606 / 736
dance with the Patents Act, 1949, has created a new
problem in patent law which only new legislation can
remedy.
The House, Lord Diplock dissenting, so said in allow
ing an appeal by American Cyanamid Company, of New
York, in the first "leapfrog" appeal under the Adminis
tration of Justice Act, 1969, direct from the decision of
Mr. Justice Graham, last February, in favour of the
Upjohn Company of Kalamazoo, Michigan, on their
petition for the revocation of
letters patent granted
to Cyanamid in relation to a new antibiotic, porfiro-
mycin, on the grounds that the complete specification,
published in the United Kingdom in August 1963, did
not satisfy the requirements of the patent law.
[American Cyanamid Company v The Upjohn Com
pany; House of Lords;
The Times,
28 October 1970.]
Practice
Plaintiff passenger
injured when defendant driver
swerved suddenly and struck a ditch caused by a tyre
burst. Defendant having bought the car from Transit
Ltd. alleged that they had sold the car with a dangerous
tyre which they had warranted perfect. Plaintiff then
got leave to add Transit Ltd. as second defendant, but,
the claim
in the amended statement was not stated
conjunctively but only disjunctively. The trial was held
in Cork before Murnaghan J. without a jury. At the end
of the plaintiff's case, Murnaghan J., having overruled
his previous decision in Macken v Westmeath County
Council to the effect that an application for a direction
should not be ruled upon until after evidence for the
defence had closed, acceded to the application of Tran
sit Ltd. for a direction. The action continued against the
defendant, but the jury were unable to agree. It is to be
stressed that the defendant and Transit Ltd. were not
concurrent wrongdoers, but rather separate wrongdoers
—therefore Section 32
(1) of the Civil Liability Act,
1961, does not apply. The Supreme Court (6 Dalaigh
C.J., Walsh and Fitzgerald J. J.) held that Murnaghan
J. should in justice have afforded plaintiffs counsel a
further opportunity to offer evidence against Transit
Ltd. Consequently the appeal was allowed, and a retrial
was ordered against both defendants.
[O'Sullivan v Noonan; Supreme Court; Unreported;
31 July 1969.]
Appeal against order of Murnaghan J. transferring the
case from the High Court to Castlebar Circuit Court.
Infant plaintiff, girl of seven, was injured as a passenger
in her father's car when an agent was driving, and when
this car collided with the second defendant in October
1966. The infant plaintiff's injuries were mostly facial.
She was examined by surgeons on her own behalf and on
behalf of defendant
in May 1969. The defendant's
surgeon was of the opinion
that the scars could be
hidden by the application of cosmetics, while the plain-
fiff's
surgeon
thought
there would be
a permanent
disfigurement on her face. Murnaghan J. thought that
an award of £500 would be a good award. Counsel for
plaintiff argued that the correct test was laid down in
Connor v O'Brien
(1925) 1
I.R. 24—that if the amount
of damages recoverable is the only question involved in
this decision, the court must consider whether the plain-
fiff could contemplate the recovery of a sum for damages
beyond the jurisdiction of the Circuit Court—which was
approved.
The Judges of the Supreme Court have inspected the
plaintiff's scars, and consider that, as her scars are
permanent, she must put up with them for the rest of
her life. They considered that Murnaghan J. applied a
purely subjective test in the case. In view of the fact
that Section 11 of the Justice Act, 1936, favours the
retention in the High Court of actions which might
otherwise be commenced
in
the Circuit Court,
the
appeal should be allowed, and
the case
should be
retained in the High Court.
[Ronayne v Ronayne and Greeny; Full Supreme
Court; Unreported; 16 July 1970.]
Shipping
The court stressed the undesirability of disturbing an
established commercial practice when
it upheld
the
practice followed since 1914 of not treating the arbitra
tion clause in the Centrocon form of charterparty as
incorporated into bills of lading issued under the charter-
party unless the clause is germane to the subject matter
of the bill of lading or incorporated by clear and explicit
words.
[The Annerfield; Court of Appeal;
The Times,
29
October 1970.]
The right of shipowners to withdraw their vessel under
a time charter from the charterers' service because there
was an accidental default in payment of the hire charge
over the weekend October 3 to October 5 was held to be
defeated by the charterers' tender of payment shortly
before the shipowners gave them notice of the with
drawal.
[Empresa Cubenede Fletes Lagonisi Shipping Co.
Ltd.; Court of Appeal;
The Times,
30 October 1970.]
Solicitor's Authority
See under
Trade Unions,
Keys and another v Boulter
and others, Court of Appeal, 21 October 1970.
Statute of Limitations
See under
Damages,
Penrose v Mansfield.
Trade Description
A milk retailer who offered milk for sale in bottles
capped with foil tops embossed with an accurate descrip
tion of the milk when the bottle glass bore embossing of
the names of concerns owning
the bottles, did not
contravene the Trade Descriptions Act, 1968, by offering
for sale milk to which a false trade description was
applied.
FDonnelly v Rowlands; Q.B.D.;
The Times,
3 Nov.
1970.]
148