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GAZETTE
JANUARY/FEBRUARY 1983
Roy -v- Prior [1971 ] A.C. 470
Quartz Hill Gold Mining
Company -v- Eyre (11 Q.B.D.
674)
Tims -v- John Lewis and Co.
[1951] 2 K.B.
Tempest -v- Snowden [1952] 1
K.B.
Abbott -v- Refuge Assurance Co.
Ltd. [1962] 1 Q.B. 432.
Pike -v- Waldrum [1952] 1
Lloyds Report 431, 451
Rooney -v- Byrne [1933] I.R.
609
Flynn -v- Buckley (24 April
1980)
Barry -v- Buckley (9 July 1981
— reported)
The Court Held that:
(1) At common law an action for
maliciously abusing the courts
processes lay and such an action
is not limited to claims arising
from the institution of a criminal
prosecution and to bankruptcy
and winding-up proceedings.
The authorities establish that a
claim for damages at common
law will lie for the institution or
maintenance of a civil action if it
can be shown that the action was
instituted or maintained (a)
without reasonable or probable
cause (b) maliciously and (c) that
the claimant had suffered special
damages or that the impugned
action was one which the law
presumes will have caused the
claimant damage.
2.
If it is shown that the
proceedings had been instituted
without reasonable or probable
cause it is necessary to show in
add i t i on that they were
i ns t i tut ed or maintained
maliciously. An intent to use the
legal process in question for
some other than its legally
appointed and appropriate
purpose can amount to "malice"
in this connection. Obviously
where a Plaintiff has obtained
legal advice before instituting or
maintaining legal proceedings
the nature of that advice could be
a highly material factor in
considering whether he was
motivated by an indirect or
imprope/ motive, as it may assist
in showing whether the Plaintiff
was using the proceedings for
some legally inappropriate
purpose.
3. As to proof of damage, when a
claimant shows he has suffered
some special damages as a result
of a civil action which has been
brought or maintained without
reasonable or probable grounds
and maliciously, then a cause of
action has been established. In
the absence of Special Damages
a claimant will have to show that
the impugned action is one
which the law regards as causing
damage, e.g. if the claimant is
injured "in his fair name".
Applying these principles to
the facts of the present case the
Court Held that
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(i) there was no legally binding
agreement to grant a lease
when the proceedings were
launched;
(ii) the proceedings were not
instituted maliciously but
they were maintained by
Dorene to assist them in
their negotiations; Accord-
ingly the proceedings were
not u s ed f or t h e ir
appropriate purpose and
were maintained malicious-
iy;
(iii) Suedes suffered damage;
They would have sold their
premises to a third party
had Dorene discontinued
the proceed i ngs and
vacated the lis pendens in
December '79;
(iv) Suedes did not contribute
to their loss by failing to
apply to have the lis
pendens vacated.
The Court would take evidence
at a future date on the quantum
of damages.
Dorene Limited and Dorene Separates
Limited -v- Suedes (Ireland) Limited.
(High Court) (per Costello, J.)[ 1982J
ILRM 126.
Franklin J. O'Sullivan
COURTS ACT — Irish Language
Failure to affirm an order that
the Government and the Minister
for Justice failed to fulfill the
obligation imposed on them by
section 72 of the Courts of Justice
Act 1924.
The complainant, Tomas Ó
Monacháin, was twice convicted in
the District Court in Bunbeg, Co.
Donegal, on 2 February, 1976 and 11
May, 1976 respectively. On both
occasions it was stated that he was
responsible for development contrary
to section 24 of the Local
Government (Planning and Develop-
ment) Act 1963 without the necessary
permission. On the first occasion
before District Justice Keenan
Johnson, who was on temporary duty
that day, the complainant sought to
have the case conducted through the
medium of Irish, but the Solicitor for
the County Council and also one of
the Witnesses wished to give evidence
in English, therefore the District
Justice heard the case with the aid of
an Interpreter. On the second
occasion, District Justice Larkin also
availed of the services of an Interpre-
ter to translate to English the evidence
given in Irish.
The proceedings were commenced
in the High Court by way of Plenary
Summons in June 1976. The
complainant claimed the following:
(1) An Order affirming that the
Government and the Minister for
Justice failed to fulfill the obligations
imposed on them by Section 71 of the
Courts of Justice Act 1924.
(2) An Order of Mandamus to
compel the Government and the
Minister for Justice to fulfill these
obligations.
(3) An Order of Certiorari to nullify
the two convictions.
(4) Damages for the period he spent
in prison because he would not pay
the fines.
The complainant failed on all
grounds in the High Court and on
appeal to the Supreme Court the
appeal was dismissed on the grounds
that as Section 71 of the 1924 Act was
the basis of the claim and the primary
purpose of Section 71 being to
provide Native Irish speakers with an
opportunity to give evidence in their
native language then when a Justice is
appointed to an area in which the
Irish language is in general use, he
must be qualified to operate without
an Interpreter when evidence is given
in Irish. But the Court stated that it is
not an unconditional right under
Section 71 that a hearing of that sort
would be available in every case.
The onus was on the complainant
to show that it was because of a lack of
sufficient understanding of Local
Irish that District Justice Larkin
availed of an Interpreter. The com-
plainant failed to satisfy that onus of
proof and therefore he failed in every
claim which he made in pursuance of
the offences before District Justice
Larkin.
Walsh J. disagreed with Henchy J.
on that point. He said he was satisfied
that the Government and the
Minister for Justice had failed to
fulfill their statutory duties. District
Justice Larkin was appointed to the
district in question on 29 September,
1961 and there had been sufficient
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