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GAZETTE

SEPTEMBER 1993

The Interception Act, 1993 will regulate interception of postal packets and

telecommunications

messages.

State, must be in writing and signed

! by an officer of the Permanent

! Defence Force who holds an army

rank not below that of Colonel.

The opportunity has also been taken in

the

Interception Act, 1993

to amend

the definition of "intercept" in section

98 of the

Postal and

Telecommunications

Services Act,

1983.

Prior to the enactment of the

1993 Act it was a criminal offence for

| any person,

inter alia,

to record a

I telephone message without the

| agreement of both the person on

whose behalf the message was

transmitted

and

of the person intended

to receive the message. The new

definition of "intercept" is as follows

"listen to or record by any means

i

in the course of its transmission a

i

telecommunications message but

does not include such listening or

I

recording where either the person

!

on whose behalf the message is

!

transmitted or the person intended

j

to receive the message has

consented to the listening or

recording."

This means that it will be lawful, at

least in terms of the 1983 Act, for one

| person, a party to a telephone

conversation, to record the

conversation without the consent of

the other party to the telephone

conversation. However, other

| considerations and other aspects

of the law, including any

constitutional right to telephonic

privacy, may apply.

Conveyancing: The

Lock-Out Agreement

j

A new phrase may soon enter the

lexicon of Irish conveyancers; it will

be termed "the lock-out agreement."

The issue came up for consideration in

the Court of Appeal in the case of

Pitt

v PHH Asset Management Ltd. [The

Times Law Report

July 30, 1993]. The

Court consisted of the Master of the

Rolls, Sir Thomas Bingham, Mann,

and Gibson LJJ. The Court of Appeal

held that an agreement reached

between a vendor of property and a

j prospective purchaser that the vendor

I would not negotiate with other pros-

! pective purchasers for a short

! stipulated period was a lock-out

agreement enforceable in law.

! Gibson, LJ, in his judgment, with

! which Mann, LJ, agreed and with the

Master of the Rolls delivering a

j

concurring judgement, stated that when

the defendant put the property on the

market, two buyers made offers of

whom the plaintiff was one. His offer

was initially accepted subject to

| contract, but rejected on the other

j

offeror making a higher offer. After

further communications, the plaintiff

I had written to the estate agent acting

for the defendant stating:

"Your client has decided it is in his

!

best interest to stay with my offer

subject to contract.

The vendor will not consider any

further offers for the property on

the basis that I will exchange

contracts within a period of two

weeks of receipt of that contract."

The defendant agreed to those terms but

after sending the contract to the

plaintiff, sold at a higher price to the

other offeror before the two-week

period for exchange had elapsed. The

question according to Gibson, LJ, was

whether that was what was often called

a lock-out agreement. One had to look

at what had been agreed to see whether

there was something capable of

subsisting as a binding contract

independent of the continuing

negotiations for the sale of land.

Paragraph two of the plaintiff's letter

had been clearly agreed by the

defendant and there was no reason why

that agreement should be considered

subject to contract.

The judge rejected the submission that

there was no consideration moving

from the plaintiff: there was value to

the defendant both in the removal of the

plaintiff's threat to make difficulties

with the other offeror and in promising

to get on with the sale by limiting

himself to two weeks for exchange.

Rejecting the submission that the agree-

ment was unenforcable on what may be

termed "Statute of Frauds" grounds, the

judge said it was plain that the defend-

ant was not committing himself to a sale

to the plaintiff at the preliminary stage.

Obviously there was no contract for the

sale of land nor any option for the sale

of land. What was agreed was a lock-

out agreement, the negative element

characteristic of which was identified by

Lord Ackner in

Walford v Miles,

[1992]

2 AC 128, 139. The defendant was

bound by the agreement for 14 days and

the judge was right to hold that the

contract was enforceable. Damages for

breach of contract were to be assessed if

not agreed.

j Wigs Again

Readers may remember that in the

June

Gazette

(Vol 87 No 5 page 170)

Lawbrief

informed readers that a

report of the Committee on Court

Dress (established by the Bar Council)

j

was still under consideration by the

i

Bar Council of Ireland. Readers may

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