The Gazette 1991

g a z e t t e

a p r i l 1991

the "difference of opinion" one

regrets that Costello J did not ex-

amine the contract in any detail nor

explain why he preferred Finlay P's

finding. Since no clause of the agree-

ment in terms excludes a set-off and

since, as Lord Salmon has pointed

out, mere provision for payment

cannot in itself rule set-off out, why

precisely did he find that the parties

must have excluded this

right?

One other aspect of

Rohan

Construction

perhaps deserves com-

men t: the application by the

defendant for a stay under 0.42, r.17.

Costello J refused t h is after

considering what he stated

were the

principles laid down in

Agra Trading

-v- Minister for Agriculture

With

all respect,

Agra Trading

was hardly

in point, since the defendant there

applied not for a stay but for a

plenary hearing. Barrington J's

judgment is concerned wi th the

intrepretation of and relationship

between 0.19 r.2 and 0.37.r.6; at no

point did he refer to 0.42 r.17. Clearly

the question of whether it is appro-

priate to send a motion for final

judgment to plenary hearing is quite

different from whether a stay should

be placed on j udgmen t; it is

impossible to k n ow wh e t h er

Barrington J. in

Agni Trading

Would

have grated a stay if asked. Costello

J did not, it seems, consider Murphy

J's statement in

Hegarty

that had he

not given leave to defend he would

without hesitation have granted a

stay under 0.42 r.17.

Surely

Hegarty

rather than

Agra Trading

was the

appropriate authority?

Conclusion

Having entered t h is maze of

conflicting views, is there a

way

out

again? The test laid down in

John

Sisk -v- Lawter

is,

on the face

it,

better guide that

the speeches in

Gilbert-Ash

; yet it is submitted, the

attitude of

the Law Lords, and of

Murphy J in

Hegarty

that the kind

of language

relied on

by Finlay P. is

too ambiguous to exclude the right

of set-off is the correct method of

applying that test. One may regret

that no party has appealed any of

the relevant judgments to the

Supreme Court: when the matter

does reach them it is submitted

that while they should approve the

John Sisk

test, they should like

Murphy J be extremely wary of

using it to find an exclusion of set-

off in the absence of very clear

language.

NOTES

1. See

Rohan Construction

-v- Antigen

Ltd.

[1989] I.L.R.M. 7 83 at 784.

2 . [1989] I.L.R.M. 783.

3 . [1985] I.R. 524.

4 . Finlay R unreported, 15th November,

1976.

5. [1958] 2 Q.B. 9.

6 . [1971] 1 W.L.R. 1205. [1971] 2 All

E.R. 1389.

7 . [1971] 1 W.L.R. 1205 at 1209 [1971]

2 All E.R. 1389 at 1393.

8 . [1974] A.C. 689.

9 . Viscount Dilhorne, Lord Diplock and

Lord Salmon.

1 0 . [1974] A.C. 6 89 at 722.

11. See [1974] A.C. 6 8 9 at 723.

1 2 . See [1974] A.C. 6 89 at 718.

1 3 . See [1974] A.C. 6 89 at 703.

1 4 . See [1974] A.C. 6 89 at 719.

1 5 . At p. 8 of his unreported Judgment.

1 6 . (See [1974] A.C. 6 8 9 at 723.

1 7 . An extract from the relevant Clause

is helpfully set out in the case note

Hegarty -v- Royal Liver Friendly

Society

in Lyden and MacGrath

"Irish Building and Engineering Case

L aw" at p.358.

1 8 . See [1974] A.C. 6 89 at 726.

1 9 . [1985] I.R. 5 24 at 528.

2 0 . Barrington J. Unreported, 19th May,

1983.

Viewpoint

- Contd. from p. 99

It is sometimes said of the British

that they find it difficult, in matters

affecting the Irish, to learn from

t he ir mi s t akes. The ir r ecent

insistence on derogating from the

European Convention on Human

Rights to enable them to keep in

their law the 7 days detention

period contained in their Prevention

of Terrorism Act, following a finding

in the

Brogan

case t hat this

breached the Convention, and their

subsequent decision to put a new

Prevention of Terrorism Act on the

s t a t u te books wo u ld t end to

support that view. It is to be hoped

that, in matters of such importance,

affecting the liberty of the subject

and going to the heart of our

criminal justice system, the worst

we will ever be accused of in this

country is lethargy or, perhaps,

even incompetence, and that, there

will not be serious cause for regret

at the failure to implement the

necessary procedural reforms in

this important area.

•

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