The Gazette 1991

GAZETTE

JANUARY/FEBRUARY 1991

Recent

Irish

Compiled by

Raymond Byrne,

B.C.L., llm., b.l,

Lecturer in Law, Dublin City

University

The following case summaries have been

reprinted from the

Irish Law Times and

Solicitors Journal,

with the kind permission

of the publishers.

BREEN -v- MINISTER FOR DEFENCE

SUPREME COURT 20 JULY 1990.

DEFENCE FORCES -

PENSION

TERMINATION ON FOOT OF AWARD IN

PERSONAL INJURIES ACTION - WHETHER

INJURIES SUFFERED CONSTITUTED

WOUND

WHETHER

MINISTER

EXERCISED DISCRETION TO TERMINATE

PENSION ULTRA VIRES - WHETHER

UNREASONABLE - Army Pensions Act

1923, s.13(2) - Army Pensions Act 1927,

s.3(1).

The applicant had been a member of the

Defence Forces. By virtue of a road traffic

accident in an Army vehicle, the applicant

suffered severe personal injuries, and in a

subsequent claim recovered £60,000

damages, though a large portion of this

award went to meet debts of the applicant

and to meet solicitor and client costs. In the

meantime, the applicant had been awarded

a disability wound pension under the 1923

and 1927 Acts. The Minister, after lengthy

correspondence with the applicant's

solicitors, purported to terminate the appli-

cant's wound pension, pursuant to his

powers under s.13(2) of the 1923 Act, as

amended by s.3(1) of the 1927 Act. In the

High Court, O'Hanlon J declined to grant

judicial review of the Minister's decision:

[19881 IR 242. On appeal by the applicant

HELD by the Supreme Court (Finlay CJ,

Hederman and O'Flaherty JJ) allowing the

appeal: (1) a wound pension could be abated

under the 1923 and 1927 Acts even where

such wound was not sustained on active

service; (2) while the courts would not

interfere with an administrative discretion

merely because the courts might have

reached a different conclusion, nonetheless

the Minister in the instant case would not

appear to have responded to the representa-

tions made on the applicant's behalf as to

why the pension in the instant case should

not have been abated; and although a

decision of this kind did not in all cases

require a reasoned judgment, the Minister's

decision was ultra vires for unreasonable-

ness, on the basis that it appeared not to

have taken into account the individual

circumstances of the applicant, and

accordingly the Minister's abatement of the

pension would be quashed.

The State

(Thornhiii) -v- Minister for Defence

11986]

IR 1 discussed. Dicta in

The State (Keegan)

v- Stardust Victims Compensation Tribunal

[1987] ILRM 202; [1986] IR 642 applied.

Sembie:

the Minister would have been

clearly right if he had taken into account half

of what had been awarded in the applicant's

damages claim.

BULA LTD AND ORS -v- CROWLEY AND

ORS SUPREME COURT 29 JUNE 1990

PRACTICE - DISCOVERY - PRIVILEGE -

LEGAL PROFESSIONAL - WHETHER AFFI-

DAVIT MUST LIST INDIVIDUAL DOCU-

MENTS FOR WHICH PRIVILEGE CLAIMED

- DISCOVERY OF COMMUNICATIONS

MADE AFTER COMMENCEMENT OF

PROCEEDINGS - PURPORTED EXCLUSION

OF DOCUMENTS AS IRRELEVANT - Rules

of the Superior Courts 1986, 0.31, rr.12, 13.

The plaintiffs instituted proceedings against

the defendants which involved,

inter alia,

claims of negligence and breach of duty in

connection with lending transactions made

between the defendants and the plaintiffs.

The proceedings were instituted in 1986 and

they related to transactions made between

the defendants and the plaintiffs. The pro-

ceedings were instituted in 1986 and they

related to transactions dating back to the

early 1970s and continuing thereafter. In the

course of the proceedings, an affidavit of

discovery filed on behalf of one of the

defendants claimed legal professional

privilege in respect of certain documents

without identifying the precise documents

in question. Another defendant also resisted

discovery in respect of communications

generated after the institution of the pro-

ceedings. Finally, discovery was also resisted

in respect of certain documents relating to

loan transactions made prior to 1974.

Another defendant had acknowledged, in a

previous affidavit of discovery, the relevance

of pre-1974 documents to the proceedings.

HELD by the Supreme Court (Finlay CJ,

Griffin and O'Flaherty JJ): (1) whatever the

practice may have been in the past, privilege

could not be claimed in a blanket manner in

an affidavit of discovery, and the appropriate

form under the 1986 Rules was to identify

each document in question and the parti-

cular basis on which privilege was claimed.

Bula Ltd. -v- Tare Mines Ltd

(Supreme Court,

5 February 1990) and

Smurfit Paribas Bank

Ltd. -v-AAB Export Finance Ltd.

[1990] ILRM

588 applied; (2) while a court should be

satisfied as a matter of probability of the

relevance of documents to the proceedings

and in particular should not allow a party to

indulge in an exploratory or fishing expedi-

tion in seeking further discovery, there was

sufficient indication from the statement of

claim that documents generated after the

institution of the proceedings could be

relevant; (3) since the relevance of

documents concerning loans given by the

defendants to the plaintiffs prior to 1974 had

been acknowledged already by another

defendant, and having regard to the wide

ranging nature of the claim in the proceed

ings, such documents were discoverable.

W.J. PRENDERGA8T & SON LTD.

-v- CARLOW COUNTY COUNC IL

SUPREME COURT 30 MAY 1990

PRACTICE - SUPREME COURT - APPEAL

- WHETHER APPEAL LIES - MALICIOUS

INJURIES - CIRCUIT COURT HEARING -

APPEAL TO HIGH COURT ALLOWED -

WHETHER APPEAL BY WAY OF CASE

STATED LIES TO SUPREME COURT -

WHETHER APPEAL ON POINT OF LAW LIES

TO SUPREME COURT - Courts of Justice

Act 1936, ss.38, 39 - Malicious Injuries Act

1981, ss.17, 18.

The applicant brought proceedings in the

Circuit Court under the 1981 Act seeking

compensation from the respondent Council.

The applifant was successful on the issue

of liability in the Circuit Court, but on appeal

to the High Court, O'Hanlon J held that

compensation was not payable under the

1981 Act (High Court,, 3 June 1988). The

applicant then purported to lodge an appeal

to the Supreme Court against the decision

of the High Court. The applicant also applied

to O'Hanlon J for a case stated to the

Supreme Court. O'Hanlon J held that no

case stated could lie having regard to the

terms of the 1936 Act. HELD by the

Supreme Court (Finely CJ, Griffin,

Hederman, McCarthy and O'Flaherty JJ):

neither an appeal on a point of law nor

appeal by way of case stated could lie from

the High Court in the circumstances of the

instant case, since the statutory scheme of

the 1981 Act indicated that it was subject

to the provisions of ss.38 and 39 of the 1936

Act, and this affirmed the finality of a High

Court decision in a Circuit appeal; but that

under the .terms of the 1981 Act it was

possible, by way of consultative case stated,

for a malicious injuries claim to be referred

to the Supreme Court either from the District

Court or from the Circuit Court.

F.(U.) (FORMERLY U.C.) -v- C.(J.)

SUPREME COURT 11 JULY 1990

FAMILY LAW - NULLITY - PARTY TO

MARRIAGE HAVING HOMOSEXUAL

ORIENTATION - OTHER PARTY UNAWARE

OF SUCH ORIENTATION AT TIME OF

MARRIAGE - WHETHER MARRIAGE A

NULLITY - WHETHER LAW RECOGNISES

INABILITY TO FORM NORMAL MARITAL

RELATIONSHIP AS GROUND FOR ANNUL-

MENT -

ORIGINS OF NULLITY

JURISDICTION OF COURTS - Marriage

Law (Ireland) Amendment Act 1870, s.13.

The petitioner entered into a ceremony of

marriage with the respondent in 1981. The

parties had had a sexual relationship prior

to their marriage, and their sexual relation-

ship continued for some time thereafter. By

1984, however, the respondent had begun

to use excuses to sleep in a separate

bedroom. The petitioner confided her prob-

lems to a woman friend who told her that

the respondent had been a homosexual for

many years. The petitioner sought a decree

of nullity on the ground that the respondent

was, by virtue of his homosexual nature,

unable to form a normal marital relationship.

In the course of evidence a psychiatrist

stated that the respondent was almost ex-

clusively homosexual, with occasional

heterosexual experiences. In the High Court

(24 May 1989) (1990) 8 ILT Digest 106,

Keane J dismissed the petitioner's claim for

a nullity decree. On appeal by the petitioner

HELD by the Supreme Court (Finlay CJ,

Griffin, Hederman, McCarthy and O'Flaherty

JJ) allowing the appeal: (1) the incapacity

of one of the parties to a marriage to form

or maintain a normal marital relationship

with the other party, by virtue of a homo-

sexual nature, is a valid ground for nullity;

and it was appropriate in this context for the

courts to use as an analogy the case law on