The Gazette 1975

Recent Irish Cases

Defendant Bank's appeal attempting to show

words "Refer to drawer" are not malicious fails.

Plaintiff's verdict for libel upheld.

Appeal in libel action against verdict of Pringle J.

and jury in favour of plaintiff in March, 1972. The

plaintiff brought the action against the defendant Bank

in respect of their refusal to pay certain cheques drawn

by him on them as his bankers, which cheques were

marked "Refer to drawer". The defendants admitted

that they had refused to pay the cheques to the plain-

tiff customer, and had marked them "Refer to drawer";

but contended that these words were not defamatory!

The defendants falsely alleged that at the time each

cheque was presented, the plaintiff did not have funds

in his account sufficient to meet the same. The follow-

ing were the facts: —

(1) The plaintiff was a building contractor, and in

1970, a bank strike had stopped all banking operations

in the State, but not in Northern Ireland. The plain-

tiff as an employer was very concerned with the pay-

ment of his employee's wages; he had an account in

the Belfast branch of the Bank of Ireland. His bro-

ther, who was in the business, had his banking account

with the defendants who were not involved in the

strike. The plaintiff drew a cheque for £600 on the

Bank of Ireland, Belfast, in favour of his brother, for

the purpose of paying wages.

(2) Owing to some mistake in the operations be-

tween the two Banks, the cheque was transmitted from

Belfast to Dublin "to wait collection by the plaintiff's

brother", instead of annulling it. On 21 August 1970,

the plaintiff went personally to defendant's Bank, and

agreed to all the formalities in order to open an account

there, and made an initial deposit of £3,000. Then the

Manager mistook the plaintiff for his brother, and

handed him £600 in cash.

(3) In accordance with banking practice, the plaintiff

made many lodgements and withdrawals, and on 6th

November, 1970 he received a "Statement of Verificat-

ion" from the defendant showing that £1,776 was out-

standing to his credit.

(4) In November, the inspectors of the defendant's

Bank discovered that £600 was still missing from the

Cheques Remitted Account, and, as the result of ex-

hausive inquiries which went on until the end of Jan-

uary, 1971, the defendants discovered that they had

paid the plaintiff £600 in August, 1970.

(5) The defendants felt that they were entitled to re-

cover the £600 from the plaintiff, but at that time, the

plaintiff had not sufficient funds in the Bank to meet

this sum. The manager tried in vain to telephone him

on 28 January but could not do so, as he was ex-direc-

tory. The manager there and then decided to dishonour

the plaintiff's cheques and to have them marked "Refer

to drawer".

(6) The plaintiff was contacted by another person,

who alleged that plaintiff's cheque had been dishon-

oured. The plaintiff went with his accountant to de-

fendant's Bank, and had a stormy interview with the

manager. The plaintiff produced a Bank statement,

which showed he had a credit. The manager foolishly

referred to the £600 which had to be debited to his

account, but the plaintiff would not agree to this, and

said he would settle directly with his brother; the mana-

ger suggested he had offered to facilitate the plaintiff.

(7) At the trial, plaintiff's counsel maintained that,

if the plaintiff had received the £600 i

August, this

was an occasion of qualified privilege, and consequently

the. plaintiff had to show that the defendants were^

actuated by a malicious improper motive, which was to

punish the plaintiff for the trouble and anxiety he had

caused to all concerned; furthermore the defendants

never attempted to write to the plaintiff, nor did they

apologise for their drastic action.

(8) The jury, in answer to questions, stated:'—

(a) that the plaintiff did receive £600 from the de-

fendants on August, 1970.

(b) That the defendants were actuated by gross mal-

ice in returning to the payees the cheque marked "Refer

to drawer".

(c) That the words "Refer to drawer" were de-

famatory of the plaintiff.

Th ey accordingly assessed total damages at £2,159.

(9) Defendants' counsel has attempted to submit an

appeal that the burden of establishing malice lay on the

plaintiff, and, as a proposition of law plaintiff's counsel

agreed. Defendant's counsel then said that the findings

by the jury of malice were unreasonable and perverse;

he said it was not open to the jury to consider this,

however he failed to follow the well-established rule

that a Court of Appeal will not entertain an objection

to the question put to the jury at the trial, if the

objection was not taken at the trial. Although counsel

for the defendants had agreed, as shown by the trans-

script, that the question of malice could be introduced

and left to the jury, they are not in a position on ap-

peal to deny this. The appeal is accordingly unani-

mously dismissed.

(Grealy v Bank of Nova

Scotia—Supreme

Co u rt

(O'Higgins, C. J., Budd and Henchy J. J.) per the

Chief Justice — unreported — 11 April, 1975.

The jury must be satisfied beyond reasonable

doubt of the guilt of the accused. The term

"satisfied" by itself is not the same thing as "sat-

isfied beyond reasonable doubt".

The accused were tried in the Central Criminal

Court before Murnaghan J. and a jury; they were

charged that in August 1970, they caused grievous

bodily harm; and that they maliciously inflicted bodily

harm on Patrick Rhatigan; they were convicted on

the second count.

Wh e n the accused entered Rhatigan's flat, he was

so. frightened that he jumped through a window, and

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