303 / 328
Withholding facts from the Court
In Jakeman
v.
Jakeman and Turner (i 964 2.W.L.R.
90) the co-respondent in a divorce case consulted a
solicitor and instructed him to oppose the claim
for damages against him, but the solicitor wrongly
failed to do so and instead proposed a collusive
bargain on the other side. Trus was rejected and at
the hearing at which the co-respondent, on the
solicitor's advice, did not appear and by the solicitor's
fault was not represented, the husband claimed for
£3,000 damages and was awarded £2,000 damages
with costs against the co-respondent. On a sub
sequent motion it appearing that the decision as to
damages might have been different if the co-respon
dent had been represented, it was held that there
should be a re-hearing on this point alone and that
the solicitor who had failed in his duty to both the
co-respondent and the court should personally
indemnify the husband against costs payable by
him in respect of a petition and all costs between
the co-respondent and his solicitor should be
disallowed. Simon J. in his judgment stated
inter
atia
that it was proper for solicitors to bargain
about the quantum of damages payable by the
co-respondent but that it was not permissible to
bargain in such a way that part of the consideration
is withholding from the court of material which
may affect the court in the performance of its
statutory duty to inquire.
Kelly v. Cornhill Insurance Company Limited
The House of Lords by a majority (Lords
Dilhome, Reid and Morris) allowed an appeal
from a decision of the Court of Session which
had held that the appellant was not covered by
a policy of insurance issued by the Cornhill
Insurance Company Limited to his father in respect
of a motor car when he was involved in an accident
eight months after the death of his father, on the
ground that the permission given by the insured,
to his son to drive the car ceased with the death
of the insured. The Lord Chancellor in his judgment
stated
inter alia
"Permission to drive a car was
consent to the use of the chattel. If a man consented
to the use by another of a chattel of his for a period
of six months, the use of the chattel for that period
was lawful during that period and did not become
unlawful in consequence of the death of the per-
mittor in the course of the six months". The grounds
of the minority judgment (Lords Hodson and Guest)
was that permission to use a chattel is something
that is revocable at any time, unless accompanied
by a stipulation that it should continue for a stated
period, and that the permission could not be assumed
to continue once that control was removed by
the death of the permissor.
(Kelly v. Cornhill Insurance Co. Lfd.
1964. i
All
E.R. 321.)
Licensing application. Failure to lodge plans in time with
Gardai.
This was an application for a declaration pursuant
to section 15 (i) of the Intoxicating Liquor Act,
1960 that premises if altered or reconstructed in
accordance with the proposed plan of reconstruction
would be fit and convenient to be licensed for the
sale of intoxicating liquor subject to section 13 of
the said Act which failed. The matter was first heard
in the Circuit Court, where the application was
refused and subsequently brought on appeal to the
High Court. A notice of intention to make the appli
cation referred to a plan lodged therewith. A copy of
the plan was lodged with the Superintendent of the
Gardai, supposed to be in compliance with section
X 5
(3)' 00- Objection was taken by the ground
landlord, other residents and publicans in the neigh
bourhood. The Circuit Court judge refused the
application on the ground that the premises were
unsuitable. A new set of plans were presented at the
appeal, but objection was taken that these had
not been deposited with the Superintendent of the
Gardai as required by section 15 (3),
(c).
The
applicant had failed to notify the Superintendent
that the plans were not similar to those lodged
with the original application, furthermore they did
not come to the notice of the Superintendent until
after the appeal had been opened. The provisions
of the section referred to are mandatory and failure
to comply therewith is fatal to the application. The
purpose of depositing a copy of the plan with the
Gardai is to enable the Superintendent to consider
the proposed alterations and assist the Court by
objecting to the application in a proper case. So
held by Murnaghan J. In the Matter of the Licensing
Acts 1883 to 1960 and the Intoxicating Liquor
Act 1960 Sections 15 & 13 and Courts of Justice
Acts.
Rookes v. Barnard and others
The House of Lords reversing the Court of appeal
and confirming the judgment of Sachs J. held that
the respondents had committed the tort of intimi
dation and they were not protected by the Trade
Disputes Act 1906, but the House ordered a new
trial on the question of the £7,500 damages only. The
appellant was employed by B.O.A.C. as a skilled
draftsman in the drawing office. He was a member of
a Trade Union to which all employees in that office