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a decree to the plaintiff for damages, it was held
that the appeal should be allowed. The plaintiff
purchased an old dwellinghouse in Bangor; there
had been a cottage adjoining this, but it had been
demolished before the purchase. Shortly afterwards,
damp penetrated the wall, causing damage to the
plaster and decoration in the adjoining rooms.
There was a claim for an injunction to compel the
defendant to lay a damp proof course along the
wall. The defendant contends that the plaintiff
has no easement entitling him to have the wall
protected and relies on
Phipps v Pears
(1965) 1
Q.B. 76. In Cheshire on
Real Property,
tenth
edition, 473, it is stated that "a person is without
a remedy if his premises have been exposed to
damp and frost owing to the demolition of an
adjacent house, for there can be no easement of
protection against the weather, consequently the
plaintiff cannot rely on the breach of any obligation
to prevent rainwater from penetrating the gable
wall based on an easement."
As the danger was fully apparent to the plaintiff
at the time of the purchase, there can be no claim
based on negligence in the work of demolition,
which occurred before the purchase. The claim that
the condition of the part of the dividing wall
belonging to the defendant constitutes a nuisance
by reason of its porous condition is rejected, for it
is a natural and reasonable use of land, upon which
there is an old and decrepit building, to demolish
it, and if, in consequence, rainwater penetrates
through the wall of an adjoining house which had
previously been protected by the old building, the
damage so caused does not constitute a nuisance.
[Giltrap v Bushy; Northern Ireland High Court;
Gibson J.; Unreported; 5 June 1970.]
LEGAL AID
Application for Free Legal Aid in Order to Appeal
against Severe Sentence not Maintainable
The applicant had signed a plea of guilty of five
indictable charges in the District Court, including
shopbreaking, larceny and robbery. In accordance
with Section 13 (2) (b) of the Criminal Procedure
Act, 1967, the applicant was sent forward for
sentence to the Dublin Circuit Criminal Court,
where Judge McGivern in October 1969 sentenced
him to three years penal servitude concurrent on
each of the five charges. An application for leave to
appeal, and an application for a legal aid (appeal)
certificate, were made to the Court of Criminal
Appeal. The court doubted whether it had any
jurisdiction to grant legal aid in the circumstances,
and asked
the Attorney-General
to argue
the
matter. The reason for this was that Section 4 (3)
of the Criminal Justice (Legal Aid) Act, 1962,
specifically states that the application is to be made
"to the court to which the appeal from the convic
tion lies". Before the Criminal Procedure Act,
1967, an accused who had signed a plea of guilty,
was sent forward with the plea of
guilty for trial,
not
for sentence.
In other words, as an indictment had to be pre
pared, the accused could still change his plea from
"guilty" to "not guilty" in the higher court. Under
the 1967 Act the applicant is merely sent forward
to the Circuit Court for sentence; it follows that
the Circuit Court is henceforth merely a court of
sentence. Since there was no trial on indictment
of the applicant in the Circuit Court, there is no
jurisdiction to entertain this appeal—there were
only written pleas of guilty in the District Court.
If a person pleads to an indictable offence in the
Dictrict Court, and is subsequently sentenced in
the Circuit Court, he has no right of appeal to
any court. This is an omission which it is hoped
the legislature will rectify.
[People v Liam Tyrrell; Court of Criminal
Appeal (McLoughlin, Henchy and Pringle J-J-);
Unreported; 22 June 1970.]
SHIPPING
Arrested Ships must be Released
Mrs. Justice Lane ordered the Spanish owners
of the vessel "Monte Ulia", against whom claims
running into millions of pounds are being made
following an accident at Coryton Jetty, Shell-
haven, in the Thames estuary, to release six of the
seven vessels belonging
to
the owners of
the
"Banco", the vessel they allege caused the accident.
The seven ships had been arrested by the Admir
alty Marshal in various ports in Britain as security
for any damages.
Her Ladyship decided that Section 3 (4) of the
Administration
of
Justice Act,
1956,
limited
Admiralty jurisdiction to the arrest of only one
ship as security, either the offending ship or one of
her sister ships but not both.
[Vacation Court; 14 August 1970.]
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