452 / 462
GAZETTE
JULY/AUGUST
1991
revealed the defects complained of; and the
plaintiffs were entitled to damages in respect
of these defects, as well as damagps for
discomfort which would arise principally
when the work on the defects would be
carried out.
HANAFIN -V- GAYNOR HIGH COURT 29
MAY 1990
Negligence — Solicitor — Purchese of
lend — Requisitions on title — Plennlng
permieelon — Defects resulting In
property being of diminished velue —
Whether plsnnlng permission properly
Investlgstéd by eolicitor — Test of
liability
The defendant, a solicitor, acted on behalf
of the plaintiff in connection with the pur-
chase of property in 1981 for £540,000.
Certain documents were furnished to the
defendant at contract stage, including a
1970 planning permission for a proposed
industrial building on the property. The
defendant processed requisitions on title in
connection with the property, which
revealed the existence of a 1973 planning
permission but which was stated not to
affect the property in question. After the
transaction was completed, the plaintiff be-
came aware of a 1972 planning permission
which severely affected the value of the
property, and the property was eventually
sold for £150,000 in 1985. The plaintiff
claimed damages in negligence and/or
breach of contract, primarily on the basis
that the defendant should have discovered
by means of proper requisitions on title the
existence of the 1972 permission. The
plaintiff also claimed that he had entered into
the contract on the basis of a representation
by the defendant that the property was
worth £1.2 million. HELD by Egan J dis-
missing the claim: (1) there was no evidence
that the defendant had to any time made any
representation to the plaintiff as to the value
of the property; (2) the defendant could only
be held liable in negligence if guilty of such
a failure as no other solicitor of equal status
and skill would be guilty of if acting with
ordinary care, unless the practice which the
solicitor was following had inherent defects
which ought to have been obvious to any
person giving the matter due consideration.
Roche -v- Pei/ow
[1986] ILRM 189; [1985]
IR 232 and
Dunne
-v-
National Maternity
Hospital
[1989] ILRM 735; [1989] IR 91
followed; (3) the defendant had prepared
proper requisitions on title in connection
with the purchase^ and the answers received
when the 1973 planning permission was
revealed gave no grounds for the defendant
to query its accuracy or to believe that there
was a 1972 permission in existence; and
having regard to the fact that a search con-
ducted by professional law searchers shortly
after the contract had been completed also
failed to reveal the existence of the 1972
permission, it could not be said that the
defendant was guilty of such failure as no
other solicitor of equal status and skill would
be guilty of if acting with ordinary care.
DIRECTOR OF PUBLIC PROSECUTIONS
-V- KENNY HIGH COURT 8 MARCH 1990
Criminal law — Road traffic — Driving
w i th Iaval of Intoxicant aa to bo In-
capabla of controlling vohlclo — Opinion
of modlcal practitioner aa to fltnoaa of
accuaod to drive — Presonca of modlcal
practltionar in polica station — Whether
In broach of accuaod'a right to privacy
- Road Traffic (Amendment) Act 1978, s.13
— Constitution, Article 40.3.
The defendant had been charged with
driving a mechnically propelled vehicle when
he was under the influence of an intoxicant
to such an extent as to be incapable of
having proper control of his vehicle, contrary
to s.49 of the Road Traffic Act 1961, as
amended. The defendant had been arrested
under s.49 and brought to a Garda station
where he consented to having a registered
medical practitioner take a blood sample No
analysis was made of this sampla At his trial
in the District Court, the defendant objected
to evidence being given by the medical
practitioner as to his opinion of the de-
fendant's level of intoxication. The objection
was on the ground that such evidence was
obtained in breach of the defendant's right
to privacy. On a case stated HELD by Barron
J: (1) the defendant had a right to privacy
while in police custody, but since the de-
fendant had not argued that there was an
abuse of s.13 of the 1978 Act, under which
the medical practitioner was in the Garda
station, the full nature of that right did not
arise in the present case; (2) where the
defendant had consented to the sample
being taken by the medical practitioner, it
was perfectly permissible for the doctor to
give evidence of his observation of the
defendant.
Kennedy -v- Ireland
[1988] ILRM
472; [1987] IR 587 referred to ;
dicta
in
Sullivan -v- Robinson
[1954] IR 161
distinguished.
GLAVIN -V- GOVERNOR OF TRAINING
UN IT MOUNT JOY PR I SON H I GH
COURT, 11 MAY 1990; SUPREME
COURT, 21 DECEMBER 1990
Constitution - Administration of justice
- Trial of offoncos - Failure to issuo
warrant continuing district justice In
office due to mistake as to his age -
Sub s equent l e g i s l a t i on v a l i d a t i ng
Justice's orders - Preliminary axamlna-
lon conducted prior to passing of
legislation - Whether null and void -
Whether trial conducted In due course
of law - Lapse of time - Whether
matter to bo remitted to District Court
- Criminal Procedure Act 1967, Part II -
Courts (No. 2) Act 1988 - Constitution,
Article 38.1
The applicant had been charged in 1986
with offences under the Larceny Act 1916,
as amended. He appeared before District
Justice Mahon, who conducted a
preliminary examination under Part II of the
1967 Act and sent him forward for trial in
the Circuit Court. There, the applicant
pleaded guilty and was sentenced to 10
years imprisonment. In 1987, the Court of
Criminal Appeal reduced this to 6 years. At
the time that District Justice Mahon
conducted the preliminary examination in
the applicant's case, he had in fact reached
retirement age, but due to a misundertanding
as to his correct age no warrant continuing
him in office had been issued under the
Courts of Justice (District Court) Act 1949.
The Courts (No. 2) Act 1988 purported to
validate retrospectively orders made by
District Justice Mahon, but without
prejudice to any constitutional rights which
might have been affected by his orders. The
applicant sought an inquiry and release
under Article 40.4.2 of the Constitution.
HELD by Hamilton P ordering his release:
(1) the preliminary examination conducted
by District Justice Mahon was null and void
and the Circuit Criminal Court thus had no
jurisdiction to try him. The
People -v- Boggan
[1958] IR 67 applied; (2) while the applicant
did not have a constitutional right to a
.prelimjpary examination, the applicant's trial
was not conducted in due course of law
within Article 38.1 of the Constitution, and
so the 1988 Act had not validated the
applicant's trial since it was enacted on the
express basis that the Oireachtas did not
intend to infringe any person's constitutional
rights.
Shelly -v- Mahon
[1990] IR 36
applied; (3) having regard to the fact that the
applicant had served over 3 years in prison,
it would be unjust and inequitable to return
the matter to the District Court and the
applicant would be released immediately. On
appeal by the respondents HELD by the
Supreme Court (Griffin, Hederman,
McCarthy, O'Flaherty and Keane JJ)
dismissing the appeal : (1) a trial in due
course of law within Article 38.1 of the
Constitution required compliance with steps
provided for in legislation, including those
which are required as preliminary to a trial
on indictment, and the applicant thus had
a constitutional right to have a preliminary
examination conducted by a District Justice
duly appointed in accordance with the
Constitution.
O'Shea
-v-
Director of Public
Prosecutions
[1989] ILRM 309; [1988] IR
655 discussed.
Quaere per
O'Flaherty J
(Hederman J concurring): whether it would
be constitutionally permissible for legislation
to be enacted which would remove the right
to have a preliminary examination prior to
trial on indictment; (2) since the 1988 Act
by its terms did not purport to validate any
orders made in conflict with constitutional
rights, it did not alter the invalidity of the
preliminary examination conducted in the
applicant's case, and since the return for trial
was null and void the applicant was entitled
to the relief sought.
Shelly -v- Mahon
[1990]
IR 36 applied; (3) once the applicant's
conviction had been found invalid, the High
Court must immediately order his release
and it was not within its competence to
consider whether the case should be
returned to the District Court, this being a
matter for the Director of Public Prose-
cutions.
ROHAN -V- BORD NA MONA HIGH
COURT 10 MAY 1990
Limitation of actions — Extsnalon of
tlmo — Parson of unsound mind —
Whsthsr sstabllshod In svidsncs -
Whsthsr axtsnslon applicable whars
Incldsnt giving rlss to proceodlngs
rasults in unsoundnass of mind — Statute
of Limitations 1957, s.49.
In February 1985, the plaintiff sustained
serious head and facial injuries as a result
of an explosion which occurred in the course
of his employment with the defendant.
Proceedings claiming damages against the
defendant were not issued until September
1988. The plaintiff claimed to be entitled to
an extension of the normal three year time
limit under s.49 of the 1957 Statute on the
ground that, by reason of the injuries which
iii