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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