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Index to Recent Irish Cases — 1980
(Cases refer to issue of Gazette where case is listed on Green Pages — No numbering of Green Pages)
In Re Section 25 of the Trade Marks Act
1963 —
Arby's Ltd. Applicants.
Additional evidence from the applicant is
not admissible in the High Court on
appeal from the Controller of Patents,
Designs and Trade Marks under S. 25 of
the 1963 Act. The High Court in such
proceedings is an Appellate Court, and
not a Court at first instance. The Supreme
Court unanimously reversed Hamilton J.,
who had admitted an additional affidavit
in order to prove that the applicant had
intended to use the trade mark in the State
— MARCH.
Bank of Ireland v. Lyons. Order made by
Master of the High Court limiting costs to
outlay and Counsel's fees and to salaried
members of the legal staff of the Bank.
Finlay
P.. having
considered
the
authorities in detail, held that the Order
made by the Master must be varied. An
order must be entered by which final
judgment be entered for the Plaintiff with
default costs, plus costs for hearings —
MAY.
Cleary v. Coffey. The Plaintiff was owner of
licensed premises in Inchicore. He was
also one of the executors who was entitled
to one twelfth share of the residuary estate
of a deceased publican who had licensed
premises on Malahide Road. The premises
in Malahide Road were sold to administer
the estate of deceased. The employees in
Malahide Road were paid full redundancy
payment, but they also claimed further
"Disturbance Claims Payments" as a
custom of the licensed trade. The Plaintiff
brought proceedings against the employee
defendants for an interlocutory injunction
to restrain the picketing of her premises in
Inchicore, on the grounds that there was no
trade dispute there.
McWilliam J. held: (1) That there was a
trade dispute between the deceased
publican and his successors in title. (2)
However, there was not at any time any
business connection between the premises
in Malahide Road and in Inchicore. There
was
consequently
no
discernible
connection between the Inchicore premises
of the plaintiff and the trade dispute which
would justify the Inchicore picketing.
Interlocutory injunction granted —
NOVEMBER.
Crowley v. Ireland, the Minister for
Education, and INTO. Strike by INTO in
Drimoleague National Schools from
March 1976. Restricted teaching and,
from January 1978, pupils transferred to
neighbouring
schools.
The
plaintiff
parents contended that their children had
a constitutional right to be provided with
free primary education in their parish. The
full
Supreme Court
upheld McMahon J.
in the High Court that the INTO were
carrying on this strike for the purpose of
infringing the constitutional right of the
children to primary education, that this
was a conspiracy and consequently
actionable.
The Majority of the Supreme Court,
Henchy J., Griffin J., and Kenny J. per
Kenny J.)
held
that, as Article 42 (4) of
the Constitution stated that the State shall
provide for
free primary education, the
evidence had failed to establish that there
had been a breach of constitutional duty
on behalf of the State. The obligation on
the State, under Article 40 (3), to defend
and vindicate the rights of the citizens is
not a general one, but only an obligation
to defend these rights by its laws enacted
by the Oireachtas.
The Minority of the Supreme Court
(O'Higgins C.J. and Park J.)
upheld
McMahon J. in the High Court in stating
that the duty imposed by the State under
Article 42 (4) was a continuing one, and
that consequently the Minister should
have acted to stop the strike. The strike
had been exercised for the purpose of
infringing the constitutional right of the
children to obtain free primary education.
Action against the State, the Minister
for Education and the Attorney General
dismissed.
Action against INTO upheld — JUNE.
D.P.P. v. John OToughlin.
Accused
convicted of larceny of a muck-spreader
in Circuit Court. Accused first denied this
in one Garda Station, but subsequently
admitted it by written statement in
another.
Held
by the Court of Criminal
Appeal:- (1) That the delay in charging
him formally was only occasioned by the
necessity for the Gardai to check his
story.
(2) That the appellant ought to have
been charged, although this had not been
done, after his story had failed to check
out.
(3) The question was not whether the
claim of right that the accused was
entitled to take the muck spreader because
the owner could not pay his debts, was
one known to the law, which the Circuit
Judge adopted, but rather whether the
accused had an honest belief which would
excuse his action. As the Judge had
declined to put this matter before the jury,
there was a miscarriage of justice.
Conviction quashed — MARCH.
Di Murro v. ChOds. Plaintiff was tenant of
restaurant and ice cream business in Fair
Green, Arklow, under a Lease for a term
of 10 years from 1 January 1977. The
Plaintiff claimed the Lease included a yard
with a store and shed at the rere of the
shop. The Court looked at the history of
the premises and the surrounding
circumstances leading to the execution of
the Lease.
Held
by McWilliam J. that
what was demised to the Plaintiff was the
same as had been let in earlier agreements,
namely the shed and store and use of the
yard — NOVEMBER.
Duffy v. Doyle and the Attorney General.
Testator had left to his wife "an average
of £1.500 per year", and £500 for
Masses in the Parish of Bray; he died in
April 1976. Construction Summons by
Executor Plaintiff as to the meaning of
these terms against first defendant, widow
of testator.
McWilliam J. held:
(1) That the testator's estate was to be
applied during the life of the widow on
trust to provide her with an income of
£ 1.500 per year, and that capital might be
applied for that purpose.
(2) That the gift of the residue to Bray
Parish was a valid charitable gift and that
the matter would stand over until the
death of testator's widow, and that the
remaining funds would be applied for that
purpose at that time — MARCH.
Dundalk Shopping Centre Ltd. v. Roofspray
Ltd. In 1974, the PlaintifTs were
constructing
a shopping centre in
Dundalk. The defendants described
themselves as specialists in the Shell
Monoform system of roofing. Although
the estimate was accepted in April, the
Defendants only commenced work on 24
September
1974.
The
Defendants
continued to work irregularly until 13
November 1974. Then the Plaintiffs
repudiated the contract and engaged
another contractor who laid an alternative
asphalt roof. The Defendants complained
that, during their absence, extensive
damage had been done to the roof. On 9
November 1974, a major leak occurred
through the roof: as a result, the Plaintiffs'
Architects advised them to engage
another contractor.
Finlay P.
held:
(1) That the change in the
fall of the roof was not unknown to the
Defendants
before
operations
commenced.
(2)
That
the
Defendants
held
themselves out to be specialists in roofing
insulation.
(3) There was an implied term that the
Defendants would use reasonable care
and skill in their work.
(4) The Defendants had failed in a
fundamental term of the contract, namely
to provide an effective waterproofing of
the roof.
(5) Accordingly, the Plaintiffs were
justified in repudiating the contract, and
were
entitled
to
Damages
JULY/AUGUST.
Finnegan v. Planning Board. Plaintiff
objected to constitutionality of Sections
15. 16 and 18 of the Planning Act 1976.
Plaintiff lived four miles from Raybestos
Manhattan plant in Co. Cork, and was
held to have sufficient standing to have
locus standi. Section 15
provided for the
lodgment by an appellant to the Planning
Board of a deposit of £10.
Held
by the
Supreme Court that the purpose of
imposing this deposit was to prevent
appeals
which
lacked
reality
and
substance and that there was no
unconstitutional discrimination involved.
Section 16
gave a discretion to the Board
as to whether the appeal should be heard
orally or otherwise.
Held
that this
submission was fallacious insofar as it was
open to the Oireachtas to prescribe that
procedure.
Section 18
allows the Board, if
it considers the appeal vexatious or
unnecessarily delayed, to determine the
appeal upon giving seven days' notice and
without hearing submissions from the
appellant.
Held
that this Section enjoyed a
presumption of constitutionality, and that
it had to be assumed that the notice would
be accompanied by an opportunity given
to the defendant to put forward his case.
Appeal dismissed — MAY.
Frigoscandia Ltd. v. Continental Irish Meat
Ltd. and Crowley. The Plaintiffs sold a
refrigerating machine for a price to be
paid in four instalments commencing with
the placing of the order and ending when
the machine was ready to operate. The
machine was duly installed, but 25% of
the purchase money remained unpaid by
the first defendant, when the second
defendant was appointed Receiver. The