The Gazette 1991

GAZETTE

JULY/AUGUST

1991

he sustained in the explosion, he was a

person of unsound mind within the meaning

of s.49. A large amount of medical evidence

was given

as.to

the plaintiff's mental con-

dition since the explosion. In addition to

challenging the assertion that the plaintiff

was of unsound mind, the defendant argued

that s.49 only applied to a person who was

of unsound mind prior to the incident giving

rise to the proceedings. HELD by Barron J

determining that the claim was not statute

barred: (1) where there was a conflict of

evidence between the medical witnesses,

the evidence for the plaintiff was more

convincing and on this basis it had been

established that the plaintiff was of unsound

mind, in that he was now a person in the

mildly mentally handicapped class; (2)

having regard to the normal meaning of the

words used in s.49 of the 1957 Statute, its

terms applied to a person who was of

unsound mind at any time on the date when

any right of action accrued, and it was not

confined to persons who were of unsound

mind before the date on which the cause of

action accrued.

Kirby -v- Leather

[1965] 2

QB 367 discussed.

O'GRADY (INSPECTOR OF TAXES) -V-

L ARAGAN QUARR I ES LTD H I GH

COURT 27 JUNE 1990

Revenue — Income Tex — Construction

oporetlone — Deduction at source —

Haulage of quarry materials — Hauliers

entering Into agreements by wh i ch they

became owners of quarry materials —

Whether haulage for hire — Finance Act

1970. s.17 - Finance Act 1976, s.21.

A number of road hauliers entered into

agreements with the respondent company

by which they agreed to sell quarry materials

to the respondent and also agreed to

transport the material to the destinations

specified by the respondent. The rate per ton

of material was to be paid by the respondent

together with the supply of all necessary

fuel. All materials were to be purchased from

another company, Hanley Bros Ltd, with

which the respondent was associated. The

hauliers entered into a simultaneous

agreement with Hanley Bros Ltd by which

all sums owed to Hanley Bros Ltd for the

purchase of quarry materials be deducted

from the amount owed to the hauliers by the

respondent for the supply of quarry

materials. The hauliers who regularly

collected quarry material from Hanley Bros

Ltd, were debited with the cost and then

delivered the material to customers of the

respondent. At the end of each month, the

respondent prepared an account in which

the cost price of the material due to Hanleys

was debited against the sale price payable

by the respondent and a cheque for the

balance was paid to the hauliers. The

respondent conceded that this cheque

represented the total of the transport

charges involved. The inspector argued that

the payments were made in respect of

'haulage for hire of materials for use in

construction operations' and that, pursuant

to s.17 of the 1970 Act (as inserted by s.21

of the 1976 Act), a deduction of 35% should

have been made át source and forwarded to

the Revenue. In the Circuit Court, it was held

that the payments did not come within s.17.

On a case stated HELD by Murphy J: (1)

while the Court should attempt to ascertain

the substance of a contract, it should not

ignore the actual bargain between the

parties by substituting an agreement more

in harmony with the commercial realities of

the situation; and while the parties own

labels will not determine the outcome, the

transaction itself must be examined.

Gatien

Motor Co Ltd -v- Continental Oil Ltd

11979]

IR 406 applied.

Dicta

Irish Shell & BP Ltd

-v- J Costello

Z.ft/11981]

ILRM 66 explained;

(2) having regard to the clear terms of the

agreements entered into between the

hauliers and the respondent, there was no

reason why it should not take effect as such;

and in this light the parties had deliverately

arranged that the relationship between them

should not in law constitute a hiring, so that

s.17 of the 1970 Act (as inserted by s.21 of

the 1976 Act) did not apply.

PARAMOUNT PICTURES CORP AND

ORS -V- CABLELINK LTD HIGH COURT

8 MARCH 1990

Injunction — Interlocutory — Stateable

caee — Balance of convenlenco —

Whether damagea adequate remedy —

Breach of copyright — Transmission of

films through cable TV and microwave

d i s t r i b u t i on ( MMD S) s y s t ems

Whathar Injunction required — Deposit

of sums pending trial of action —

P r a c t i ce — De f e n ce — Wh a t h ar

sustainable — European Communities —

Abuse o f dominant position — Treaty of

Rome (1957), Articles 85, 86.

The plaintiffs were companies holding the

copyright in numerous films; the defendant

was a company which operated a cable

TV system principally in Dublin. The

plaintiffs claimed injunctions and damages

from the defendant on the basis that the

defendant breached the copyright in the

films by transmitting them on the cable TV

system without paying the plaintiffs the

appropriate royalties. On the plaintiffs'

original application for interlocutory in-

junctions, the principal defence was that the

plaintiffs were acting in breach of Articles

85 and 86 of the Treaty of Roma At the

hearing of that application, an interlocutory

injunction was refused but the order of the

Court required the defendant to lodge a

certain percentage of its income from the

cable system in the bank account to meet

any claim which the plaintiffs might

establish. This condition was complied with.

The plaintiffs renewed their application for

an interlocutory injunction. The plaintiffs

raised the fact that the defendant was now

planning to transmit material through a

multi-point microwave distribution system

(MMDS) in addition to the cable system.

They also argued that the defendant could

not rely on any new defences (which now

included,

inter alia,

constitutional challenges

to copyright legislation) and were confined

to the defence based on Articles 85 and 86

of the Treaty of Rome, which the plaintiffs

argued did not disclose an arguable defence.

HELD by Murphy J declining to alter the

previous order made: (1) the fact that the

defendant was now relying on new grounds

of defence could not be used to cast doubt

on the strength of its case, and they should

be considered on their merits; and since the

plaintiffs did not suggest that these new

grounds were themselves unsustainable, the

defendant would be permitted to rely on

them; (2) the defence based on Articles 85

and 86 of the Treaty of Rome should, like all

other defences, be considered on its merits,

without expressing a view on whether it

would ultimately be successful; and in the

instant case it would not be struck out since

it disclosed an arguable' case that the

plaintiffs were abusing their position by

treating the defendant less favourably than

companies in other EC countries.

Dicta

British Leyland Motor Córp Ltd-v- Armstrong

Patents Co. Ltd.

[1981] 2 CMLR 75 applied;

(3) the question as to whether the, proposed

use of the MMDS systerf) raised néw issues

in the instant application should be Judged

against the background of the general

principles applicable in interlocutory applica-

tions; and having regard in particular to the

question of the adequacy of damages if the

plaintiffs were ultimately successful, the

deposit of a specified amount 'bf the

defendant's income was sufficient to meet

the full justice of the case.

Campus Oil Ltd

-v- Minister for Industry and Energy (No 21

[1983] IR 88 applied; (4) the amount

required to be placed on deposit by the

defendant was not excessive, but having

regard to the fact that it now amounted to

a very substantial sum in total, the parties

might arrange to have it invested in

Government securities or some other

procedure to protect their interests.