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JANUARY/FEBRUARY 1978
RICKNT IRISH CASES
Summaries of Judgmentsprepared by
John Buckley, Mary Finlay, Colum
Gavan Duffy, Dalre Hogan, Michael
O'Mahony and Michael Staines.
DOMICILE — ESTATE DUTY
Deceased held never to have
abandoned domicile of origin and
even
If
he had would have acquired
Irish domicile by choice on the facts
In the ease.
Edward Wynne Talbot Crosbie (the
deceased) was bom in London in
1874 with an Irish domicile of origin
because of his father's domicile. His
family home was at Ardfert in
County Kerry, but he was educated
in Scotland and he entered the
building and "factoring" trades there.
On his father's death in 1913 he
became entitled to the Ardfert
property, subject to his mother's life
interest, and he visited it regularly
and managed it. It was burned down
in 1922, and the deceased used the
compensation obtained to establish a
building business in Dublin, and he
continued this until 1929 or 1930,
when he also ceased his similar
Scottish businesses. He did, however
keep his secretary in his employment
in Scotland, and she also helped in
looking after the deceased's invalid
sister, for whom deceased had bought
a house in Largs in Scotland. The
sister died in 1953, and a couple of
years later deceased soid the Largs
house and bought a house in
Glasgow for his secretary and her
mother. He retained a room in this
house for an office for himself. He
never bought a dwellinghouse for his
own use in Scotland.
He had married in 1927 and lived
in his wife's house in Glasgow until
1935. They moved to Killiney in
County Dublin in 1935 and
separated about 10 years later. His
wife returned to Scotland and lived
there until her death. Deceased
continued to live in the Killiney area
and bought Old Conagh Cottage,
Bray in 1954 and lived there until his
death in 1967.
In his Will he declared that
"despite my residence in the Republic
of Eire I have looked upon myself as
a Scotsman and have retained and
desire to retain my Scottish domicile
acquired by my choice and which is
now retained by me".
Held:
(McWilliam J.) that it had
not been established that the
deceased acquired a domicile of
choice in Scotland. It was also within
his contemplation that he might
return to Ireland when he retired
from business or circumstances
permitted.
Even if the deceased did acquire a
domicile of choice in Scotland the
Court was satisfied that from the time
of the purchase of Old Conagh
Cottage die deceased had abandoned
his Scottish domicile of choice if he
had ever acquired one. The
testamentary declaration was made
at the instigation of his Scottish
Solicitor, who thought that it would
simplify the administration of the
estate. It is clear from the evidence of
the Solicitor and the correspondence
that the deceased did not really mind
which domicile was alleged.
The Revenue Commissioners v
Isabella Klrkhope Shaw and Lindsay
Morton Talbot-Crosbie
— The High
Court — McWilliam J. — unreported
— 29 April, 1977.
HABEAS CORPUS
Appeal — S.207 Mental Treatment
Act 1945.
An appeal against a decision of
Hamilton J., that prosecutor should
be discharged from the Central
Mental Hospital as he was not
detained in accordance with law,
was allowed by Supreme Court.
The prosecutor who was then
detained in a District Mental
Hospital was charged with an
indictable offence. A District Justice
sat in the hospital to hear the charge
pursuant to the provisions of Section
207 of Mental Treatment Act 1945.
Section 207 (1) provides that in such
a case the District Justice shall certify
that the detainee is "suitable for
transfer" to the Central Mental
Hospital provided evidence is given
which, in the opinion of the District
Justice, constitutes
prima facie
evidence that
(e) the detainee has committed
the offence;
(b) that he would, if placed on
trial, be unfit to plead.
The District Justice so certified
and the Prosecutor was eventually
transferred to the Central Mental
Hospital. Some time later the
Prosecutor sought an order of
Habeas Corpus. He relied on the
principle set out in the decision (as
yet unreported) in
A.G. v. Foran and
Healy.
This case is concerned with
the circumstances in which the
interests of jus t i ce and the
requirements of a fair trial necessitate
that a person charged be provided
with legal assistance if he cannot
provide such for himself. The
Prosecutor pointed out that he was
not legally represented at the hearing
before the District Justice and,
furthermore, he was given no
opportunity of defending himself.
Hamilton J. accepted his contentions
and ordered his discharge.
Held:
(O'Higgins, C. J.) that
the principles of
A.G.
v.
Foran
and Healy
applied only to the trial of
persons charged with criminal
offences and not to the earlier or
ancillary stages of criminal
proceedings. The Court accepted the
decision in
the State v. O'Brien
[ 1971]
I.R. 42 that the procedure under
S.207 constituted an exercise by a
District Justice of his criminal
jurisdiction but they held that this
procedure merely amounted to an
enquiry as to the mental health of die
person charged and was "ancillary
and preparatory". It did not
amount to a trial. The District Justice
did not order the transfer — he
merely certified that the patient was
suitable for transfer. He did
x
not
impose any punishment. The decision
in
Foran and Healy
did not apply and
the conditional order of Habeas
Corpus was discharged.
The
State (at the prosecution of
Oliver O'Reilly) - Respondent
(Prosecutor), and
The Clinieal
Director of the Central Mental
Hospital
- Appellant (Respondent) —
Supreme Court (per O'Higgins
CJ.
with Kenny and Parke JJ.) —
unreported — 7 July, 1977.
LANDLORD AND TENANT
Whether landlord's refusal to
consent to assignment was
reasonable»
The Plaintiff was the lessee of
premises at D'Olier Street, Dublin,
for a term of 27 years from 1
January, 1972, with rent review
clauses in the lease. The lease
contained a covenant providing that
"not without the landlord's (i.e.
Defendant's) consent to use the
premises for any purpose other than
as a ladies and gents tailoring and
outfitting business." Because of the
collapse of the hatters business in