326 / 330
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