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GAZETTE
JANUARY/FEBRUARY 1990
THE NAME OF THE STATE
Considerable confusion arises from
time to time about the precise
name of this State. In
Ellis -v-
Assistant Commissioner O'Dea and
District Justice Shields
(The Irish
Times Law Report, January 8,
1990, Supreme Court) Mr. Justice
Walsh referred to what appeared to
him to be the conscious and delib-
erate practice of incorrectly setting
out the name of the State in extra-
dition warrants. Mr. Justice Walsh
stated that in the English language
the name of the State was
"Ireland" as prescribed by Article
4 of the Constitution; the
Republic
of Ireland Act, 1948
did not purport
to change the name of the State
nor could it have done so and a
constitutional referendum would be
required to effect any change in
name. Mr. Justice Walsh con-
sidered that if the courts of other
countries seeking the assistance of
the courts in this jurisdiction were
unwilling to give the State its con-
stitutionally correct and internat-
ionally recognised name, then in his
view warrants from such countries
should be returned to the request-
ing state until they have been
rectified.
Mr. Justice McCarthy in
Ellis
endorsed the views expressed by
Mr. Justice Walsh as to the use of
the correct name of the State in
documents emanating from courts
in other countries which seek the
assistance of the courts in this jur-
isdiction. He considered that in
future the courts should decline to
sanction any further such refusal to
recognise Article 4 of the Con-
stitution and that if this resulted in
a warrant not being endorsed or
enforced in the State, the problem
would not have been created in this
jurisdiction.
The Chief Justice, Mr. Justice
Finlay, agreed that it was most
undesirable that the name of the
State should be incorrectly set out
in the warrants at issue but he
preferred to reserve the question of
whether such a misnomer would
constitute good grounds for refus-
ing to make an order for the
delivery of the person whose extra-
dition is sought.
Mr. Justice Walsh in a Foreword
to William Binchy's
Irish Conflicts
of Law
(Dublin, 1988) also dealt
with this theme. He stated that the
name which Irish law attributes to
this State was "Ireland" and was
so acknowledged by a com-
munique from 10 Downing Street
in 1937. He continued:
"Regrettably some of our semi-
State bodies seem to be infected
with a similar confusion [as the
English courts]. There is only one
State in the world named
"Ireland" and reference in con-
tracts to the applicable law as
"the law of the Republic of
Ireland" or "the law of the Irish
Republic" are wrong. Whatever
justification may exist for English
confusion there is none whatso-
ever for Irish ignorance. Our
semi-State bodies and their legal
advisers might at least honour
the Golden Jubilee of the Con-
stitution of Ireland by learning
the correct name of the State
upon which they depend".
It behoves lawyers in Ireland and
elsewhere to have regard to these
dicta when preparing legal docu-
ments.
INCREASE IN COURT FEES
The Minister for Justice increased
certain Court fees with effect from
January 1, 1990. These fees are
specified in
District Court (Fees)
Order, 1989
(S.I. No. 343 of 1989)
(Stationery Office; Price: 90p
Postage: 32p),
Circuit Court (Fees)
Order, 1989,
(S.I. No. 342 of 1989),
(Stationery Office; Price: 70p
Postage: 32p and the
Supreme
Court and High Court (Fees) Order,
1989
(S.I. NO. 341 of 1989)
(Stationery Office; Price: £2.20
Postage: 63p)
The President of the Law Society,
Mr. Ernest Margetson, in a press
release on January 11, 1990,
strongly attacked the increase in
fees. Mr. Margetson stated that
recent increases in stamp duty
imposed from 1 January 1990 on
District Court documents make it
prohibitively expensive for mem-
bers of the public to pursue modest
claims such as the recovery of
small debts, redress for defective
goods, unsatisfactory holidays or
minor road accidents.
Mr. Margetson stated that the
increase in stamp duty in the
District Court on civil processes
have been by as much as 200%
and come at a time when the
efficiency of the legal process
through the District Courts has
been significantly eroded by the
embargo of staff recruitment. The
increases have also been imposed
against a background in which the
District Court Office had previously
been declared to be self financing.
The increase in stamp duties will
have the effect, for example, of
increasing from £10.50 to £25.00
the preliminary court cost of taking
the necessary legal steps to en-
force the collection of an unpaid
debt.
Demanding that the increases be
immediately withdrawn, Mr.
Margetson said "this increase
effectively constitutes a denial of
the right of access to the District
Courts for people of modest means
with claims which in money terms
may not be great but which to
them are very important. In effect,
the increases withdraw a right of
redress for many with very genuine
injuries and grievances."
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