The Gazette 1993

GAZETTE

APRIL 1993

Recent Irish Cases

Complied fay Raymond Byrna, BCL, LLM, BL, Lecturer In Law,

Dublin City University.

The following case summaries have been reprinted from the

Irish Law

Times and Sollcltora Journal

with the kind permission of the publishers

McKenna v An Taoiseach and Ors High

Court, 8 June 1992

CONSTITUTION - JUSTICIABLE CONTROVERSY -

REFERENDUM - TREATY ON EUROPEAN UNION

WHETHER GOVERNMENT ENGAGED IN PARTISAN

CAMPAIGN - WHETHER ISSUE JUSTICIABLE

WHETHER OBLIGATION ON GOVERNMENT TO

FUND CAMPAIGN AGAINST GOVERNMENT VIEW

ON REFERENDUM-WHETHER GOVERNMENT CAM-

PAIGN IN BREACH OF ANY CONSTITUTIONAL

RIGHTS - Constitution, Article 40.3, 40.6.1 .i - Treaty

on European Union

The plaintiff, a citizen and member of a

political party, sought injunctive relief con-

cerning the manner in which the govern-

ment was conducting its referendum cam-

paign seeking to amend Article 29.4.3 to

enable it to ratify the Treaty on European

Union, which had been signed by the gov-

ernments of the member States of the Euro-

pean Communities at Maastricht in Febru-

ary 1992. The plaintiff argued that the gov-

ernment was acting in breach of the Consti-

tution by conducting a partisan campaign in

favour of the Treaty; that it was obliged in

such circumstances to provide funding for a

'no' campaign; that it was misleading the

public on the contents and effects of the

Treaty; and that the government had in-

fringed the plaintiff's constitutional rights,

inter alia, to express freely her convictions

and opinions. Since the referendum was

due to be HELD on 18 June 1992, the

plaintiff's application for interlocutory relief

was treated as if it was the trial of the action.

HELD by Costello J dismissing the claim for

relief: (1) although the plaintiff had a griev-

ance that, as a person involved in a small

political party opposed to the government's

campaign, her campaign would be deprived

of the benefits which the government had

conferred on itself from public funds, such

grievance was in the political and non-

justiciable sphere and the judiciary was not

empowered by the Constitution to remedy

such a grievance since to do so would

weaken the judicial role; and since the

plaintiff's complaint was one of political

misconduct (on which the Court would

express no view) she had failed to establish

any constitutional impropriety; (2) it was

also inappropriate for the Court to express

any view on the plaintiff's specific com-

plaint that the government's 'Short Guide to

the Maastricht Treaty' was misleading, since

this complaint was the staple of political

debate and not amatter on which the courts

should adjudicate; (3) the plaintiff had not

established that she had a constitutional

right to oblige the government to act in

accordance with the Constitution; (4) even

if the plaintiff could establish that the gov-

ernment's campaign had rendered less ef-

fective the communications she wished to

make to fellow citizens, this did not involve

any i nfri ngement of her constitutional ly pro-

tected right to communicate, nor did it

deprive her of her right to have equality of

voting in the referendum vote. Per Costello

J: although the motion for interlocutory re-

lief was determined as if it had been the trial

of the action, interlocutory relief would

have been refused on the same basis.

Slattery and Ors v An Taoiseach and Ors

High Court, 8 June 1992; Supreme Court,

18 June 1992

CONSTITUTION - REFERENDUM - INJUNCTION TO

RESTRAIN HOLDING OF REFERENDUM - SEPARA-

TION OF POWERS - WHETHER COURTS HAVING

ANY ROLE IN LEGISLATIVE PROCESS - Constitution,

Article 6 - Eleventh Amendment of the Constitution Bill

1992 - Treaty on European Union

The plaintiff instituted proceedings for an

injunction to prevent the holding of a refer-

endum seeking to amend Article 29.4.3 in

order to al low the State to ratify the Treaty on

European Union, signed by the govern-

ments of the member States of the European

Communities at Maastricht in February 1992.

The plaintiffs argued that the government

had failed to provide the citizens of the State

with sufficient information on the Treaty

which would enable them to cast their votes

in the referendum in an informed manner.

The Bill containing the text of the proposed

amendments to Article 29.4.3, the Eleventh

Amendment Bill, had been published in

April 1992. The plaintiff instituted proceed-

ings on 5 June 1992, three days after a

referendum on the Treaty in Denmark had

been defeated. The date fixed for the refer-

endum in Ireland was 18 June. The plaintiffs

sought leave to serve notice of application

for interlocutory relief during the Trinity

Vacation, which commenced on 5 June and

was to end on 17 June. HELD by Costello J:

(1) the plaintiffs had not made out a case for

obtaining leave to serve notice of applica-

tion during the Vacation, there being no

valid reason why they had not instituted

proceedings prior to 5 June; (2) in any event,

leave would be refused on the ground that

the plaintiffs were unlikely to succeed in

obtai ni ng any rel ief at the i nterlocutory stage.

McKenna v An Taoiseach and Ors

(High

Court, 8 June 1992)(supra) applied. On ap-

peal by the plaintiffs HELD by the Supreme

Court (Hederman, McCarthy and Egan JJ)

dismissing the appeal: to grant the plaintiffs

interlocutory relief on the ground that the

government had failed to provide informa-

tion on the effects of the Treaty on European

Union would be a wholly unwarranted in-

trusion by the courts into the legislative

domain provided for under the Constitu-

tion, by which the Oireachtas has the sole

power to set in train the procedure for

amending the Constitution; and the plain-

tiffs had not made out any case that the

government had acted in breach of the

Constitution in carrying through the deci-

sion of the Oireachtas to propose an amend-

ment to the Constitution contained in the

Eleventh Amendment Bill.

Wireless Dealers

Association vMinister for Industry and Com-

merce

(Supreme Court, 14 March 1956) and

Finn v Attorney General

[1983] IR 154

applied.

Per

McCarthy J (concurring): the

plaintiffs had been able fully to avail of their

right of access to the courts since the High

Court and the Supreme Court had not con-

fined themselves to the question of whether

leave to serve notice of application during

the Vacation should be granted. [Note: the

proposal to amend the Constitution, con-

tained in the Eleventh Amendment Bill, was

approved by referendum held on 18 June

1992, and accordingly the Bill was signed

by the President as the Eleventh Amend-

ment of the Constititon Act 1992.

In re Wogan's (Drogheda) Ltd; Jenkins v

Hill Samuel Bank Ltd Supreme Court 10

April 1992

CONTRACT - INTERPRETATION - WHETHER CON-

DUCT AFTER MAKING OF CONTRACT MAY BEUSED

TO INDICATE INTENTION OF PARTIES - COMPANY

- CHARGE - WHETHER FIXED OR FLOATING -

CHARGE OVER BOOK DEBTS - CREATION OF SPE-

CIAL BANK ACCOUNT FOR RECEIPTS FROM BOOK

DEBTS ENVISAGED IN DEBENTURE CREATING

CHARGE - SPECIAL BANK ACCOUNT NOT CREATED

IMMEDIATELY - WHETHER FAILURE TO CREATEMAY

BE INTERPRETED AS INTENTION NOT TO CREATE

FIXED CHARGE

The bank held a debenture from the com-

pany which created a charge over the book

debts of the company. The debenture in-

cluded a clause which provided that the

bank, as lender, might designate a bank

account into which receipts from book debts

would be deposited by the company and

over which the bank would have specified

rights of control. In the High Court, the

applicant examiner of the company sought

a declaration that the debenture had not

created a fixed charge over the company's

assets. Denham J heard evidence to indicate

that the special account referred to in the

debenture had not been established at the

time that the company was placed into

examinership. She therefore concluded that

the debenture had created a floating charge

only. On appeal by the bank HELD by the

Supreme Court (Finlay CJ, Hederman,

McCarthy, O'Flaherty and Egan JJ allowing

the appeal: (1) it was an important principle

for the interpretation of all contracts that it

was not legitimate to use as an aid in the

construction of a contract anything said or

done by the parties after the contract was

made, and to depart from this principle

would be likely to cause considerable mis-

chief; and accordingly the trial judge had

erred in admitting evidence as to whether a

special account had been created after the

debenture had been given by the company