The Gazette 1978

GAZETTE

MAY 1978

RECENT IRISH CASES

CONTRACT

Rules to apply in measuring damages

and breach of contract — extension

of existing headings.

The matter in dispute between the

parties was the rules to apply in

measuring damages which it had

been agreed had become payable by

the Defendant to the Plaintiff arising

out of a breach of agreement between

them relating to the sale by the Plain-

tiff in the premises of the Defendant

of fashion fabrics. In a lengthy judge-

ment reviewing the submissions made

to him by Counsel on behalf of the

parties, the President of the High

Court held that the following general

rules should apply in assessing the

damages:

"1. The general rule is that the

assessment of damages in tort

and in breach of contract should

have as its purpose the putting

back of the injured party, in so

far as money can do so, to the

position in which he would have

been had the wrong not been

comitted and thus should be

referable to the loss suffered by

the injured party.

2. To this general rule there are

exceptions both in cases of tort

and in cases of breach of

contract some of which may be

different for each particular

cause of action and some of

which are the same.

3. Where a wrongdoer has cal-

culated and intended by his

wrongdoing to achieve a gain or

profit which he could not other-

wise achieve and has in that way

acted

mala fide

then irrespective

of whether the form of his wrong-

doing constitutes a tort or a

breach of contract the Court

should in assessing damages look

not only to the loss suffered by

the injured party but also to the

profit or gain unjustly or wrongly

obtained by the wrongdoer.

If the assessment of damages

confined to the loss of the injured

party should still leave the

wrongdoer profiting from his cal-

culated brcach of the law

damages should be assessed so

as to deprive him of that profit.

In extending this measure of

damages, which heretofore has

been confined to tort, to cases of

breach of contract I have acted

upon a conclusion that the pro-

tection of a party to a contract

from uncertain or extensive

damages, against which he had

no opportunity to provide by the

terms of the contract, should not

apply where he has thus acted

mala fide.

4. In eases of damages for breach

of contract, though not in tort,

the necessity to create certainty

as to the obligations which may

arise from the contract and from

a breach thereof and the just

necessity for permitting the

parties to provide for such

obligations, make it necessary to

confine, in cases where the

element of

mala

fides

has not

occurred, damages to the loss

suffered by the injured party

even though such restriction may

result in a profit to the

wrongdoer.

5. In assessing damages for loss

incurred by an injured party

either in tort or by reason of

breach of contract the Court, if

satisfied that a loss has occurred,

, under a particular heading,

should not by reason of difficulty

in proof of the amount of that

loss, as distinct from failure to

adduce available evidence of it,

be deterred from assessing

compensation for it and should

in this context be both alert and

ingenious in assessing a general

sum for damages even though it

may involve some element of

speculation . . . "

Hickey & Co. Ltd. v. Roches

Stores (Dublin) Ltd. — High Court

— Finlay P. — unreported — 14th

July, 1976.

CRIMINAL PROCEDURE

Where

written

communications

between a prisoner awaiting trial and

his Solicitor have been examined and

retained by the prison authorities, the

proper Court to review such acts is

the court of trial; and Orders of

Prohibition, directing that the D.P.P.

and the Special Criminal Court do

not proceed further with the trial, and

habeas corpus, seeking the release of

the prisoners, would be refused.

The prosecutors had prepared a

comprehensive

note

the

circumstances of their case for the

purpose of a consultation with their

Solicitor. As the consultation had

been arranged for Mountjoy Prison,

the prosecutors had to be brought

from Portlaoise to Mountjoy. Before

leaving Portlaoise, the prosecutors

were searched and the notes were

taken by prison officers who retained

the papers until requested at

Mountjoy by the Solicitor for the

prosecutors to hand them to him for

the purpose of the consultation.

When

the

consultation

was

concluded, the prison officers insisted

on having the notes returned to them

notwithstanding the protest of the

Solicitor. The prison officers stated

that they examined the notes to

ascertain the nature of the papers and

verify that they were instructions or

notes for the Solicitor and not

material prepared for other purposes.

On their return to Portlaoise, the

notes were returned to one of the

prosecutors.

The prosecutors applied for an

Order of Prohibition directing that

the D.P.P. do not proceed further

with the trial and that the Special

Criminal Court do not proceed

further with the trial and that the

Special Criminal Court do not

proceed

further

with

the

determination or hearing of it. They

also applied under Article 40 of the

Constitution for an Order of habeas

corpus and for an inquiry under

Article 40.4. The grounds of the

application were that the Solicitor

was obstructed in his attempt to

obtain proper instructions from his

clients and that confidential notes

prepared by the prosecutors for him

were read by the prison officers or

were retained by them for periods

and under circumstances which led to

the inference that they had been read

or could have been read by them to

the prejudice of the prosecutors at

their trial, and that justice could not

be done under such circumstances

and certainly could not be seen to be

done.

Held: (per McWilliam, J.) that the

orders would be refused, and that the

question of whether the examination

of communications was necessary

was a matter for the trial court to

deal with. However, any notes

examined by the prison officers and

on which they were satisfied that the

notes were, in fact, instructions for

the purpose of the defence and

nothing else, would have to be

allowed to be handed over to the

Solicitor.

The State (John O'Hagan and

James Monaghan) v. The Governor

of Portlaoise Prison. - High Court

(McWilliam, J.) — unreported — 29

November 1977.