The Gazette 1971

In regard to (2) I am influenced by the opinion of

Mr. G. A. Rink, Q.G. (English Bar), who writes on this

aspect of limitation :

(a) Time would run from the date when the client

sustained damage as a result of the negligence, but

there is a divergence of opinion as to what that date

is, the alternatives being :

(i) the date when the client receives a defective

opinion or draft document, or

(ii) the date when he 2Cts to his detriment on the

faith of such an opinion or draft document, or

(iii) the date on which damage actually accrues.

There is also a possibility that in some cases a

barrister might—under the principle of

Hedley Byrne

(1) 1964 A.C. 465.

(2) 1969 A.C. 191.

(3) p. 264.

(4) p. 287.

(5) 1914 A.C. 932.

(6) 1969 A.C. 199.

(7) 1838 C.&P. 475.

(8) Reproduced in

Jesting Pilate

(Woinarski), p. 131.

(9) Montriou v Jefferys (1825) 2 C.&P. p. 116.

v Heller

—be liable, in respect of a negligent opinion,

to a person who is not his client.

(b) The client should not have any special protec-

tion because of the relationship between him and the

barrister; but it would clearly be desirable that, if a

barrister is liable for negligence in relation to pure

paper work, the period of limitation should run (as it

does in the case of solicitors) from the date of the

negligent opinion or draft.

Notwithstanding the different bases of the relationship

between barrister and client and between solicitor and

client it is both desirable and reasonable that the

commencement of the period of limitation should be

determined on the same bases for both branches of the

profession.

(10) 1940 A.C. 282.

(11) White v Washington 1738 Cooke's Practice Cases 152.

(12) Unreported; based on a press report.

(13) Lake v Bushby 1949 2 All. E.R. 964 968.

(14) See Halsbury,

Laws of England,

third edition, p. 100.

(15) See Nocton v Lord Ashburton 1914 A.C. 932.

(16) e.g. Ford and Anor. v White & Co. 1964 2 All. E.R. 755.

(17) per Lord Devlin 1964 A.p. p. 526.

(18) (1958) 2 All. E.R. 241.

Editorial — Contempt of Court

The decision of the Supreme Court delivered by the

Chief Justice in the Paraic Haughey appeal will rank as

historic. It seems strange that, as contempt of court was

undoubtedly a misdemeanour punishable by a sentence

without statutory limit, no court had previously adverted

to the fact that it could consequently not be considered

as a minor offence.

Eventually Section 3 (4) of the Committee of Public

Accounts of Dail Eireann (Privilege and Procedure)

Act 1970 was found unconstitutional. The main ground

was that the subsection authorised the Committee to

try and convict, and thereupon to send the offender

forward to the High Court. Apart from the Com-

mittee exercising a judicial function, contrary to Article

34, the Committee committed a breach of natural justice

by being judge and jury. It was rightly emphasised that

the courts cannot, under the Constitution be used as

auxiliaries to enforce the purported convictions of other

tribunals, and this may have far-reaching consequences.

Under Article 38, indubitably trial, conviction and sen-

tence are parts of the criminal trial which can only

be exercised by the courts. The High Court cannot

punish a complainant for contempt of court summarily,

because by Article 38, trial by jury of non-minor

offences, including contempt, is mandatory. Obviously

the Oireachtas, under the Constitution, could not de-

clare contempt of one of its Committees to be contempt

of Court. Although there was a presumption relating to

the constitutionality of statutes passed by the Oireach-

tas, this did not give the High Court an option to

decide whether it could try a case of contempt sum-

marily, or by a trial by jury, because the simple inquiry

formula contemplated by the subsection did not

authorise an intention to proceed by indictment. The

full impact of this decision must await further clarifi-

cation. It states the constitutional limitations on the

enforcement powers over witnesses bv statutory tribu-

nals and may thus be far-reaching. It would seem at

first sight that penalties for failure to answer before

these tribunals can be imposed only after trial and

conviction by a jury.

Third Judge not to sit in Court

Another judge, District Justice Coghlan, has refused

to sit in the 120-year-old Waterford Courthouse. From

next Friday the district justice said yesterday, Water-

ford summary, civil and juvenile cases will be held

in Tramore House, a public building.

Last February, the Hilary sitting of the Waterford

Circuit Court had to be held in the local Protestant

hall, and the Easter sitting earlier his week was trans-

ferred to Dungarvan Courthouse, as was a recent meet-

ing of the Waterford High Court.

The Waterford City Manager, Mr. John Cassidy,

said yesterday that the county registrar, Mr. Joseph

Kenny, told him of the courthouse's condition. Mr.

Kenny, he said, was to prepare a report on the feasib-

ility of using a building known as the Bishop's Palace,

as a temporary measure.

Irish Independent.