254 / 338
damnified by the non-attendance of the plaintiff in
Court; his Lordship stated, on the other hand, that
it might be harmful to the defendants' interest to
have the plaintiff in Court, however expressly the
jury were told that they must ignore the plaintiff's
distress and depression and deal only with the
monetary loss sustained by him as a result of his
wife's death.
In those circumstances, Murnaghan,
J., held that, in the interest of both parties, the
proper course for him to pursue was to order that
the plaintiff's evidence be taken on commission.
(Irish ~Lcm> Times,
Vol. 94, p. 146, i8th June, 1960.)
Injunction ignored.
The case of Fitzgerald
v.
Noone, a Circuit Appeal
decided by Mr. Justice Walsh at the end of last
term, was a salutary illustration of the truth that it
does not pay to disregard other peoples' rights or
the exact terms of Court Orders. The plaintiff was
the tenant of the hall flat in a large house owned by
the defendant, a builder. The defendant proposed to
take down the upper portion of four large chimney
stacks on the house and to recap them at a lower
level, and had arranged to get a grant for this work.
His foreman told one of the plaintiff's children to
tell his mother not to light fires in the flat, but
apart from this no warning of the work was given
to the tenant, several of whose rooms were suddenly
covered with soot resulting from the work on the
chimneys and whose family was exposed to danger
from stones and material dropped from the roof to
the ground in front of the house.
The plaintiff
obtained an injunction and damages in the Dublin
Circuit Court, the injunction providing that the
defendant might continue the work only upon
certain conditions, one being that he should not
touch a kitchen chimney until he had completely
reinstated the sittingroom chimney. The defendant
learned that the plaintiff and his wife would be away
from the flat for the following week, and thought
that it would be empty and that there was, therefore,
no need to observe this condition, which he accord
ingly ignored.
The plaintiff returned during the
progress of the work to find all the chimneys out of
commission and issued a notice calling on the
defendant to show cause why he should not be
committed for contempt of Court.
In the Circuit Court the defendant was committed
to prison for two months for contempt. On appeal
this was reduced to seven days to run from the date
of the original committal order (during which time
the defendant was out on bail). The High Court
affirmed the original decree for £130 damages with
costs in both Courts, so that the defendant must have
had an expensive lesson.
(Irish ~Law Times,
Vol. 94, p. 171, July, 1960.)
Frustration—prohibition of use of normal route.
The
existence of a possibility, appreciated by both parties at
the time of making a contract, that a certain event may
occur, does not necessarily prevent the frustration of the
contract by that event when it does occur.
By a charterparty, dated i8th October, 1956, a
vessel was chartered to proceed to Masulipatan,
India, and there load a cargo of iron ore for carriage
to Genoa. It was provided by the charterparty that
the captain was to telegraph the charterers at Genoa
" on passing Suez Canal".
At the date of the
charterparty the parties knew that owing to hostilities
in the Canal Zone the canal, which was the customary
route, might be closed to shipping. In November,
1956, the canal was blocked to shipping. The ship
owners claimed that the contract was frustrated.
Held that, it was an implied term of the contract
that the vessel was to go by the Suez Canal; that
a voyage by the Cape would have been a funda
mentally different voyage and, accordingly,
the
contract was frustrated ; Societe Franco Tunisicnne
D'Armement
v.
Sidermar S.P.A. (1960) 2 All E.R.
529, Pearson, J. (distinguishing Carapanayoti & Co.
v.
E. T. Green (1958) C.L.Y. 560 ; Tsakiroglou &
Co.
v.
Noblee Thort G.m.b.H. (1960) 5 C.L. 28).
Defamation—privilege—letters to Ear Council.
In Lincoln
v.
Daniel (June 24, 1960) the defendant
sent two letters to the Secretary of the General
Council of the Bar alleging professional misconduct
against the plaintiff, who was Queen's Counsel.
Salmon J. held, in the plaintiff's libel action, that
the letters were the subject of qualified and not
absolute privilege, since the Bar Council had no
judicial or quasi-judicial function;
and on the
verdict of the jury that the contents of the letters
were untrue, entered judgement for the plaintiff for
£7,500. (D.C.) See also
The Times,
June 25, 1960.
Practice—contempt—newspaper—influence onjudge.
In R.
v.
Duffy, ex p. Nash (June 21, 1960) the
applicant for a writ of attachment for contempt
against the editor of, and journalists employed by a
newspaper was convicted of causing grievous bodily
harm after a
trial which attracted considerable
publicity, and forthwith announced to the press his
intention of appealing. The newspaper published
the next day, an article describing him as an obscure
thug and a small-time hooligan with big ideas
although it was said on his behalf in court, he bore
a good character.
The Divisional Court (Lord
Parker, Hilbery, Cassels, Donovan and Edmund
Davies J.J. held, dismissing the application that the
case had been
subjudice
at the time of the publication,
but that even had a judge seen the article, it was