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GAZETTE
JULY/AUGUST
1984
Recent
Irish
Cases
Edited by
Gary Byrne, Solicitor
INJUNCTION
Where it is found that a Plaintiff with a
prima facie
case has reasonable grounds to
fear that a Defendant will charge or
dispose of his assets in order to prevent
recovery on foot of any award which might
subsequently be obtained a Court may
grant an interlocutory injunction.
The Defendants were directors of the
companies comprising the Gallagher
Group and, as part of a transaction
concerning certain property at St.
Stephen's Green, jointly and severally
guaranteed the repayment to the Plaintiff
by Lambert Jones Estates Limited on or
before 27 April, 1982, of the sum of
£500,000 lent by the Plaintiff to that
company, together with interest.
When no part of this sum was repaid on
the date in question, the Plaintiffs issued a
Plenary Summons on 12 May, 1982, to
recover the loan, together with interest,
amounting to a total sum of £588,046.97.
This injunction was in the instant case
sought to be continued pending the
hearing of the action.
Affidavits filed on behalf of the
Plaintiff stated the deponent's belief that
the Defendants owned substantial
amounts of property and were involved in
transactions whereby they were charging,
or proposing to charge, their personal
assets so that certain of the Defendants'
other creditors would be preferred to the
Plaintiff.
It was further stated in the Affidavits
that it was apprehended that the
Defendants would charge or dispose of
some or all of their property and that
money or chattel property might be
removed out of the jurisdiction and so
defeat the prospect of the Plaintiff
executing on a Judgment.
In opposing this interlocutory applica-
tion it was argued on behalf of the
Defendants that a "Mareva" type
injunction of this sort can only be granted
where a Defendant outside the jurisdic-
tion has property inside the jurisdiction,
or where it is shown that a Defendant,
because of his foreign nationality or
domicile or otherwise, is likely to take his
property out of the jurisdiction, and that
it is not to be confused with fraudulent
preference in a bankruptcy matter.
HELD: Approval was expressed for
the judgment of Sir Robert Megarry,
V.C., in
Barclay-Johnson -v- Yuill[
1980] 1
W.L.R. 1259. Here it was pointed out that
there were two lines of authority with
regard to such injunctions. The older,
which he called the
Lister -v- Stubbs
line
established the general proposition that a
Plaintiff cannot prevent a Defendant
from disposing of his assets
pendente lite
merely because he fears that by the time
he obtains judgment in his favour the
Defendant will have no assets against
which the judgment can be enforced. The
newer, called the
Mareva
line, established
that such an injunction may be granted
where it is just and reasonable to do so.
The Vice-Chancellor appeared to discard
any distinction between foreigners and
citizens and went on to say that "the
Mareva prohibition against disposition
of the assets within the country is a
normal ancillary of the prohibition
against removing the assets from the
country, . . . ."
The progress of the Mareva lines of
cases seems to lead to the conclusion that
the injunction may be granted where it
appears to the Court that dispositions are
likely to be made for the purpose of
preventing a Plaintiff from recovering the
amount of his award, as distinct from
conducting the normal business or
personal affairs of the Defendant.
In the present case, from the reluctance
of the Defendants to disclose their assets
and their dispositions and proposed
dispositions of them combined with the
fact that their businesses were not
personal but were conducted by a group
of companies, it appeared to the Court
that the Defendants were probably
mainly interested to deprive the Plaintiff
of the opportunity of recovering. Accor-
dingly, the injunction was continued.
Powerscourt Estates
-v-
Patrick Gallagher
and Paul Gallagher - High Court (per
McWilliamJ.), 18May, 1982 [1984] ILRM
123.
Ken Murphy
ROAD TRAFFIC ACTS
Section 13 Road Traffic (Amendment) Act,
1973,
does not require proof of the time of
driving or attempting to drive a mechani-
cally propelled vehicle.
On 23 March, 1980, Garda John
Costello went to the scene of a traffic
accident in Dublin which involved three
motor vehicles, one of which was driven
by the Defendant. The Defendant
admitted driving the vehicle. The Garda
got a strong smell of intoxicating liquor
from the Defendant's breath and noticed
that his speech was slurred and very
indistinct. When he got out of his car he
stumbled and almost fell and was
unsteady on his feet. His eyes were
bloodshot and bleary. The Guard formed
the opinion that the Defendant was unfit
to drive a mechanically propelled vehicle
due to the consumption of intoxicating
liquor and arrested him under Section 49
(6) of the Road Traffic Act, 1961, as
inserted by Section 10 of the Road Traffic
(Amendment) Act, 1978, and then
conveyed the Defendant to Finglas
Garda Station. He was handed over to
the Sergeant who asked the Defendant if
he was aware that he had been arrested
for driving his car while drunk and being
involved in the accident and the
Defendant said that he was so aware. The
Sergeant told the Defendant that he was
sending for a registered medical practi-
tioner so that a specimen of blood or
urine could be taken from the Defendant.
He asked the Defendant if he would like
to have his own Doctor present and he
said that he would not. The Doctor
arrived and the Defendant was told that
under the Road Traffic Acts when a
person is arrested for drunken driving he
is obliged to supply a specimen of either
blood or urine to the designated
registered medical practitioner. The
Sergeant requested the Defendant to
supply either a specimen of blood or urine
to the Doctor and explained the conse-
quences of a refusal to do so. The
Defendant said he understood. The
Sergeant again asked which specimen he
would wish to give and the Defendant
then said that he was refusing to give any
type of specimen. The Sergeant asked him
if he understood the possible conse-
quences of his refusal and the Defendant
said that he did. The Defendant was
allowed to leave the Station a short time
later and took a taxi home.
No evidence was given on behalf of the
Defendant but it was submitted by his
Solicitor that the Defendant should be
acquitted as there was no case to meet on
the grounds that there was no evidence of
the time when it was alleged that the
Defendant was driving or attempting to
drive a mechanically propelled vehicle
while under the influence of drink or
drugs in contravention of Section 49 (6)
of the Road Traffic Act, 1961, as
amended by Section 10 of the Road
Traffic (Amendment) Act, 1978. Before
giving a ruling on the submissions the
District Justice stated a case asking the
following questions namely:—
1. In a prosecution under Section 13(3)
of the Road Traffic (Amendment)
Act, 1978, is it necessary to prove
that the requirement to provide a
sample was made of the Defendant
within three hours of his driving his
vehicle?
2. Is it necessary that the requisition be
made within three hours of driving,
attempting to drive or being in
charge? Would he, the District
Justice, be correct in dismissing the
charge in the absence of evidence of
time?
3. In a prosecution under Section 13(3)
is proof of the time of driving a
necessary proof for any reason?
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