The Gazette 1974

1973 to issue the warrant now before the Court. The

affidavit of Sergeant John Caskey endorsed on the war-

nt, purported to identify the signature of the resident

Magistrate who issued the warrant. But there was no

statutory or other presumption that the party purport-

g to identify the signature was competent. The war-

nt purported to be issued by a resident magistrate.

was nowhere shown or alleged that he was assigned

t o

a place which would entitle him to issue the warrant

0 r

indeed that he was a resident magistrate.

^arrant bad on its face

District Justice Carr further pointed out that, taking

count of the absence of a proper affidavit, the lack of

andour and lack of authority, he was of opinion that

toe warrant was bad on its face. He also formally held

those and related matters to be good reason to exclude

the presumptions contained in Section 55, if that be

necessary. Other documents and steps taken here (the

Republic) were also fatally defective.

The respondent, in District Justice Carr's view, was

wrongly remanded to the Bray Court. Also an effective

remand order was not ma d e; the recognisance was on

the wrong form; was taken by a member of the Ga r da

Siochana, which was an illegal procedure.

The respondent, he concluded, was unlawfully

arrested, unlawfully detained and unlawfully remanded,

both by the peace commissioner and by this Court.

Accordingly he refused the application and ordered

Mrs. O ' Ha r e 's discharge.

[The People (A.-G.) v. O ' Ha r e; District Justice Ca r r;

unreported; 1 March 1974.]

A Consideration of Company Law:

Capitalism—Acceptable at Law?

Auditorial Address of GERARD CUMMISKEY

delivered at the Inaugural Meeting of the 63rd Session

the Law Society of University College, Dublin, held

Thursday, 29th November 1973.

Capitalism in whatever euphemistic way you wish to

°nsider it is the system of economics which governs us,

d its precocious child, the limited liability company

one of the main forces in our society.

The question

hope to put to you is whether capit-

1Srn

is acceptable at law, and if not whether the law or

h c

basic foundation of capitalism needs to be changed.

Initially, however, I shall deal with the rather sketchy

e v e

l opme nt of company law in this country. Up to the

est

ablishment of the Irish Free State companies in this

^°untry and in Britain have a common development,

toce then we have been less than urgent in our desire

reform. In 1927 the Doyle Commission was set up

consider the reform of the law relating to bankruptcy

nd winding-up in Ireland. This Commission reported

to 1930 and was ignored.

Company law touches on all aspects of our society

ud law; and there are numerous statutes which,

though not dealing expressly with companies, have

d a considerable effect on them. Undoubtedly the

gelation introduced during the de Valera adminis-

Mtion in

1932

typifies the most retrograde step in the

elopment of our company law. This legislation en-

tored that virtually no foreign capital would be invested

Irish industry.

c The two Coalition Governments (1948-51 and 1954-

' > did nothing about amending this legislation al-

•tough they might have scored a political advantage

V doing so, not to mention the economic advantage

Jhe country. However, with the changing political

totude towards foreign investment and the search for

industry which developed in the 1950s, this restric-

legislation was ultimately amended.

So it took twenty years, an economic depression and

a world war (since the previous report) before the

Attorney-General in 1951 set up a Commission to inves-

tigate Company Law in Ireland. This Commission in

its thorough report, which had Mr. Justice Kenny as its

Secretary, suggested reforms on traditional lines similar

to those adopted in England in 1948; although modi-

fied and altered to cater for our less complicated

economy, it did however take seven years to report.

This Report of the Company Law Reform Committee

eventually led to the 1963 Companies Act which re-

pealed the legislation, that governed our company law

during the changing period of our independence, two

world wars and a completely different economic phil-

osophy—I refer of course to the Act of 1908, which

itself was merely a consolidating Act. Small wonder that

Senator Alexis Fitzgerald should exclaim in

The Irish

Jurist

that "Truly, whatever else we wanted indepen-

dence for, it was not for company law reform !"

Fundamental principles of company law

Side by side with the statutory law, the Courts devel-

oped a series of fundamental principles which were to

assume great importance in company law. This is exem-

plified by the House of Lords in

Ashbury Carriage Co.

v. Riche

which established the

ultra vires

rule in 1875,

and modified and developed it in a number of subse-

quent decisions.

The

ult ra vires

doctrine states that companies are

only empowered to act in the manner expressly or

impliedly authorised by their memo r a nda of association.

Unhappily the rule has outlived its usefulness and has

survived merely as a trap for the unwary third party.

Originally its purpose was to protect investors and

creditors, but due to businessmen not relying on a con-

servative bench interpreting what objects would be

reasonably incidental to specific objects, investors have

had their memoranda written so wide as to cover everv

100