 August, but there was
nothing in that letter which would allow the
bank to compound interest annually or to a
default rate of interest, since the courts lean
against compound interest in the absence
of special agreement; and accordingly the
bank was entitled to a sum of 21,313.14.
Passage in
Paget's Law of Banking,
10th ed,
p.247 approved.
Hourigan v Kelly and Ors High Court 26
April 1991
CRIMINAL LAW - FIREARMS - SHOTGUN LICENCE -
REVOCATION - FAIR PROCEDURES - BASIS FOR
REVOCATION NOT PUT TO LICENCE HOLDER -
FIREARM IN POSSESSION OF GARDAI - Firearms Act
1925, s.5
The applicant, a farmer, had held a shotgun
licence under the 1925 Act. In 1990, he
was involved in an incident with a neigh-
bour. No assault had taken place and no
firearms had been involved, but the Gardai
requested both parties to surrender their
shotguns with a view to their licences being
revoked and both parties complied with
this request. The first respondent revoked
the applicant's licence based in part on a
report of the incident. He also had regard to
436