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GAZETTE
JULY / AUGUST 1984
considered and granted in
Mareva
Compania S.A.
-v-
International Bulk
Carriers S.A.
[1980] 1 All E.R. 213). Prior
to that case the principle generally
applicable was that "you cannot get an
injunction to restrain a man who is
alleged to be a debtor from parting with
his property" —
Lister -v- Stubbs
[1890]
45 Ch.D. The jurisdiction to grant
Mareva injunctions in England was based
on provisions similar to those contained
in Section 28(8) of the Judicature
(Ireland) Act, 1877, the relevant part of
which states, "an injunction may be
granted by an interlocutory order of the
Court in all cases in which it shall appear
to the Court to be just or convenient that
such order shall be made". There is
jurisdiction to grant such an injunction
and the cases in which it may be granted
are not confined to cases in which a
defendant is resident outside the State.
There must be a real risk of the removal
or disposal of the defendant's assets,
there must be a danger of default by the
defendant, the plaintiff must show that he
has a good arguable case, and, weighing
the considerations for and against the
grant of an injunction, the balance of
convenience must be in favour of
granting it —
Barclay-Johnson -v- Yuill
[1980] I W.L.R. 1259. If damages were to
be awarded to the Plaintiffs on the basis of
their claims, there would be a danger of
default by Ranks through inability to pay
the amounts of the awards. But to justify
such an injunction, the anticipated
disposal of a defendant's assets must be
for the purpose of preventing a plaintiff
from recovering damages and not merely
for the purpose of carrying on a business
or discharging lawful debts. On the
question of the balance of convenience,
there can be very little question about the
advantage of disposing of the wheat and
flour which is perishable. If the
Defendants were to be successful in the
action, no undertaking as to damages
given by the Plaintiffs would be of any
value. The Court accepted as correct the
statement of Sir Robert Megarry V.C. in
the
Barelay-Johnson
case, where he said
"I would regard the Lister principle as
remaining the rule, and that Mareva
doctrine as constituting a limited
exception to it." "The Lister Rule"
(Lister -v- Stubbs)
is that the Court will
not grant an injunction to restrain a
defendant from parting with his assets so
that they may be preserved in case the
plaintiffs claim succeeds. Application
refused.
Harry Fleming & Ors. -v- Ranks (Ireland)
Limited and Donal O'Donoghue - High
Court (per McWilliam J.) 16March, 1983-
[1983] ILRM 541.
William Johnston
ROAD TRAFFIC ACTS
Obligation on prosecuting Authority to
supply a copy of the Certificate if they
become aware that a person charged under
Section 49 of R.T.A. 61 has not received
one.
The prosecutor was convicted on 25
January, 1983, in the District Court of an
offence contrary to Section 49 (2) of the
Road Traffic Act, 1961, as amended by
Section 10 of the Road Traffic
(Amendment) Act, 1978. He was arrested
on 28 August, 1982, under Section 49(6)
of the Road Traffic Act, 1961, and gave,
voluntarily, a specimen of his blood and
received a corresponding specimen. He
was informed of the purpose of the
specimen and advised that a copy of a
certificate of the analysis would be sent to
him. He gave an address in Cork to which
he wished the Cert to be sent at which he
was known but, he permanently resided
at his parents address in Dublin which he
also gave to the Gardai.
The copy Certificate was sent by the
Bureau to his Cork address by registered
post prior to 4 September, 1982, upon
which date it was returned with a note on
the envelope "no such person at this
address". On 9 September, the Garda
Station at Rathfarnham was notified of
the return to them of the registered
envelope pursuant to Section 22 (3) of the
1978 Act. Between that date and 25
January, 1983, the Certificate and the
copy thereof remained in the possession
of the Gardai and no steps were taken to
furnish a copy to the Prosecutor.
Sometime in October, 1982, a summons
was issued by the Gardai at Rathfarnham
for an offence to which the Certificate
related and service of the summons was
effected towards the end of October to the
Dublin address. The case came before the
District Court on 21 December, 1982,
when the prosecuting Guard informed
the district Court that the copy
Certificate of the Medical Bureau had not
been received by the prosecutor
whereupon an Application for an
adjournment at the request of the
prosecuting Guard was granted. Counsel
applied to have the charge dismissed for
want of delivery of the copy Certificate
but the adjournment was granted. On 25
January, 1983, the. prosecuting Guard
handed a copy of the Certificate of the
Medical Bureau to the Prosecutor prior
to the commencement of the Hearing. At
this Hearing Counsel again applied for a
dismiss of the charge on the grounds that
a copy of the Certificate had not been
forwarded by the Medical Bureau to the
prosecutor "as soon as practicable" after
making the analysis of the blood
s p e c i men a nd d e t e r m i ng t he
concentration of alcohol in it. The
District Justice ruled against the
submission having considered all the
evidence and convicted the prosecutor.
On 14 March, 1983, the prosecutor
obtained in the High Court a Conditional
Order of Certiorari directed to the
District Justice to send forward the Order
of 25 January 1983 to be quashed unless
cause be shown to the contrary.
HELD: making ab s o l u te the
Conditional Order that the Gardai and
the State Solicitor were aware that the
copy Certificate required by Statute to be
forwarded to the prosecutor had in fact
been forwarded but had not in fact
reached him and in that knowledge the
proceedings were commenced for the
conviction of an offence under Section 49
of the Road Traffic Act, 1961, as
amended in respect of which the contents
of the Certificate was an essential proof.
The Gardai had retained the copy
certificate intended for the prosecutor up
to the return date of the summons which
had been served during the period of the
adjournment despite issue having been
taken upon its absence. The following
passage from the judgment of the
President of the High Court in
The State
(Walshe)
-v-
Murphy
[1981] I.R. 275 was
cited.
". . . . I am satisfied that there is an
obligation on the prosecuting authorities
in a charge under Section 49 of the Road
Traffic Act, 1961, where they become
specifically aware that the person charged
has not received a copy of the Certificate
and requires one, to supply him with one
in such good time as to provide him with a
realistic opportunity to have the
specimen which he has retained analysed
and to contest the validity or correctness
of the Certificate which was issued."
The State (Patrick O'Regan) -v- District
Justice Plunkett - High Court (per Gannon
J. 29 July, 1983 - unreported.
Daniel
F.
Murphy
CERTIORARI
Where a Garda prosecutes in his own
name, the D.P.P. does not have authority
either to take over, or to withdraw such
prosecution without the Garda's consent.
Subsequent to an incident which
occurred on 20 Setpember 1981, Garda
O'Brien filed a report at the Superinten-
dent's office in Cork, requesting that a
summons be issued against Michael
Collins for alleged disorderly conduct.
The summons was issued, and eventually
came on for hearing on 4 June 1982. In
the meantime, Collins had, through his
solicitor, made a complaint against
Garda O'Brien. This complaint was duly
investigated, and Collins' Solicitors
received notification from the Director of
Public Prosecutions that the summons
against his client was to be withdrawn,
and that Garda O'Brien was himself to be
summoned. This further summons was
returnable for 4 June 1982, and on that
date, both summonses were adjourned
for hearing to 17 June 1982. It would
appear that the D.P.P. did not indicate to
the Court on 2 June that he would be
applying to have the summons against
Collins withdrawn. On 17 June, the State
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