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GAZETTE

JULY/AUGUST 1986

which was prepared by Mr. Stuart was

served on Flynn. Subsequent to the hearing

of the High Court proceedings, Flynn was

returned for trial on foot of the indictable

charges to the Circuit Court.

The Plaintiff sought a number of

declarations as against the Defendant and

an injunction against the Defendant arising

out of the appointment by the Defendant

of Mr. Stuart. The Plaintiffs claims were

dismissed by the High Court on 4 July

1985. The Plaintiff appealed to the

Supreme Court.

The grounds of Appeal for the Plaintiff/

Appellant were:—

1. A mistrial had occurred in that the trial

Judge:

(a)

refused to grant an amendment to the

Statement of Claim which had not

been opposed by Counsel on behalf

of the Defendant whereby it was

sought to add an additional plea, and

(b) (it was also complained) that the trial

Judge refused to permit the Plaintiff

to give evidence which would support

his additional plea.

HELD by Finlay J. that the two rulings

made by the trial Judge (at the commence-

ment of the action) did not create any

injustice and could not have contributed to

a wrong decision. No mistrial had

occurred.

Having regard to the legal issues which

arose in the second ground of Appeal, the

submissions were held to be incorrect in

law and failed for a number of reasons.

The Prosecution of Officers Act of 1974

vested in the newly created office of the

Director of Public Prosecutions the power

and duty to prosecute all offences other

than in a Court of Summary Jurisdiction.

There is an implied power to engage

Solicitor and Counsel to carry out the

constitutional duty imposed. There can be

no conceivable logic or requirement of

justice which restricts the DPP in his choice

of Solicitor to take part in the conduct of a

trial on indictment. There was also no

possibility of an injustice flowing from the

decision to appoint Mr. Stuart. The

Plaintiff has and would have the total

protection of the Court and of the Judge

presiding over his trial from any attempt to

introduce into it any incorrect procedures

or an unjust result.

The submission that there would be an

apparent injustice and that justice wGuld

not appear to be done was also rejected.

Stephen Flynn -v- The Director of Public

Prosecutions

- Supreme Court (per Finlay

C.J. (nem. diss.)), 8 November,

1985 —

unreported.

Liam Mac Hale

CONTRACT

Breach of Contract - Agency - Frustration -

Damages.

The Plaintiff organised a tour for

members of the Vintners Federation to

travel with Aer Lingus from Dublin to New

York (return) and with United Airlines

Incorporated ("United") from New York

to Hawaii via San Francisco and back via

Los Angeles and Las Vegas.

In November 1978, United confirmed

the flights. On 24 January 1979, the

Plaintiff sent United a deposit for the

American part of the tour.

A

strike

by

United's

employees

commenced on 31 March 1979 and a

message was sent to United's managers

directing them to notify all airlines in their

areas that, due to suspension of services, all

carriers were requested not to issue tickets

on United airlines until advised of

resumption of service and that pre-paid

ticket authorities would not be accepted for

ticket insurance by United after 31 March

and until further notice. Notwithstanding

this Aer Lingus issued group tickets on 6

April. However, United's area represen-

tative had received a telex on 31 March that

all United flights were cancelled but there

was no need for alarm with regard to the

Vintners Association. Subsequently the

area representative tried to organise a

management crew but ultimately the group

were taken by different airlines.

The Plaintiff sought to recover the

additional costs occasioned by the strike.

As against Aer Lingus it was claimed that

the issue of the tickets by Aer Lingus was a

representation that the tickets were binding

on United and their issue after the strike

had been declared was negligent.

United's defence was based on, firstly,

the Plaintiff took a calculated risk that

United would be able to carry the group

and the Plaintiff should have cancelled the

tour and, secondly, the contract was

frustrated by the strike.

The Court HELD that Aer Lingus was

acting as agent for one or other of the

Plaintiff and United. On the Plaintiff's

evidence Aer Lingus was acting as United's

agent and United was then saying that the

group would still be carried. As agent for a

disclosed principal Aer Lingus could not be

held liable in contract. Aer Lingus was

instructed to print the tickets by one of the

parties with the consent of the other. As all

the terms of the contract of 24 January

1979 between the Plaintiff and United had

been agreed when Aer Lingus was

requested to print the tickets, the issue of

the tickets could not affect the contract.

The Judge stated that the following

principles

appeared

to

apply

when

considering a claim that a contract has been

frustrated.

1. A party may bind himself by an

absolute contract to perform some-

thing which subsequently becomes

impossible.

2. Frustration occurs when,

without

default of either party, a contractual

obligation has become incapable of

being performed.

3. The circumstances alleged to occasion

frustration should be strictly scruti-

nised and the doctrine is not to be

lightly applied.

4. Where the circumstances alleged to

cause the frustration have arisen from

the act or default of one of the parties,

that party cannot rely on the doctrine.

5. All the circumstances of the contract

should also be strictly scrutinised.

6. The event must be an unexpected

event.

7. If one party anticipated or should have

anticipated the possibility of the event

which is alleged to cause the frustration

and did not incorporate a clause in the

contract to deal with it, he should not

be permitted to rely on the happening

of the event as causing frustration.

A significant circumstance was that there

had been a sixty-day "cooling-off" period

in operation prior to the strike which must

have been within the knowledge of United

at all times from 30 January 1979. There

must have been some threat of industrial

action before the "cooling-off period". At

no time were these circumstances made

known to the Plaintiff presumably because

United felt that if the Plaintiff knew he

might try and get another airline to carry

the group. United being aware of the threat

or possibility of a strike took the risk of

entering into the contract without including

a provision to safeguard its position in the

event of a strike. Under these circum-

stances United was not entitled to succeed

on its defence that the contract was

frustrated.

The Plaintiff was entitled to recover

damages for (1) the increase in air fares

over the contract price; (2) the increase in

hotel bills; (3) the extra cost of a represen-

tative's visit to Las Vegas; (4) the extra cost

of ground transport; (5) the cost of long

distance phone calls which did not relate to

the proposed legal proceedings. Damages

were not allowed for (1) the travel agent's

commission; (2) the legal fees; (3) the

accountant's fees; (4) advertisement cost in

the brochure; (5) the booking at a Las

Vegas hotel; (6) the expense of Washington

and New York meetings with lawyers.

Damages were not awarded for mental

distress, upset or inconvenience. First,

there was no medical evidence. Second, the

Judge could not see any justification for

giving damages to a man who found that

the strain of conducting one particular

transaction in the course of his chosen

business was too much for him — the

Plaintiff being a tour promoter.

The Judge accepted the principle that, if

the Plaintiff had not had to expend the

extra money, he would either have paid off

debts due to the bank and so saved interest

payments, or he would have been in a

position to place the money so as to earn

interest on it. Interest at 10 per cent per

annum was allowed on the extra expendi-

ture from the time it should have been

repaid to him.

The Judge did not accept the argument

that the Plaintiff should have mitigated his

damages by cancelling the tour, as the

argument meant the Plaintiff should have

repudiated or agreed to waive the contract

neither of which constitutes mitigation.

As to United's claim for an indemnity

against Aer Lingus, the tickets were issued

in respect of a contract already made. As it

was a charter flight the terms of which were

already agreed tickets were issued purely

for administrative purposes and could not

affect the contract. The telex had been

intended to prevent any further contracts.

Furthermore, United had agreed to the

tickets being printed and took no steps

specifically to cancel the printing. The

second telex, which stated no need for

alarm for the group, made it clear that

United were not cancelling the flight and

considered the contract binding. United

were net entitled to any indemnity or

contribution from Aer Lingus.

Enda McGuili -v- Aer Lingus Teoranta and

United Airlines Incorporated

- The High

Court (per McWilliam

J.), 3 October

1983 — unreported.

William Johnston

viii