The Gazette 1994

GAZETTE

JULY 199*

He ld

by Murphy J in dismissing the

plaintiff's claim: (1) Where a tribunal is

engaged in determining only a question

of fact, it is not in itself a breach of natural

or constitutional justice which would

invalidate its decision for it to receive

advice on a matter of law without inform-

ing the parties as to the fact or nature of

that advice. (2) The defendants' function

was to determine, as a matter of fact,

whether the allegations made against the

plaintiff were well founded. Legal guid-

ance was sought solely for the purpose of

ensuring that they were acquainted with

the requirements of natural and constitu-

tional justice. Thus they were not re-

quired to disclose it to the parties. (3) The

defendants were not in the position of a

disciplinary tribunal but instead were

acting as an employer reviewing the con-

duct of an employee. As such it was not

incumbent upon them to enquire as to

whether any further submissions were to

be made in mitigation of the penalty. In

any event, the plaintiff had been given

ample opportunity to deal fully with the

allegations made against him and the

consequences which an adverse finding

might have for him. (4) The criminal

standard of proof was not applicable as

the matter arose out of a civil claim

between an employer and an employee.

As in every civil action the matter fell to

be determined on the balance of prob-

abilities.

Reported at [1994] 1 ILRM 58

The People (Director of Public Prosecu-

tions) v Rock:

Supreme Court (FinlayCJ,

O'Flaherty, Egan, Blayney and Denham

JJ) 18 March 1993

Criminal Law - Larceny - Whether open

to a court to convict on a charge of simple

larceny where the evidence discloses an

offence of larceny from the person or

robbery - Whether simple larceny is an

offence at common law - Larceny Act

7976, ss. 2,

14,23- Criminal Law (juris-

diction) Act 1976, s. 5

Facts

The accused had been charged

with simple larceny contrary to s. 2 of the

Larceny Act 1916. At the trial of the

action, evidence was given which tended

to disclose an offence of larceny from the

person contrary to s. 14 of the Larceny

Act 1916, or an offence of robbery con-

trary to s. 23 of the Larceny Act 1916 as

inserted by s. 5 of the Criminal Law

(Jurisdiction) Act 1976. Counsel for the

accused, submitted that it was not open

to the court to find the accused guilty of

simple larceny contrary to s. 2 of the

Larceny Act 1916 where the evidence

disclosed an offence provided for by the

other provisions of the said Act. The trial

judge accepted this submission and di-

rected the jury to enter a verdict in favour

of the accused. The Director of Public

Prosecutions, in the exercise of the pow-

ers vested in him by the Criminal Proce-

dure Act 1967 and the Prosecution of

Offences Act 1974, then requested the

Supreme Court to determine the follow-

ing questions of law without prejudice to

the verdict in favour of the accused: (1)

Whether the trial judge was bound to

follow the decision of the Court of Crimi-

nal Appeal on the basis that it was a

binding precedent upon him; and (2)

Whether it is open to a court to enter a

conviction against an accused on a charge

of simple larceny where the evidence

discloses that the larceny was larceny

from the person or robbery.

Held

by the Supreme Court (O'Flaherty

J; Finlay CJ, Egan, Blayney and Denham

JJ concurring) in answering the questions

posed in the affirmative, that: (1) S. 2 of

the Larceny Act 1916 is a reference to

what was the common law offence of

simple larceny. Simple larceny, there-

fore, is not an offence created by statute.

(2) Thus, even if circumstances of aggra-

vated larceny or robbery are forthcoming

the prosecution is not precluded from

laying the count in the indictment as

contrary to s. 2 of the Larceny Act 1916.

(The People (Attorney General) v Mills

(1955) 1 Frewen 153 overruled). (3) There-

fore, it is open to a court to enter a

conviction agai nst an accused on a charge

of simple larceny contrary to s. 2 of the

Larceny Act 1916 even where the evi-

dence discloses that the larceny was lar-

ceny from the person or robbery, being

offences punishable by the provisions of

ss. 14 and 23 of the Larceny Act 1916

respectively. (4) The trial judgewas bound

to follow the decision of the Court of

Criminal Appeal if he considered that

there was a conflict between it and a

decision of the High Court since it was at

the date of the trial a decision of a court

of final jurisdiction, although it should

now be overruled.

Reported at [1994] 1 ILRM 66

Oblique Financial Services Ltd v The

Promise Production Co. Ltd, Dennis Hall,

Pen f i e ld Enterprises Ltd a nd John

Mulcahy:

High Court (Keane J) 24 Febru-

ary 1993

Injunction - Interlocutory - Contract -

Express term - Confidentiality - Plaintiff

seeking to restrain publication pending

hearing- Whether serious question to be

tried - Whether obligation to respect

confidentiality confined to parties to the

contract - Whether right to publish pro-

tected by Constitution - Balance of con-

venience - jurisdiction of Courts and

Enforcement of Judgments (European

Communities)Act 1988, s. 71 -Constitu-

tion of Ireland 1937, Articles 40.6.1°,

40.3.1°.

Facts

The plaintiff was a company incor-

porated in the United Kingdom engaged

in organising financial support for film

production. It entered into a contract

with the first named defendant to finance

a particular film, under the termsofwhich

absolute confidentiality would be main-

tained in relation to any information ob-

tained by virtue of that agreement. The

plaintiff complained that, in breach of the

agreement, the first and second named

defendants revealed the name of an in-

vestor and the third and fourth named

defendants intended to publish these dis-

closures in Ireland. An interim injunction

was granted restraining the third and

fourth named defendants from publish-

ing confidential information prior to the

initiation of legal proceedings in the

United Kingdom. The instant application

for an interlocutory injunction was made

by the plaintiff pursuant to s. 11 of the

Jurisdiction of Courts and Enforcement of

Judgments (European Communities) Act

1988. The third and fourth named de-

fendants claimed that they did not owe

the plaintiff an obligation of confidence

and that the grant of an interlocutory

injunction would interfere with their con-

stitutional right to freedom of expression

under Article 40.6.1°.

Held

by Keane J in granting the interlocu-

tory rel ief sought:(1) The i ntended use of

confidential information by the third and

fourth named defendants without the con-

sent, express or implied, of the plaintiff

was sufficient to establish that there was

a serious question to be tried.

House of

Spring Gardens Ltd v Point Blank Ltd

[1984] IR 611 applied.(2) An obligation

to respect confidentiality which arises

under a contract is not limited to those

who are parties to the contract, but ex-

tends to any third party to whom the

information is communicated. (3) Free-

dom to convey information is not pro-

tected under Article 40.6.1

of the Con-

stitution which deals with the formula-

tion or publication of convictions or opin-

ions, but rather by Article 40.3.1°.

Attor-

ney General v Paperlink Ltd

[1984] ILRM

373 applied. Furthermore, such a right is

not absolute but can be qualified by other

legal constraints such as the right to con-

fidentiality. (4) Whilst the damage, if any,

suffered by the third and fourth named

defendants through their inability to pub-

lish the information was necessarily hard

to quantify, this was insufficient to pre-

vent the imposition of an interlocutory

injunction, since the balance of conven-

ience clearly lay with the plaintiff.

Reported at [1994] 1 ILRM 74