The Gazette 1976

GAZETTE

UNE

1976

who carried on a light machinery

business at the rere of No. 11 did.

An acknowledgment was made that

the property belonged to the Man-

chester Go. in September, 1972.

By the summer of 1974, the pur-

chasers had difficulty in securing

financial credit for development, and

were less keen on the transaction.

The estate agent called on the ven-

dors' solicitors to explain the posi-

tion, but they were not co-operative.

In September and October, 1974,

there was a correspondence, in

which the vendor's solicitors con-

tinuously reminded the purchasers

that time was of the essence of the

Contract and the customary inves-

tigation of title was proceeded with.

During all this time, to the know-

ledge of the vendor, Mr. McLaugh-

lin continued to use the premises at

the rere of 11 Upper Baggot Street.

Mr. McLaughlin was told he would

have to have everything removed by

the end of October, and he agreed;

but no active steps were taken to

dislodge him.

On the day of the closing, the

purchaser's

agent

found

Mr.

McLaughlin on the premises with

no intention of closing. The pur-

chasers were now anxious to close

as they had secured the necessary

finances for the development. When

purchasers' solicitors visited the pre-

mises, Mr. McLaughlin claimed he

had a right to be there, and ordered

them off. As the premises were not

vacant, the purchasers refused to

close the sale and on the following

day, 31st October, X, their solicitors,

wrote rescinding the contract, and

asking for the return of deposit.

The vendors considered Mr. Mc-

Laughlin a trespasser, and com-

promised by paying him £250 in

return for possession. The plaintiff's

contention that they should have

been granted an equitable extension

of time in order to eject McLaugh-

lin is rejected. The plaintiffs accord-

ingly sought specific performance of

the contract. As the solicitors for the

plaintiffs were merely their agents,

the claim against them is dismissed.

Following

Finkielkraut v. Monohan

(1949) 2 All ER 234 and

Quad-

rangle Developments

v. Jenner

(1974) 1 All ER 729, Butler J. held

that the plaintiffs were not entitled

to specific performance. Accordingly

the purchasers were entitled to re-

scind the contract, and are also en-

titled to an order for the return of

their deposit.

United Yeast Go. v. Cameo Invest-

ments Ltd. and others — Butler, J. —

unreported — 17th December, 1975.

NATURAL JUSTICE

Discharge of soldier from Army

quashed, as he was not given an

opportunity to defend himself.

Application to make absolute a

Conditional Order of Certiorari to

quash an order whereby the plain-

tiff was discharged from the Army.

The Defence Act 1954 and subse-

quent Regulations prescribe the

conditions for Membership of the

Defence Forces. A person enlisting

in the Army is entitled to serve for

the period he enlisted unless his dis-

charge is directed for prescribed

reasons, which are stated in Para-

graph 58 of the Defence Forces

Regulations.

The plaintiff had joined the Army

in July, 1974, and received an

advancement to Private Three Star

in April, 1975. Up to the end of

May, 1975, the plaintiff's service as

a soldier was uneventful and suc-

cessful, and he was then paid £39.00

per week.

At the end of May, 1975, the

plaintiff's platoon was on a training

exercise in the Glen of Imaal, and

some incidents occurred which were

alleged to affect morale and discip-

line. On 25th May, a group of

soldiers including the plaintiff, re-

fused to obey the order of a Ser-

geant, and another of the group, to

show his defiance, advanced on the

Sergeant as if to assault him, and

at the last moment brushed past

him. When the other soldier was

charged before Lt. Colonel White

with assaulting the Sergeant, the

plaintiff gave evidence that this

soldier had accidentally bumped

into the Sergeant. Accordingly the

assault charge was dropped, and

one of insubordination substituted.

On 17th June, the plaintiff was

ordered to undergo a medical check-

up prior to discharge, and was sent

on leave for two weeks prior to dis-

charge on 19th June. Meanwhile

on 10th June, Lt. Colonel White

had directed the plaintiff's dis-

charge, and he was finally dis-

charged on 3rd July. On 19th June,

the plaintiff tried to see Commdt.

Ryan about the discharge; the

officer kept him waiting for two

hours, but declined to see him.

Generally speaking, the regulations

provide that a discharge may only

be made on the ground of miscon-

duct, and they imply that such

offence shall be investigated and

proved.

The reason given in the official

form of discharge was merely that

his services were no longer required.

Broadly this clause is intended to

cover cases where the soldier's con-

duct on the whole was unsatisfac-

tory, but where it is not possible to

bring a specific charge against him.

Colonel Quinn in an affidavit stated

that, having read the personal file

of the plaintiff, he formed the

opinion without further ado that

the plaintiff should be discharged

from the Army, and so directed.

The relevant matters appearing on

the plaintiff's personal file are care-

fully not revealed nor exhibited. It

is quite clear that at no time was

the plaintiff given any notice of the

intention of his superior to dis-

charge him, nor had he any notice

of any charges against him. How-

ever the plaintiff lost his employ-

ment, and, in view of the discharge,

it was difficult for him to obtain

alternative employment.

The main reason that the plain-

tiff obtained the Conditional Order

was that he had received no notice

of his intended discharge, or of any

charge against him, and that this

constituted a denial of Natural and

Constitutional Justice and was a

serious infringement of his constitu-

tional rights.

The High Court has jurisdiction

to investigate and determine as a

matter of law whether any act done

in purported reliance of the military

code is within its jurisdiction. The

Court is not satisfied that, on the

facts, the decision to discharge the

prosecutor was within the Regula-

tions. If a discharge is clearly desir-

able in the interests of the service, if

allegations are founded on specific

acts, the soldier should be given an

opportunity of giving an explana-

tion. It is questionable whether the

military authorities, in order to

avoid proving misconduct had the

right to state that his conduct was

unsatisfactory. As the reasons for

the discharge must be clearly desir-

able, this obviously includes a

proper investigation.

As regards the constitutional

issue, it is clear that the rights

guaranteed protecton by Art. 40(3)

of the Constitution include the right

to continue to earn a living, and to

a satisfactory discharge from the

Army. There is no doubt that, in

accordance with Constitutional and

Natural Justice the principle of fair-

ness must be observed. In this case

the plaintiff should have been in-

formed of the grounds on which the

authorities formed the opinion that

his discharge was desirable—Prin-

ciple of natural justice stated in

Ridge v. Baldwin

(1964) A.C. 40,

and affirmed by the Supreme Court

Glover v. B.L.N. Ltd.

(1973) I.R.

388—followed, as O'Dalaigh C.J.