The Gazette 1983

309 / 346

GAZETTE JANUARY/FEBRUARY 1983
Respondent had proposed to him.
The Respondent was subsequently
introduced to the Petitioner's mother
and sisters and the parties became
formally engaged. The Petitioner
maintained that he was ill at the time
.and had no intention of marrying.
Meanwhile the Petitioner's mother
became ill and she died in January
1978. The Petitioner moved to live
with one of his sisters who found him
to be very depr e s s ed. The
Respondent was unaware of the
extent of his depression as the
petitioner displayed a more cheerful
disposition to her, she put any
hesitations he had down to pre-
marital nerves.
The Petitioner did express»
hesitations about the fortcoming
marriage but never stated clearly that
he did not wish to proceed with the
marriage. He maintained that he
attempted to break off the relationship
from the Sunday before the wedding
but did not get the opportunity. Prior
to the wedding the petitioner made a
will referring to the Respondent as his
intended wife. Very shortly after^the
marriage there were a number of rows
and minor assaults on the wife. After
eight months the Respondent left the
family home as she felt the Petitioner
did not want her.
The court heard evidence from
three Psychiatrists who treated the
Petitioner but none of them had seen
the Petitioner either immediately
before or after the marriage. The
psychiatric evidence was to the affect
that the Petitioner understood the
nature of marriage but might find it
difficult to understand and face up to
relationships within marriage. The
court accepted that both before and
after his marriage the petitioner
suffered from some sort of personality
de f ect or illness similar to
schizophrenia, and that this made it
difficult for him to have a successful
marriage.
In answering questions 1 and 2 the
court considered the evidence was
coercive that the Petitioner was at all
material times able to understand the
nature, purpose and consequences of
the marriage contract. It was equally
clear from the facts of the case that
there was no pressure, fear, duress or
undue influence exercised by the
Respondent on the Petitioner.
Accordingly the reply to question 1 is
No, and the reply to question 2 is Yes.
On the third question the Court
stated that there is no precedent in
Irish Law for this argument. Counsel
for the Petitioner submitted that even
if he had freely entered into the
marriage and knew the implications
thereof, he was still not capable of
contracting a valid marriage as he was
so ill, he was unable to sustain a
normal relationship with his wife. It
was further submitted that marriage
implied an intention on behalf of both
parties to live in some form of society
and if one party (through illness as
suggested in this case) has not the
capacity to sustain a relationship with
the other, a real marriage becomes
impossible. The court drew an
analogy between the argument
submitted on behalf of the Petitioner
and impotence as a ground for
avoiding a marriage. The court was of
the view that what was contended
here was a more serious impediment
to marriage than that of impotence.
The court further considered that the
illness of one of the parties, they both
in other respects being capable of
contracting a valid marriage, could
not make the marriage void providing
both knew of the illness. To hold
otherwise would be an unwarranted
interference with the right to marry.
By contrast the court accepted that if
it could be shown that at the date of
the marriage the Petitioner through
illness lacked the capacity to form a
caring or considerate relationship
with his wife then the court would
enterain this as a ground on which a
decree of nullity might be granted.
The court drew a further analogy with
the law of impotence in holding that if
such a ground were to be successful
it would make a marriage voidable
and thus would only void the
marriage if the other party had
previously repudiated the marriage.
In conclusion the court stated that
it found the Petitioner's own evidence
in many respects unsatisfactory and
was not satisfied that he had proved
that on the date of his wedding he was
so incapacitated as to make the
marriage void or voidable. Even if it
were voidable the marriage would be
voidable only at the instance of the
wife and there was no evidence in the
case that the wife had repudiated the
marriage. The petition was accord-
ingly dismissed.
. v. J.S.J. (High Court) (per
Barrington J.) [1982] ILRM 263.
Mary Griffin
TORT
Malicious abuse of Court Process
— claim for Damages where
proceedings for specific perform-
ance and registration of Lis
Pendens instituted and main-
tained maliciously and without
reasonable or probable cause,
resulting in damage.
Negotiations took place between
the parties Estate Agents and then
their Solicitors in 1979 for the leasing
of the Defendants ("Suedes") factory
premises in Clanbrassil Street in the
City of Dublin. In the course of corre-
spondence Suedes offered a lease to
the first named Plaintiff ("Dorene")
"subject to contract" and other con-
ditions. On 9 October 1979 Suedes
informed Dorene that it was no longer
interested in granting a lease. Dorene
instituted proceedings for specific
performance and damages for mis-
representation and registered a lis
pendens against the property. Suedes
immediately replied by telling
Dorene that if it went on with its
action Suedes would claim damages
as the proceedings were preventing a
sale of its property to a third party. In
December 1979 Dorene were advised
by Counsel that their action would
not succeed but they did not then
discontinue their action but continued
the proceedings. But in the meantime
proceedings had been filed and
Suedes had counterclaimed damages
for the wrongful institution and
maintenance of the proceedings; its
claim, in effect, being one for damages
for the malicious abuse of the Court's
process.
Dorene's Counsel firstly argued
that the Defendant had no cause of
action. He accepted that a claim for
maliciously instituting criminal
proceedings lies and also for
maliciously instituting proceedings in
bankruptcy and to wind up a
Company, but that no action lies for
instituting a civil action (even one
maliciously brought) because the
basis of the tort is damage done to the
public by the wrongful institution of
proceedings and no such injury is
suffered by a Defendant in an
ordinary inter-partes action.
Alternatively it was argued that if an
Action lay for maliciously instituting
a claim for specific performance, on
the facts of this case Suedes' claim was
unsustainable. The Court examined
the following authorities and case
law:—
Holdsworth: History of English
Law (Vol. 81. p. 385 et seq).
Salmond on Torts: 16 Ed. p. 427
Wylie: Irish Conveyancing Law
The Walter D. Wallet (1893) P.
202
Saville -v- Roberts (1698) 1
Ld.Ray. 374
v