The Gazette 1994

GAZETTE

JULY 1994

reasonably be expected to have gleaned

such knowledge from the plaintiff's in-

structions. (3) The plaintiff's solicitor ac-

quired such knowledge that the plaintiff's

injury might have been caused by a design

defect in the hinge mechanism of the van

door not earlier than 18 January 1989

when the engineer's report was delivered

to him. (4) As to whether the plaintiff's

solicitor ought to have acquired such

knowledge earlier than 18 January 1989,

a general rule that an engineer's report

should be obtained before the delivery of

the statement of c I a i m i n every case wou I d

add quite unnecessarily to the costs in

very many cases if not the majority of

cases because the majority of cases are

settled at a relatively early stage of the

proceedings. (5) It was reasonable for the

plaintiff's solicitor not to request an in-

spection of the van and a report thereon by

an engineer until requested to do so by

senior counsel. Thereafter, the plaintiff's

solicitor took all reasonable steps to ar-

range an inspection of the van by a com-

petent engineer and to obtain a report

from such engineer. Nor was there any

fault on the solicitor's part in that the

report did not come to hand before 18

January 1989 or on the engineer's part

since after his inspection he kept a lookout

for similar type vans as a result of which he

found a later model with a variation in

hingemechanism which he photographed.

Reported at [1994] 1 ILRM 115

Aine Clancy Wadda and Nadia Clancy

Wadda (suing by her Mother and Next

Friend Aine Clancy Wadda) v Ireland and

the Attorney General and Mohamed

Wadda (Notice Party):

High Court (Keane

J) 6 July 1993

Constitution - Infant - Child abduction -

Constitutionality of child abduction legis-

lation - Wrongful removal from jurisdic-

tion of child - Whether personal rights of

parent and child vindicated - Whether

access to the jurisdiction of the Irish courts

ousted - Child Abduction and Enforce-

ment of Custody Orders Act 1991, sec-

tions

6(7), 7 -

Guardianship of Infants Act

1964, section 3 - Convention on the Civil

Aspects of International Child Abduction

1980, articles 1, 3, 4, 12, 13, 20- Euro-

pean Convention on Human Rights and

Fundamental Freedoms 1951 - Constitu-

tion of Ireland 1937, Articles 29.3, 34.1,

40.3,40.3.1°, 41.1., 42.1, 44

Facts

The first named plaintiff, an Irish

citizen, married the notice party, a Moroc-

can citizen, in February 1989. They had

one child, the second named plaintiff. The

three parties were at all material times

habitually resident in the United King-

dom. The wife removed the child to Ire-

land as a result of marital difficulties and

instituted proceedings to be appointed

sole guardian of the child and for custody

of the child under the Guardianship of

Infants Act 1964. The husband brought an

application for an order returning the child

to the United Kingdom under the Child

Abduction and Enforcement of Custody

Orders Act 1991. The proceedings under

the Act of 1964 were stayed pending the

outcome of the claim under the Act of

1991. Morris J found that the husband had

established that he was entitled to an

order under the provisions of the Act of

1991 returning the child to the United

Kingdom. However, he granted a stay on

the order to allow the wife institute pro-

ceedings seeking a declaration that the

relevant provisions of the Act of 1991

(which gives effect to the Convention on

the Civil Aspects of International Child

Abduction 1980) were inconsistent with

the Constitution. The wife instituted such

proceedings. The plaintiffs submitted that

the provisions of the Act of 1991 are

invalid in that it fails to protect the rights of

the child in depriving her of an adjudica-

tion by the Irish court under the Act of

1964 as regards custody and welfare. It

was also contended that the Act of 1991

deprives the plaintiffs of their right of

access to the Irish courts and fails to pro-

tect the rights of the family as the primary

and natural unit of society.

Held

by Keane ) in dismissing the plain-

tiffs' claim: (1) The personal rights of chil-

dren under Article 40.3.1 ° of the Constitu-

tion are fully protected and vindicated by

the provisions of the Convention on the

Civil Aspects of International Child Ab-

duction as implemented by the Act of

1991. (2) Article 20 of the convention, if

invoked by a party to proceedings under

the convention, gives protection to the

constitutional rights of the children con-

cerned. (3) The Oireachtas was entitled to

give effect in domestic law to a conven-

tion which conferred jurisdiction in cases

with an international dimension to foreign

courts with the object of protecting the

interests of children in this and other coun-

tries and it is in accordance with the aims

of the Constitution as stated in the Pream-

ble. (4) The convention does not violate

Articles 41.1 and 42.1 in denying the first

named plaintiff her right as a parent to

invoke the protection of the Irish courts in

respect of the welfare of her child. The

provisions of articles 1 3 and 20 of the

convention ensure that were the constitu-

tional rights of parents and children en-

dangered the rights would be protected by

a refusal to return the children.

Reported at [1994] 1 ILRM 126

Mary O'Keeffe v Brian Russell and Oth-

ers:

Supreme Court (Finlay CJ, Blayney

and Denham JJ) 29 July 1993

Real Property - Equitable charge - De-

posit of land certificate - Sale of co-owned

property and purchase of other land in

joint names - Undertaking by solicitor on

behalf of purchasers to hold land certifi-

cate on trust for bank and deposit it with

bank when issued - Purchasers proceed-

ing on understanding thatjoint loan would

bemade by bank - Loan made to only one

purchaser - Interest of other purchaser

unaffected by equitable charge

Practice- Pleadings-Argument that lender

entitled to equitable charge through

subrogation to a vendor's lien not raised in

pleadings or grounds of appeal - Require-

ment that claim to a lien should be specifi-

cally and specially pleaded

Practice - Costs - Plaintiff succeeding

against one defendant and having claim

against other defendant dismissed- Order

of costs against plaintiff in favour of suc-

cessful defendant - Alternative claim and

alternativepotential liability-Recoupment

of costs from defendant against whom

plaintiff succeeded - Courts of Justice Act

1936, section 78

Facts

The plaintiff and her husband had

been joint tenants of a farm in Cork. In

1978 they decided to sell this property

and acquire a larger farm which would

also be in their joint names. They entered

into a contract of sale in respect of a farm

in Limerick for £700,000 after the second

defendant (the bank) agreed to lend Mr

O'Keeffe the requisite deposit. On 29

November 1978 the first named defend-

ants, who were the couple's solicitors,

wrote to the bank and informed it that the

plaintiff and her husband were purchas-

ing the Limerick farm in their joint names

and that on completion the sol icitors would

hold the land certificate pertaining to that

property in trust for the bank. They also

undertook to lodge the net proceeds real-

ised from the sale of the Cork farm to the

credit of an account in the couple's joint

names which would be opened by the

bank. In a letter to the bank dated 4 April

1979 the sol icitors indicated that the plain-

tiff and her husband were completing the

purchase of the Limerick farm and issuing

a cheque for the balance of the purchase

price. They also confirmed that they would

hold the title deeds on trust for the bank

and lodge them as soon as completion

occurred.

The proceeds of sale of the Cork farm

were not paid into a joint account but into

one in Mr O'Keeffe's sole name. No joint

loan account was ever opened and, in-

stead of lending the couple the balance of

the moneys necessary to finance the pur-

chase, the bank made the loan to Mr

O'Keeffe alone and opened a loan ac-

count in his sole name. The balance of the

purchase price was paid to the vendor by

bank draft and not by means of a cheque

issued by the plaintiff and her husband as

contemplated in the letter of 4 April. Mr

O'Keeffe subsequently failed to make re-

payments in accordance with the loan

contract and the debt owed to the bank

grew considerably. The bank attempted to

get the plaintiff to accept joint responsibil-

ity for the debt owed by her husband but

she refused to do so. The plaintiff left her

husband in April 1980 and instructed the

solicitors not to lodge the land certificate

with the bank. However, they maintained

that they were bound by the undertaking

of 29 November 1978 and accordingly

lodged the certificate with the bank on 8