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GAZETTE
NOVEMBER 1978
The appointment of a
provisional
liquidator who had been given liberty
by the Court to carry on the business
of the company could not and did not
operate to determine the contracts of
employment of the employees of the
company and could not amount to
notice of discharge to all persons in
the employment of the company.
Such an order and its effect on the
contracts of employment of the
servants of the Company must be
and was completely different to an
order for the winding-up of the
company.
Whether or not the employees
were given effective notice to
determine their contracts of
employment was a question of fact.
Donnelly (Uquidator-Brittaln Manuf.
Lt d .)
v .
Gl e e s on and ors
(Employment Appeals Tribunal)
— High Court — Hamilton J. —
unreported — 11 July 1978.
EXTRADITION — Rule of
Speciality — Application to Court of
Criminal Appeal for Certificate to
appeal to Supreme Court refused.
The defendant appealed to the Court
of Criminal Appeal against the
decision of the Special Criminal
Court convicting him of certain
offences. At the outset of the hearing
of the Appeal Counsel for the
defendant informed the Court that he
had instructions to withdraw the
Appeal. The Court then ordered that
it would dismiss the appeal, no
formal notice of abandonment having
been served.
The defendant then sought a
certificate under Section 29 of the
Courts of Justice Act 1924. Under
this section the Court of Criminal
Appeal could issue a certificate that a
point of law of exceptional public
importance had risen in an appeal
and that is was desirable in the public
interest that a further appeal should
be taken to the Supreme Court. The
defendant relied on several grounds
in seeking this certificate.
(1) He alleged that in an affidavit
put before an English Court at
proceedings for his extradition the
Irish At t o r ney Gene r al had
warrented to that Court that the
defendant would not be tried in the
Special Criminal Court. He relied on
Section 39 of the Extradition Act
1965 which referred to the 'Rule of
Speciality'. This rule provided that a
person extradited under the Act
could only be tried for an offence of
the same description as the offence
for which he was extradited. He
contended that the Attorney General,
by later converting the case into one
triable by the Special Criminal Court,
converted it into a scheduled or non-
scheduled offence under the Offences
against the State Acts 1939/72 and
therefore into a different offence than
that mentioned in the affidavit of the
Attorney General.
HeId(per
Henchy J) (1) that the trial
before the Special Criminal Court did
not change in any way the offence as
described in the affidavit of the
Attorney General. The Special
Criminal Court was a Court
established under the Constitution by
Statute. The position might be
different if the Court was not one so
lawfully constituted under the
Constitution.
(2) The defendant claimed that the
Court of Criminal Appeal was
incorrect in dismissing his appeal. He
admitted that his solicitor had
instructed his counsel not to proceed
with the appeal but these instructions
were ill-founded and did not come
from him.
Held
that in the
circumstances it could not have held
otherwise at that time. If there had
been an error the defendant should
have acted immediately and not
waited for three years as he had
done.
(3) The defendant claimed that the
indictment under which he was tried
in the Special Criminal Court was
defective in that it bore the stamp of
the Dublin Circuit Court and that it
referred to trial by jury.
Held
that
these were superficial defects and that
the defendant was not misled in any
way.
Accordingly application for
certificate to appeal to Supreme
Court refused.
D.P.P. v.
Kenneth Littlejohn —
Court of Criminal Appeal (Henchy,
Gannon, MacMahon J.J.) —
Unreported — 19 July 1978.
MORTGAGE
Mortgage Suit — Mortgage created
by deposit of land certificate by
c ompany to s ecure bank
accommodation — loan negotiated
by persons not authorised by
company — whether borrowing
ratified by company — Purpose of
loan to finance acquisition of
company's own shares — bank
having constructive but not actual
notice of such purpose — whether
transaction void under Section' 60,
(14) Companies Act, 1963.
This was an Appeal brought by the
plaintiff bank against the decision of
the High Court (McWilliam, J.)
refusing the Plaintiff a declaration
that a sum of £169,689.29 for
principal and interest was, by virtue
of an equitable mortgage created by
the deposit of the land certificate, well
charged on certain lands (and the
hotel premises erected thereon) in
County Wicklow of which the
defendant company has registered as
full owner.
In the High Court the defendant
did not dispute the amount of the
plaintiffs claim but contended that
the loan, having been raised by
persons who had no authority to act
on its behalf and who were neither
directors or employees of the
defendant at the relevant time, was
not binding on the defendant or, if it
was, that the whole transaction was
voidable as being in contravention of
the provisions of Section 60 of the
Companies Act, 1963 which Section
prohibited a company f r om
financing, directly or indirectly, its
own stores. The High Court held that
the borrowing transaction had been
ratified by the defendant but was in
contravention of Section 60, and
refused the declaration sought by the
plaintiff. Against this decision the
plaintiff appealed.
Held
(per Kenny J.) (1) (as had the
High Court) that the loan transaction
had been adopted and ratified by the
defendant. Kenny J. referred to the
principles governing ratification of an
act by a principal when the agent had
not authority to act for the principal
as stated by Wright, J. in
Firth v.
Staines
[ 1897] 2 Q.B. 70, and cited
the following passage:—
"I think the case must be decided
upon the ordinary principles of the
doctrine of ratification. To
constitute a valid ratification three
conditions must be satisfied: first,
the agent whose act is sought to be