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GAZETTE
JANUARY/FEBRUARY 1995
Recent Irish Cases
Edited by Raymond Byrne, BCL, LLM, BL, Lecturer in Law,
Dublin City University
The following case summaries have been reprinted from the
Irish Law
Times and Solicitors Journal
with the kind permission of the publishers.
John Doe and Barbara Doe, Joseph
Dowling and Mary Dowling v. Ar-
mour Pharmaceutical Co. Inc., Baxter
Health Care Corporation and Myles
Laboratories Inc.: Supreme Court (Fin-
lav CJ, O'Flahertv, Egan, Blaynev and
Denham JJ) 9 March 1994
Private International Law
- Forum Con-
veniens -
Claims of negligence in the
manufacture and preparation of a blood
clotting product - Initiation of proceedings
in New York - Decisions of New York
courts that New York was
forum non con-
veniens
subject to condition that plaintiffs
should be at liberty to recommence proceed-
ings there if Irish courts declined jurisdic-
tion - Proceedings commenced in Ireland
but stay sought by plaintiffs on ground that
claims would be more conveniently tried in
Netu York - Whether'stay in the interests of
justice
Facts The plaintiffs brought proceed-
ings against the defendants in New
York for negligence in the manufacture
and preparation of a blood clotting
product which was intended for use by
haemophiliacs. The New York courts
acceded to motions brought by the de-
fendants that the actions should be dis-
missed on the ground of
forum non con-
veniens.
These orders were subject to a
number of conditions, including agree-
ment bv the defendants that they would
not prevent the plaintiffs from return-
ing to the New York courts in the event
of the Irish courts declining to accept
jurisdiction. After commencing pro-
ceedings in Ireland, the plaintiffs then
brought motions seeking,
inter alia,
dec-
larations that the claims would be more
conveniently and properly tried in New
York and that the High Court decline
jurisdiction, and an order staying pro-
ceedings in Ireland pending the deter-
mination of the issues in New York.
Held by the Supreme Court (Blayney J;
Finlay CJ, O'Flaherty, Egan and Den-
ham JJ concurring) in dismissing the
appeal: (1) In considering an applica-
tion for a stay where a dispute arises as
to the appropriate forum for the litiga-
tion, the test to be applied was whether
or not justice required that the action
should be stayed.
MacShannon v. Rock-
ware Glass Ltd
[1978] AC 795 and
Attor-
ney General v. Arthur Andersen and Co.
[1989] ECC 224 approved. (2) On the
facts justice did not require that the
plaintiffs' actions should be stayed. (3)
It would be unjust for the defendants to
have to face a further trial of the issue as
to what was the appropriate forum for
the case. Proceedings had already been
instituted in New York and the courts
of that jurisdiction, which had been cho-
sen by the plaintiffs, had decided that it
was
forum non conveniens.
If they had
been dissatisfied with these decisions
the plaintiffs should have appealed
against them. Subsequently seeking a
stay in the High Court on the grounds
that Ireland was
forum non conveniens
was, in effect, an attempt to have the
decisions of the New York courts re-
versed by an Irish court. This was an
unjust manner of proceeding in respect
of the defendants because it required
them to meet a claim which could have
been appealed in New York and also
run the risk of an appeal in Ireland.
Reported at [1994| 1ILRM 416
D. v. Director of Public Prosecutions:
Supreme Court (Finlay CJ, O'Flaherty,
Egan, Blayney and Denham JJ) 17
November 1993
Criminal Law - Trial - Prohibition - Inde-
cent assault - Inaccurate reporting of evi-
dence in the media - Jury discharged and
re-trial ordered - Subsequent prejudicial
media coverage - Whether Director of Pub-
lic Prosecutions should be prohibited from
pursuing further prosecution in the matter
- Constitution of Ireland 1937, Articles
38.1,40.3
Facts The applicant had been charged
with indecently assaulting a young girl
in a boat off the Donegal coast on a date
unknown between April and Novem-
ber 1988. His trial on this charge came
on for hearing before the Dublin Circuit
Criminal Court on 27 July 1992. As a
result of inaccurate reporting in two of
the national daily newspapers of the
evidence adduced at the trial, the jury
was discharged and the editors of these
papers summoned to court to explain
their conduct. At this hearing, counsel
for the Director of Public Prosecutions
(DPP) remarked that as a result of this
inaccurate reporting, a 'patently guilty
man had gone free.' The combination of
these events ensured that the case re-
ceived widespread publicity, with one
Sunday newspaper in particular run-
ning a series of highly charged feature
articles on the case. The applicant
sought to prohibit the DPP from pro-
ceeding with a re-trial on the basis that
the likely prejudice engendered in anv-
one who read these articles was such as
to make it impossible for him to receive
a fair trial and also that, by reason of the
delay which had occurred from the time
of the date of the commission of the
alleged offence and any subsequent re-
trial, he was prejudiced in the prepara-
tion of his defence to this charge. In the
High Court Carney J granted the relief
sought and held that anvone who had
read these articles would not be suitable
for jury service in any trial of this mat-
ter.
Held by the Supreme Court (Blaynev
and Denham JJ; O'Flaherty J concur-
ring, Finlay CJ and Egan J dissenting) in
allowing the appeal: (1) The right of an
accused to a fair trial is of fundamental
constitutional importance, and the
question which the court must answer
is whether there is a real risk that the
applicant would not obtain such a fair
trial because of the coverage of the case
in the media. (2) The appropriate bur-
den of proof on an applicant in estab-
lishing the likelihood of an unfair trial
is to show that there is a real or serious
risk that there will be an unfair trial.
Finucane v. McMahon
[1990] 1 IR 165
applied. (3) While it was possible that a
member of the jurv would remember
reading the article and associate it with
the instant case and feel sympathy to-
wards the victim, the applicant had
failed to show that there was a real or
serious risk that the jury would be pre-
vented from returning an impartial ver-
dict in the case. (4) To hold otherwise
would be to imply that jurors would
ignore their oath and duties as jurors as
well as the charge of the trial judge to
well and truly decide the case on the
evidence adduced during the course of
the trial alone and not to allow them-
selves to be influenced by any matters
extraneous to the trial itself.
Per
Den-
ham J: While the court must give some
consideration to the community's right
to have an alleged crime prosecuted in
the usual manner, on the hierarchy of
constitutional rights, there is no doubt
that the applicant's right to fair proce-
dures takes precedence over the right of
the community to have an alleged crime
prosecuted.
Reported at [1994] 1 ILRM 435