The Gazette 1991

GAZETTE

JULY/AUGUST. 1991

D.B. (D. O'R) -V- N. O R. SUPREME

COURT 13 DECEMBER 1990

FAMILY LAW - NULLITY - CONSENT -

WHETHER REAL OR APPARENT

PETITIONER HAViNG SPENT MOST OF HER

LIFE IN ORPHANAGE - WHETHER AWARE

OF CONSEQUENCES OF MARRIAGE -

DURESS AND UNDUE INFLUENCE

WHETHER ESTABLISHED - PREGNANCY

OF PETITIONER - DELAY - WHETHER

NULLITY DECREE SHOULD ISSUE

The petitioner was 16 years of age when she

married the respondent in 1966. At the time,

she had spent'most of her life in a convent

orphanage, in which she had been placed by

her parents. The petitioner regarded the nun

in charge as her mother. The petitioner had

met the respondent after she had begun her

first job. They had intercourse, and she

became pregnant. Her parents became

angry and sent her back to the orphanaga

When the pregnancy was confirmed, the

nun in charge contacted the respondent who

was living in England and he agreed to marry

the petitioner. The marriage arrangements

were not discussed with the petitioner until

shortly before the ceremony. After the

marriaga they lived together for almost 20

years and had five children in all. The

marriage appeared to break down in 1983

and the petitioner started to go out with

friends. She had a liaison with a married

man, there were violent disagreements with

the respondent and the petitioner ultimately

obtained a barring order against him. She

moved out of the family home in 1988 and

began living with another man. In the High

Court, she applied for a decree of nullity

primarily on the ground of duress or undue

influence from the nun in charge of the

orphanaga Carroll J dismissed the petition

(High Court, 29 July, 1988) (1989) 7 ILT

Digest 82. On appeal, the petitioner

abandoned the argument based on duress

and undue influence but argued that the

petitioner's consent was not full and frea

HELD by the Supreme Court (Finlay CJ,

Hederman and O'Flaherty JJ) allowing the

appeal: (1) the finding by the trial judge that

the nun in charge would have helped the

petitioner if she had indicated that she did

not wish to go through with the marriage did

not dispose of the consent issue; (2) since

the petitioner had never been given any

instruction on the nature of marriage, had

been abandoned by her parents and was not

offered any alternative to marriage, she was

not in a position to give her consriet, and her

consent was not real but apparent.

Dicta

N.(K)

-v-

[1986] ILRM 75; [1985] IR 733

applied; (3) the Court should be reluctant to

grant a decree of nullity where there was a

long delay, as in the instant casa but having

regard to the evidence (including the forth-

right evidence of the respondent) as to the

petitioner's lack of real consent to the

marriage, the Court would grant a decree of

nullity.

DUGGAN -V- DUBL IN CORPORATION

SUPREME COURT 4 DECEMBER 1990

MALICIOUS

INJURIES

STOLEN

PROPERTY - THEFT OF JEWELLERY FROM

SHOP BY THREE PERSON GANG

WHETHER PROPERTY STOLEN BY PERSONS

WHO ARE 'TUMULTUOUSLY

AND

RIOTOUSLY ASSEMBLED' - STATUTORY

INTERPRETATION - WHETHER 'AND'

SHOULD BE TAKEN TO MEAN 'OR' -

WHETHER STATUTORY

PROVISION

MEANINGLESS IF 'AND' INTERPRETED

CONJUNCTIVELY - Malicious Injuries Act

1981, ss.5,6.

The applicant was the owner of a jewellery

shop. The shop was entered by a three man

gang, who committed extensive property

damage inside the shop, struck the applicant

on the arm with a baseball bat (breaking the

arm in three places) and stole a number of

trays of rings and other items of jewellery.

The gang escaped in a car driven by a fourth

member. The jewellery stolen was valued at

£10,650, while the damage done to the

display cases in the shop was in the sum of

£750. The applicant claimed damages

against the Corporation under s.6 of the

1981 Act, which provides that a malicious

injuries claim for stolen property can be

made arising from a situation in which 'three

or more persons . . . are tumultuously and

riotously assembled together. . ." The

applicant's claim was dismissed in the

Circuit Court. On case stated HELD by the

Supreme Court (Finlay CJ, McCarthy and

O'Flaherty JJ) affirming the Circuit Court:

(1) to construe the word 'and' in s.6 in a

disjunctive sense would be to amend the

section, and such an interpretation was

impermissible having regard in particular to

s.5 of the Act (which dealt with claims for

damage to property aa opposed to stoker,

property), which hod w a d the phrase t

'urttawfutty, rioutousty or tumuhuousty'; I2> I

while the reference to *thrae or more

persons' in s.6 of the 1961 Act might not |

be readily consistent w i th the cuncapt of a i

'tumultuous* as woh as a 'riotous' saMiiSjh, )

this did not render s.6 inoperable; and the

proper meaning of the section was that a

successful claim would be confined to cases

where looting had taken place as part of a

riot; and so construed, the necessity to prove

a tumultuous assembly separately and in

addition to a riotous assembly became plain

and meaningful. Dicta in

Dwyer Ltd -v-

Metropoiitan Mice District Receiver

[1967]

2 QB 970 and

Fosters of Castlereagh Ltd.

-v- Secretary of State

[1976] NI 25 approved.

FALCON TRAVEL LTD -V- OWNERS

ABROAD GROUP PLC (TRADING AS

FA LCON LE I SURE GROUP) H I GH

COURT 28 J UNE 1990

TORT - PASSING OFF - WHETHER

PECUNIARY LOSS AN

ESSENTIAL

INGREDIENT - WHETHER APPROPRI-

ATION OF REPUTATION MOST SIGNI-

FICANT FACTOR - TOUR OPERATOR

USING SAME NAME AS ESTABLISHED

TRAVEL AGENT - NO INDICATION OF

FINANCIAL LOSS -

REMEDY

INJUNCTION - WHETHER DAMAGES

MORE APPROPRIATE REMEDY

The plaintiff company for a number of years

carried on the business of travel agent

primarily in the Wicklow and Dublin areas.

The defendant company was a substantial

tour operator and it published holiday

brochures which circulated originally in the

UK area. In 1988, the defendant decided to

extend its operations to this State and

indicated that it intended to trade as a tour

operator under the name 'Falcon'. The

plaintiff objected that this would lead to

confusion in the mind of the public. The

defendant responded that since it would

only carry on business as a 'wholesale'

operator, this would not affect the plaintiff's

business as a 'retail' travel agent. The

plaintiff instituted proceedings for passing

off claiming injunctive relief. It was accepted

by the plaintiff that the confusion com-

plained of did not cause any loss of

customers to the plaintiff but it was argued

that the tort had been established in that the

plaintiff's reputation had become submerged

in the defendant's. HELD by Murphy J: (1)

it was correct to say that damage of some

kind must be shown in order to establish the

tort of passing off, but such damage arose

primarily from the wrongful appropriation of

the reputation attaching to the business

which brings the complaint; and it was not

always a question of establishing pecuniary

loss. Dicta in

C & A Modes -v- C & A

(Waterford) Ltd

[1976] IR 198 approved.

Dicta in

Erven Warnink BV -v- J Townsend

& Sons Ltd.

[1979] AC 731 discussed; (2)

in the circumstances the Court would ex-

ercise its discretion against granting an

injunction, and award damages to the

plaintiff which would be of such a level as

would enable the plaintiff to mount an

advertising campaign to explain to the public

and thosa in the business the real difference

between the parties.

JLFJL

COURT m

FAMILY LAW - VtfBERNTTY - BLOOD

TESTS - DNA FINGERPRINTING -

HUSBAND BRINGING GUARDIANSHIP

'PROCEEDINGS -

WIFE DENYING

PATERNITY - JUDGE ORDERING BLOOD

TESTS -

WHETHER WELFARE OF

CHILDREN CONSIDERED - PRACTICE -

COSTS — Guardianship of Infants Act 1964,

s.11 - Status of Children Act 1987, s.38.

The plaintiff husband issued proceedings

under s.11 of the 1964 Act seeking, aa

guardian, a declaration concerning the

welfare of two of his wife's (the defendant's)

children. The wife sought an order under

s.38 of the 1987 Act requiring the plaintiff

and the two children to submit to blood

tests; she claimed that the plaintiff was not

the father of the children, though at the time

they were conceived she was lawfully

married to the plaintiff and was having

sexual relations with him. Having reserved

judgment, the High Court (Lavan J) granted

the order under s.38. He awarded the

plaintiff the costs of the motion on the

ground that there was an agreement

between the parties that he would not be

required to pay costs of separation. On

appeal HELD by the Supeme Court (Griffin,

Hederman and McCarthy JJ): (1) while s.38

of the 1987 Act was silent as to how the

Court might exercise its discretion as to

whether to order a blood test, it was clear

that the discretion must be exercised

judicislly by tsking account of relevant

matters and disregarding irrelevant ones; but

there was no indication that the trial judge

had failed to take into account the welfare

of the children or the relationship between

the husband and the children; and the order

under s.38 of the 1987 Act would be upheld;

(2) there was no evidence to support the

High Court judge's reference to an

agreement between the parties concerning

costs in a case such as the present, and the

costs of the s.38 motion would be reserved

to the full action under s.11 of the 1964 Act.