315 / 322
GAZETTE
JULY/AUGUST 1984
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
ROAD TRAFFIC / RES JUDICATA
Dismissal of Appeal from Circuit Court —
no affirmation of Circuit Court Order —
matter not Res Judicata in relation to High
Court proceedings — payment of Circuit
Court Decree without admission of
liability no bar to High Court Action.
On 24 April, 1979, Mr. Cassidy, a
motor cyclist, was very seriously injured
in a road traffic accident when he collided
with a motor car, the property of Mr.
O'Rourke. On 28 September, 1979,
O'Rourke's Solicitor issued a Civil Bill
claiming damages against Cassidy. On 9
July, 1980, Cassidy's Solicitor issued a
High Court Plenary Summons claiming
damages for personal injuries against
O'Rourke.
At the hearing of the Circuit Court
proceedings on 5 November, 1980, the
Court found Cassidy 100% negligent and
gave a Decree to the Plaintiff for
£422.72p. Mindful of the effect of the
J u d gm e n t, C a s s i d y 's So l i c i t or
immediately appealed to the High Court.
This Appeal was not supported by
Cassidy's insurers who through their
representative were negotiating directly
with O'Rourke's Solicitors. Because of a
threat by O'Rourke's Solicitors of High
Court proceedings against them the
insurance company issued a supplement
cheque for £422.72p. The covering letter
stated—
"We have received your letter of 30
June, and we now attach cheque for
£422.72p in favour of Mr. O'Rourke
being the amount of the Decree".
At a later stage the letter says:
"We await hearing from you and in
the meantime we draw your
attention to the fact that our
payment of £422.72p is made
without admission of liability."
O'Rourke's Solicitor replied to this
letter on 26 July, 1981, saying:
"We note the contents of your letter
of 20 July last."
Subsequently the matter of the costs of
O'Rourke's Solicitor was disposed of.
On 22 October, 1981, Cassidy's Appeal
to the High Court on Circuit came before
Gannon J. O'Rourke's Solicitor opposed
an adjournment and evidence was given
by him and by Cassidy's Solicitor.
Gannon J. dealt with the case and in his
Judgment he said:
"The position is that the Plaintiff has
a good award as regards the Circuit
Court proceedings. The Circuit
Judge has determined the issue and
evaluated the damage. Satisfaction
of this Judgment was offered.
Therefore my decision is that the
Plaintiff has a Judgment in the
Circuit Court which has been
satisfied. I therefore dismiss his
Appeal and as no costs are looked
for by the Plaintiff, I make no Order
in this respect."
The Order of Gannon J. states:
". . . that the appeal do stand
dismissed and the Court doth affirm
the Circuit Court Order and makes
no Order as to the costs of the said
Appeal."
Cassidy's High Court Action for
damages for personal injuries against
O'Rourke then came on for hearing.
Before the substantive issue was heard,
the matter came before Carroll J. in the
High Court, on a preliminary issue as to
whether, in the light of what transpired in
the Circuit Court proceedings, Cassidy's
claim in the High Court proceedings was
Res Judicata.
Cassidy's Solicitor in
evidence before Carroll J. stated that at
the hearing of the Appeal in the High
Court on Circuit, he only produced
correspondence and was asked one
question. There was no attendance by the
insurance company who had authorised
payment of the Circuit Court claim. The
Court found as follows:
1. The letters of 20 July, 1981, from the
insurance company to O'Rourke's
Solicitor and 26 July, 1981, from
O'Rourke's Solicitor in reply were
not before the High Court on Circuit
as they would not have been in the
possession of Cassidy's Solicitor.
2. The Order of the High Court on
Circuit in dismissing the Appeal was
incorrectly drawn up. Gannon J.
dismissed the Appeal but he did not
affirm the Circuit Court Judgment
because to do so, would have
decreed Cassidy by High Court
Order for a sum of £422.72p in
respect of a Judgment already
satisfied. Therefore, only the Circuit
Court Judgment was left standing
upon which O'Rourke could make a
claim of
Res Judicata
there being no
High Court Decree against Cassidy.
3. In view of the fact that the cheque for
£422.72p which was sent without
admission of liability, was accepted
by O'Rourke or on his behalf without
further comment he cannot now set
up the payment as a bar to High
Court proceedings. In this Carroll J.
applied the principle of Estoppel
similar to that applied by the
Supreme Court in
Doran
-v-
Thompson Limited
[1978] I.R. at
p.223.
XIII
HELD: The Order of the High Court on
Circuit was only a dismissal of the Circuit
Court Appeal without further Order thus
leaving the Circuit Court Order as the
only Order on which there was a finding
on the issues. In the circumstances
O'Rourke having accepted the payment
on the basis that there was no admission
of liability is estopped from relying on the
Circuit Court Order and is not entitled to
enter a plea of
Res Judicata
to the High
Court proceedings.
Henry Cassidy
-v-
Charles Noel
O'Rourke - High Court (per CarrollJ.), 18
May, 1983, - unreported.
George Bruen
COMMERCIAL
Banking — Documentary Credits —Time
at which Documentary Credit ought to be
opened or established —contract — implied
term — consensus ad idem — Section 4 of
Sale of Goods Act 1893.
The Supreme Court heard an appeal
brought by the Defendants (I.G.B.)
against the judgment given against them
in the High Court in an action brought by
the Plaintiffs (Tradax) for breach of
contract. The amount of damages
awarded in the High Court was £215,000
which amount was not disputed by I.G.B.
on appeal in the event of their liability
being proved.
Tradax alleged that I.G.B. had entered
into a binding oral contract on 23 March
1978 to sell to it two lots of grain: (1)
20,000 metric tonnes at £99.50 per tonne
delivered f.o.b. for shipment from New
Ross subject to a minimum loading rate
of 800 tonnes per weather working day
and (2) 5,000 metric tonnes to be
delivered ex-store, either from Mullingar
or Edenderry, at £96.50 per tonne. Each
lot was to be paid for by letter of credit
maturing for payment on 1 May 1978.
Tradax alleged that the contract, whilst in
the course of performance, was
wrongfully cancelled and repudiated by
I.G.B. by way of a letter addressed from
the latter to Tradax dated 21 April 1978.
I.G.B. in the High Court and on this
appeal disputed Tradax's claim on the
following three grounds (1) that no
contract was concluded on 23 March
1978. there being no
consensus
ml idem
between the two contracting parties; (2)
that even if an oral contract or contracts
were entered into on such date that the
same were unenforceable for non-
compliance with Section 4 of the Sale of
Goods Act 1893; (3) that the failure of
Tradax to open a letter of credit for the
price agreed prior to 21 April 1978
entitled I.G.B. to repudiate the contract
and to refuse further performance thereof
as from that date.
HELD: (1) (McCarthy J. dissenting)
that there was sufficient evidence on
which Gannon J. in the High Court could
have concluded that there existed
agreement between the contracting