306 / 336
words complained of were used they were true
in
substance
and
in
fact. The
defendrnt
also pleaded that the occasion was privileged as he was
at the time involved in negotiations in regard to a
merger of certain co-operative creameries.
At the conclusion of the case for the plaintiffs, fol-
lowing legal submissions, Mr. Justice Griffin granted
a direction in favour of the defendants. He upheld the
decision of the Circuit Judge and dismissed the appeal
with costs to the Defendants.
(Murphy v Cronin—CJork High Court on Cir-
cuit—Griffin J.—unreported).
In a malicious injury claim, where damage to a
mine was caused the applicants can only recover
the actual damage sustained but cannot recover
any consequential damages.
Case Stated by Circuit Judge Fawsitt under S.16 of
the Courts of Justice Act 1947 upon the following facts:
Early on 3rd July, 1971, six armed men raided the
Mogul Mines, near Silvermines, Co. Tipperary, and
overpowered security men. The raiders placed ex-
plosive charges under the main electrical transformer,
and detonated it, causing serious damage and closing
the mine for a time. The amount of the damage
amounted to £29,218 and there was consequential
damage amounting to £220,000. The damage was caused
maliciously and the persons who caused it constituted
an unlawful assembly. The applicant mining company
Mogul (Ireland) Ltd., therefore claimed a total of
£249,218. The respondent County Council argued that
the consequential damages were not recoverable and a
Case was stated for determination by the Supreme
Court.
The majority of the Court
(Budd, Henchy End
Griffiin JJ.
p e r
Henchy J.,
held that these consequen-
tial damages were not recoverable. This principle h fd
already been determined by 4 out of 5 Judges of the
Supreme Court in
Smith v Cavan and Monaghan
County Council—
(1949) I.R.322, in construing S.135
of the Grand Jury (Ireland) Act 1836, hereinafter call-
ed the 1836 act, and in that case, James Murnaghan J.
had fully reviewed all the preceding authorities.
A decision of the Supreme Court—he
it
the pre-
1961 or the post-1961 Court—given in a fully
argued case and on a consideration of all the
relevant materials should not normally be over-
ruled, because a later Court inclines to a different
conclusion.
Even if the later Court is already of opinion that an
earlier decision is wrong, it may decide in the interests
of justice not to overrule it, if it has been inveterate.
The applicants have not shown that the decision in
Smith's
case was clearly wrong, and that it required
to be overruled. In the alternative, applicants argue
that the consequential loss may be recovered under S.I
of the Malicious Injuries (Ireland) Act 1853. The Mal-
icious Injuries (Ireland) Act 1848 had extended the
1836 Act to certain cases of damage sustained by
means of certain other unlawful, riotous or tumultuous
acts therein mentioned, and the 1853 Act is an ex-
tension of these cases. The 1848 Act states that all dam-
ages sustained under that Act are to be recovered in
the same manner as under the 1836 Act for the re-
covery of compensation for losses or damages. It is
clear that the 1853 Act was using the word "compen-
sation" to connote only what was recoverable under S.
135 of the 1836 Act, and "all damages" means damages
suffered with out monetary reduction. It follows that
the County Council is only liable for payment of the
sum of £29,218 to the applicants.
The minority of the Court
(O'Higgins, C. J. and
Walsh J.
per
O'Higgins G. J.,
having considered Mr.
Justice Kingsmill Moore's judgment in
Attorney Gen-
eral v Ryan's Car Hire Ltd.
(1965) I.R. 642, in which
he stated that the Supreme Court is no longer bound
by the principle of "Stare Decisis" felt nevertheless
bound to follow the decision of the former Supreme
Court in
Smith's
case (1949) that consequential dam-
ages were not recoverable under S.135 of the 1836 Act.
In considering however the wording under S.l of
the 1853 Act mentioning
"all damages which shall
be so sustained by any person or persons by
means of any such unlawful acts or offences shall
and may be recovered",
there is nothing to qualify
or modify the word "all". Consequently there is an
intention not merely to cover physical damage to the
property involved, but also consequential losses sus-
tained by the injured person. Consequently the appli-
cants could recover consequential loss under the 1853
Act.
(Mogul of Ireland Ltd. v Tipperary North Rid-
ing County Council—Full Supreme Court—Sepa-
arate majority judgment by Henchy J. and minor-
ity judgment by O'Higgins C. J.—unreported—
14th November, 1975.
The Arbitrator under the Assessment of Compensation
Act 1919 had correctly decided the date of
the Notice
to Treat, and he should have regard to the Inspectors
transcript that the Mini:ter could alter a particular
zoning from agricultural to residential development.
The Compulsory Purchase Order authorised Dublin
Corporation to acquire compulsorily lands belonging to
the claimant, Murphy, including 73 acres which the
development plan designated for agriculture, and which
accordingly could not be used for building, save with
the consent of the Minister, under S.26(3) of the
Planning and Development Act 1963, The Compulsory
Purchase Order was confirmed by the Minister follow-
ing a public inquiry on 7th January, 1969. On 25th
March, 1969, the claimant instituted High Court pro-
ceedings to have this Order declared invalid, but on
1st March, 1973, the High Court found the Order
valid. Then Dublin Corporation served a Notice to
Treat, followed by a Notice of Intention to enter and
take possession of the lands. The claimant, having
appealed to the Supreme Court, sought an interim
Order, restraining the Corporation from entering the
lands, but the Corporation gave an undertaking not to
enter the lands, meanwhile. In April, 1974, the Supreme
. 2 9 9