The Gazette 1976

GAZETTE

AUGUST 1976

Nevertheless, because of his conspicuous legal acumen,

he was briefed as one of the Senior Prosecuting

Counsel for the State in criminal trials. Initially, his

cultured accent and slightly pedogogic air made him

seem out of place in the atmosphere of violence con-

jured up by recitals of chicanery and assaults in the

Criminal Courts. But he soon proved himself of tough,

and tempered mettle, imperturbable, and well fitted

for coping with truculent defendants. His phenomenal

capacity for long hours of grinding labour a"nd mastery

over details ensured that no loose ends were left untied

in any prosecutions. And in cross-examination in

criminal trials his polite manners and subtle mental

processes misled some foolish defendants into assuming

that he would be easy to bamboozle, and tempted

them into wild lying to their undoing.

Obviously, a large number of attributes are desirable

in a judge; for instance good brains, experience of the

world, knowledge of the corpus juris, courtesy, good

health, and a desire to do justice. But of all the

qualities the one most needed is, of course, the deter-

mination to administer justice according to law. Not

only did Mr. Justice Gavan Duffy possess all the

requisite qualities, but he also had a judicial tempera-

ment, and a sense of public spirit in a high degree

He showed skill in the interpretation of enactments;

in the balancing of arguments pro and con; and in

the elucidation of the shades of proper meaning in

the phraseology of statutes. Above all, he sought in his

judicial work to postulate a creative philosophy leading

to the better development and extension by the Courts

of criteria which would govern the interpretation of

fundamental legal presumptions, so that the feelings of

society that fair dealing, as understood by the ordinary

citizen, should be enforced; and anachronisms which

caused hardship should be superseded. Frequently, Irish

lawyers have complained that the law is a morass of

uncertainties; that in a large number of cases all too

often there does not appear to be any form of legal

redress obtainable because Irish jurisprudence has not

kept up with the times; and that at best the applic-

ation of the law is merely a blind stumbling from

precedent to precedent. This Judge like Lord Denning

in England gave a much needed impetus to the slow

movement for the modernisation of the Irish forensic

system, and overruled many archaic obiter dicta and

old court decisions which were clearly repugnant to

Irish present day thinking.

Even his elevation to the Bench made little change

in his voracious appetite for work in pursuit of legal

knowledge. He made it a practice to take home to his

first class law library the pleadings in important law

suits; and to do legal research himself on the matters

in dispute disclosed in the pleadings. In consequence,

he was able to discuss with Counsel every point of

difficulty and obtain their views on them; thereby

helping to eliminate minor matters, and spotlighting

pointers to the direction in which the actions should

be decided. Practising in the Judge's court was a

pleasant experience. Invariably, he was gracious to all

practitioners; listened to their submissions attentively;

but usually tested all doubtful arguments by question-

ing them in a way which was in effect veiled cross-

examination. If he were sceptical of the worth of some

arguments, he took time to consider them patiently

before ruling on them. At the conclusion of a trial,

irrespective of the result, everybody felt that there

had been a most fair and careful hearing. It was

unknown for him to refuse any reasonable request

made for the convenience of the litigants or Counsel,

if it were possible to grant it.

Of all his judgements, the best known are those in

the

Foyle Fishery

case (1948) (never fully reported) in

which he made a declaration relating to the public

ownership of the fishery, and the Sinn Fein Funds case

(Buckley & Ors. v. A.G.

[1950]) in which he held that

the statute purporting to dispose of the funds was

unconstitutional as the proceedings had started.

Other important decisions given by him were

those in the

Irish Aero Club

case (IR-1939),

Exham

v. Beamish

(IR-1939),

State (Burke) v. Lennon &

Anr.

(IR-1940), re Kindersley, an Infant (IR-1944),

Cook v. Carroll

(IR-1945) and the

Tilson

case (IR-

1951). The judgement in

Cook v. Carroll

is notable for

the fact that it decided that confidential statements

made to a priest are privileged. The decision in the

Irish Aero Club

case has put it beyond doubt that the

State is not entitled to priority of payment in respect

of moneys due to it, other than taxes and duties.

Reports of his judgements which will repay perusal are

the

Exham

and

Carroll

cases, as they provide good

examples of his wide quotation from analogous rules in

foreign countries germane to the fields of enquiry in

these cases; his command of mitutiae; and his powers

of logic.

On reading his judgements, one cannot help being

impressed by the thoroughness by which he unravelled

tangles of fact; his vast amount of research into the

usages in other countries in respect of similar issues as

those on which he had to adjudicate; the marshalling of

the salient features of the law suits; his narrowing

down of the true questions for decision; the analysis of

precedent court decisions; his deductions of governing

principles from such precedents; and the closeness and

cogency of the reasoning leading to his conclusions.

Ordinarily, a High Court judgment is not the place

to look for a felicitous English prose style. Owing to

the importance of the matters at stake, an inordinate

amount of prolixity and tiresome repetition of different

aspects of the same facts is usually necessary to demon-

strate the rationale and to avoid ambiguity. These

desiderata furnished the pretext for Disraeli's famous

quip that the legal mind chiefly displays itself in illus-

trating the obvious; explaining the evident, and

expatiating on the commonplace. Notwithstanding the

difficulties created by the requirements of precision, the

prose style of the Judge is too good to be passed over

without comment. It will be found that his written

utterance is clear and exact, hut contains no frills, no

pomposities, or hollow rhetoric. Furthermore, it ha;

the laudable qualities of being vigorous, full bodied,

and supple, displaying a copious and wide garnered

vocabulary with now and then forceful passages

delineating in vivid words a convincing exposition of

the canons of the law applicable in the ilitigation under

consideration. In addition, his use of languge is remark-

able for the development, continuity, and smooth flow

of his views from one sentence to the next in logical

sequence, and the easy transition from one idea to

another in paragraphs without abrupt change of sub-

ject. The cumulative effect is that of a narrative which

holds the reader's attention so that the Judge's mean-

ing is conveyed quickly and without difficulty. There-

fore, there is never any necessity to try to puzzle out

what is being stated or to re-read any part of it. Pos-

sibly, however, it could be argued that occasionally his

idiom is a little too Johnsonian for present day taste,

and that he sometimes uses recondite words rarely met

with in modern literature. An example of an extract

from

Tilson Infants

(1951)

.R. will suffice.

"The

strong language

articles

and

arrests

(Continued on page

134)

130