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GAZETTE
MAY-JUNE
RECENT IRISH CASES
PRACTICE - TRANSFER TO
CIRCUIT COURT
A claim for damages for assault was
remitted to the Circuit Court, as a
jury in a High Court action would be
unlikely to award more than £2,000
damages.
Claim for damages for asssault and
battery by defendant on plaintiff in
drawing room of defendant's house in
February, 1970. The plenary
Summons was issued on 26th March,
1975, and an appearance was
entered on 2nd July, 1975. The
injuries sustained are described as
pain, shock and humiliation, but no
special damages are claimed. This is
a motion to have the case remitted to
the District Court or Circuit Court.
It is contended by the defendant
that, as the statement of claim does
not disclose any injuries, such an
assault would be fully compensated
by £250, the limit of the District
Court jurisdiction, and that in any
event, damages of more than £2,000
would be excessive. The plaintiff
contends that, by remitting the case
to the Circuit Court, he would be
deprived of his right to trial by jury.
The plaintiff also contends that he
has a constitutional right of access to
the High Court, and that, if this right
is exercised, he has a right to trial by
jury, and cannot be deprived of it.
The question is whether the
plaintiff has an absolute right to a
jury which he can enforce by starting
his action in the High Court, or
whether he has only got a right to a
jury if his action goes to trial in the
High Court. The Judge is not
satisfied that there is any absolute
right in the form claimed. It follows
that, in accordance with the Supreme
Court decision in
Ronayne v.
Ronayne-{1910)
I.R. 15 - there is
no alternative but to remit the case to
a lower Court, as the Judge is not
satisfied that a High Court jury in
this case would award more than
£2,000. The defendant was a wealthy
man and in a dominant position as
regards the plaintiff, and the incident
was most humiliating, but there were
no injuries sustained. In the
circumstances, it is reasonable to
remit the case to the Circuit Court.
McDonald
v.
Galvin -
McWilliam J.
— unreported — 23rd February,
1976.
8
LOCAL GOVERNMENT
-
PLANNING
Plaintiffs claim for a declaration
that Ministerial permission given
for housing development
to a
development company was null and
void rejected.
Plaintiffs claim a declaration that
permission given to Templefinn
Estates by the Minister for Local
Go v e r nme nt
f or
h o u s i ng
development at Hackettsland,
Killiney, is invalid and void, and
made in disregard of the principles of
constitutional justice.
The plaintiff's case is based on a
consideration of an imposed
condition to the effect that no houses
were to be constructed on the part of
the site to the south of the culverted
stream before the expiration of 3
years from the Order, in order to
control and regulate developments.
Throughout the long proceedings, the
plaintiff has made the case that the
provision for sewerage disposal is
inadequate. A previous order of the
Minister granting permission for this
development was declared invalid by
Finlay J. on other grounds in March,
1974, (see Gazette, 1974, p. 79).
As there has been a delay of 3
years so as to ensure that sewage
disposal facilities are satisfactory, the
plaintiffs contend that, at the time of
the making of the Order, the Minister
decided that these sewage facilities
were not satisfactory, and that
consequently the whole ministerial
permission was bad on its face.
Having referred to Sections 19 and
26 of the Planning and Development
Act, 1963, the Judge stated that it
must be obvious to any responsible
person that adequate sewage disposal
facilities should be provided before a
new housing development is
occupied.
However desirable such a
provision might be, neither Section
26 nor Section 19 require a Planning
Authority to impose conditions
regarding sewage disposal or
pollution. It follows that the plaintiff's
proposition is that a condition is bad
unless it necessarily ensures the
accomplishment of the reason for
imposing it. S. 26(8) of the Act states
that "the notification of the
Ministerial decision shall comprise a
statement specifying the reasons for
the refusal or the imposition of
conditions". The Judge can see no
reason for the justification for the
approach that the stated reason for
the condition, namely the provision
of satisfactory sewage disposal, must
itself be treated as a condition
binding on the Local Authority or the
Minister. The plaintiffs claim for a
declaration must accordingly be
dismissed.
Killiney and Ballybrack Development
Association Ltd. v. Minister for
Local Government and Templefinn
Estates Ltd.
(No. 2) - McWilliam J.
- unreported — 1st April, 1977.
CRIMINAL LAW - EVIDENCE
- VOLUNTARY STATEMENTS
Defence contentions that statements
made relating to the kidnapping of
Dr. Herrema were not voluntary
rejected.
The two accused were convicted in
the Special Criminal Court on the
first count of having on 30th
October, 1975, at Limerick falsely
imprisoned Dr. Herrema by un-
lawfully detaining him against his
will, and, on the second count, of the
unlawful possession of firearms. The
only evidence against them was
contained in their respective
statements, and in Garda sketches of
the scene of the kidnapping.
It was first contended that the trial
was unsatisfactory, in that, when the
Special Criminal Court had decided
to admit the statements, the Court
did not proceed to hear the same
evidence. S.41(4) of the Offences
against the State Act, 1939,
provides that the practice and
procedure applicable to the trial of a
person in indictment in the Central
Criminal Court shall, so far as
practicable, apply to the trial of a
person before the Special Criminal
Court. It was contended that if
subsequently evidence had been
tendered as to the making of the
statement, and the circumstances in
which it was made, counsel for the
accused could have cross-examined
the Garda on the accuracy of the
matters stated therein. It is clear from
the transcript that the usual
procedure was followed, whereby the
admissibility of statements would be
determined by the Court. At the special
request of counsel for the defence,
prosecuting counsel recalled each
witness who had previously given
evidence in regard to the taking of
statements, and each of these
witnesses re-affirmed that the
evidence already given was true and