The Gazette 1995

-GAZETTE

MAY/JUNE 1995

-ing land zoned for agricultural use un-

der development plan - Proposal by third

party to build rival ^hopping, leisure and

residential complex nearby - Respond-

ents agreeable in principle - Financial

contribution plan - Decision to review

plan subsequently taken by respondents

and draft plan thereafter put on public

display - Whether fair procedures ad-

hered to by respondents in process of

making their decision - Whether bias

inherent in that process - Whether deci-

sion taken one of an administrative as

opposed to a judicial nature - Whether

applicant should have been consulted

prior to actual decision being taken -

Local Government (Planning and Devel-

opment) Act 1963, ss. 20)21,26 (g) and

(h)

KSK Enterprises Ltd v An Bord Pleanála

and Ors. Supreme Court (Finlay CJ,

O'Flaherty, Egan, Blayney and Denham

JJ) [1994] 2 ILRM 1

Planning permission - Notice of motion

seeking leave to apply for judicial review

-Time limit-Whether application made

in time by filing notice of motion in

Central Office of the High Court - Notice

of motion must be served on all respond-

ents within time limit - Local Govern-

ment (Planning and Development) Act

1992, s.19 (3) - Rules of the Superior

Courts, 0.84.

Interpretation - Words and phrases -

'Application made by motion on notice'

-Time limit-Whether application 'made'

by filing of notice of motion in Central

Office of the High Court - Whether re-

quirement for service on all respondents

- Local Government (Planning and De-

velopment) Act 1992, s.19 (3) - Rules of

the Superior Courts, 0.84.

PRACTICE AND PROCEDURE

Civil Legal Aid Bill 1995

This Bill, as presented by Senator Maurice

Manning, aims to put the Scheme of Civil

Legal Aid and Advice on a statutory foot-

ing. That scheme is administered by the

Legal Aid Board, a non-statutory body

established in 1979 with funds provided

by the exchequer, and aims to ensure that

persons of limited means have access to

justice in civil matters. Provision is made

for the establishment of a Legal Aid Board,

its membership, financing and the crite-

ria to be considered by the Board when

deciding on applications for legal aid and

advice and the conditions under which

such aid and advice will be made avail-

able.

James Fitzgearld v William Kenny and

Or. Supreme Court (Finlay C),

O'Flaherty, Egan, Blayney and Denham

J|) [1994] 2 ILRM 8

Evidence - Damages - Appeal on

quan-

tum

- Personal injuries - Assessment on

basis that plaintiff would remain a mem-

ber of An Garda Síochána - Plaintiff

dismissed shortly afterwards due to inju-

ries sustained in accident - Exacerbation

of plaintiff's physical and mental condi-

tion - Whether fresh evidence should be

admitted - Basis of admission of fresh

evidence.

Supreme Court - Evidence - Appeal

quantum-

Assessment by High Court

- Subsequent change in circumstances -

Discretion of court whether fresh evi-

dence should be admitted - Matters to be

considered in exercise of discretion -

Rules of the Superior Courts 1986, 0.58

r.8

REAL PROPERTY

AS v GS and Ors High Court (Geoghegan

J) [1994]2 ILRM 68

Priority - Whether claim for a property

adjustment order amounts to a

lis pendens

-Whether volunteer bound by

lis pendens

irrespective of whether he has notice of it

and irrespective of whether it has been

registered - Judgments (Ireland) Act 1884,

s.10

Family Law - Judicial separation -

Family home - Interim order preventing

registration of judgment mortgage- Fam-

ily Home Protection Act 1976, s.5(1) -

Judicial Separation and Family Law Re-

form Act 1989, ss. 11(c), 15

TAX

Value-Added (Threshold for Advance

Payment)(Amendment) Order 1994 (SI

No. 342 of 1994)

Section 19(6) of the Value-Added Tax

Act 1972, together with SI No. 345 of

1993, requires that an advance payment

of VAT be made in December 1993 and

subsequent years by any taxable person

whose total annual VAT liability exceeds

a threshold. This Order increases this

threshold from £300,000 to £1,000,000

in respect of the advance payment to be

made in December 1994 and subsequent

years.

European Communities (Value-Added

Tax) Regulations 1994 (SI No. 448 of

1994)

These Regulations insert a new section

15B into the Value-Added Tax Act 1972.

The new section deals with the transi-

tional arrangements applicable for the

taxation of trade between Austria, Fin-

land and Sweden, and Ireland, in the

context of these countries' accession to

the European Union on 1 January 1995.

In effect, the Regulations introduce tran-

sitional measures which ensure that VAT

at the poi nt of entry appl ies to goods from

Austria, Finland and Sweden which are

dispatched prior to 1 January 1995 and

are placed under a tax suspended import

procedure in the State, but are not cleared

through that procedure until after 1 Janu-

ary 1995.

Value-Added Tax (Refund of Tax) (No.

27)

Order 1995 (SI No. 38 of 1995)

This Order allows for a full refund of the

VAT paid on qualifying equipment for

medical research purchased through vol-

untary donations with effect from 27 Janu-

ary 1994.

TORT

Defamation Bill 1995 [Private Members

Bill]

This Bill, as presented by Mr Michael

McDowell, TD, aims to implement the

recommendations of the Law Reform

Commission's reports on defamation and

the crime of libel (December 1991). The

principal reforms proposed are: (i) aboli-

tion of the distinction between libel and

slander; (ii) plaintiffs will be required to

prove that allegedly defamatory material

is false; (iii) a speedy new remedy (the

declaratory judgment) would be intro-

duced in which damages would not be

awarded, and (iv) publishers of defama-

tory material would not be liable to pay

damages (other than for the financial

loss) where reasonable care was exer-

cised. In addition, the offence of criminal

libel would be replaced with the new

offence of criminal defamation and lim-

ited protection for journalists, editors and

publishers would be provided in respect

of the non-disclosure of sources.

Ciaran Foley v Independent Newspa-

pers Ltd and Ors High Court (Geoghegan

J) [1994] 2 ILRM 61

Defamation - Libel - Fair comment -

Whether newspaper article libelled plain-

tiff - Whether article based on facts truly

stated - Whether article contained impu-

tations of corrupt or dishonourable mo-

tives - Whether fact of fundamental im-

portance omitted from article - Appeal

against assessment of damages by Circuit

Court - Whether costs of defendant who

was held not to have libelled plaintiff

should be paid by other defendants -

Discretion of court - Courts of Justice Act

1936, s,78- Defamation Act 1961, s.23.

Constitution - Freedom of expression

-Whether law of libel affected by consti-

tutional guarantee - Obligation of State

to vindicate good name of every citizen -

Constitution of Ireland, Article 40.3.2,

Article 40.6.1 i.