228 / 364
The Secretary,
The Incorporated Law Society of Ireland,
Four Courts,
Dublin 7.
PROFESSIONAL NEGLIGENCE — HILL v HARRIS
Dear Sir,
The problem referred to by Messrs. Ellis & Moloney
(GAZETTE, Vol. 59, No. 9A, March, 1966) arising out of
the British Court of Appeal case of Hill v Harris could
have quite a simple solution, as regards
new
occupation
leases or sub-leases at rack rents.
If
the Council of
the
Incorporated Law Society
would recommend that all such leases contain a war
ranty that the grantor is entitled to grant the tenancy
which he purports to grant, then in the case of a lease
with such a warranty an action for damages would lie
by the grantee if the warranty were broken. This would
obviate the necessity of investigating
the title of
the
lessor.
New legislation would of course be required to deal
with existing leases. May I suggest that a similar war
ranty be
implied
by law in such cases, notwithstanding
any agreement to the contrary.
Such an implied warranty would also have the effect
of ameliorating the
tenant's position where a
tenant
pays rent to a mortgagee creating a yearly tenancy.
The provisions of the mortgagee's own
lease are not
automatically
included,
so
that
the
lessee may
lose
possession if the mortgagor has the right to possession
against the mortgagee.
Again, if a mortgagor grants a lease not under his
statutory power and without the consent of the mort
gagee, on the latter taking possession the tenant will
have
to vacate. The suggested warranty,
if
implied,
would give him a remedy.
Finally, implication of the warranty would also give
the tenant a remedy when an underlease is determined
due to it having been granted out of a
lease for a
longer term than the lease.
Yours faithfully,
G. M. Golding.
RULES OF THE SUPERIOR COURTS
(No. 1), 1966
These Rules prescribe procedures
in
respect
of the winding up of companies and replace Order
74 and Appendix M of the Rules of the Superior
Courts (S.I. No. 72 of 1962). The Rules also
amend Order 77 of the same Rules in addition
to inserting additional Rules in that Order which
deals with funds in Court. The Statutory Instru
ment No. 28 of 1966 is available from the Govern
ment Publications Sales Office, G.P.O. Arcade,
Dublin 1, price 4/6d.
INCOME TAX, SUR-TAX AND
CORPORATION PROFITS TAX
A booklet summarizing the Statutory Provisions
relating to the allowances for capital expenditure
on scientific research and mining development and
temporary relief in respect of taxation of mining
profits is available from the Revenue Commis
sioners. The booklet does not purport to be a
legal interpretation of
the provisions but it
is
intended to be of assistance to solicitors, account
ants and others who have to deal with the subject.
The booklet may be obtained free on application
to
the Office of
the Revenue Commissioners,
Dublin Castle, Dublin 1, or any Inspector of
Taxes. The booklet was published in February,
1966 and is known as Leaflet No. 11.
CASE LAW
Order in which Witnesses may be Called
On the hearing of matrimonial proceedings by
a wife before a metropolitan stipendiary magist
rate, the magistrate refused to allow counsel for
the husband to call a witness until he had first
called the husband.
Held :
the discretion lay with counsel to call
what witnesses he chose
in what sequence he
chose, and accordingly in the case would be re
mitted for re-hearing before another magistrate.
Briscoe v. Briscoe (1966) 1 All E.R. p. 465.
Ministers of State may now be sued without
obtaining beforehand the fiat of the Attorney-
General
The plaintiff sought a declaration
that
the
defendant Minister was under an obligation to
provide an efficient and proper telephone service
to his residence in Co. Wicklow. There was a
lengthy indeterminate correspondence between the
plaintiff's solicitors and the Attorney-General be
tween June 1963 and February 1964. Finally, in
February 1964, a plenary summons was
issued
against the Minister in which the plaintiff sought
a number of declarations.
In May 1964, Kenny J. ordered that the pre
liminary
issue whether Section
2
(1)
of
the
Ministers and Secretaries Act 1924 is repugnant
to the Constitution in so far as it requires the
fiat of the Attorney-General to be obtained before
the proceedings be validly instituted against a
Minister of State be tried. After argument, Kenny
J,.
in delivering judgment on
this
issue,
first
stated :—
(a) The Constitution of the Irish Free State
1922 did not contain any provisions about an
Attorney-General;
(b)
Section 6 of
the Ministers and Secre
taries Act 1924 vested in the Attorney-General of
Saorstat Eireann the business, powers, authorities,
duties and functions formerly vested in or ex
ercised by
the Attorney-General and Solicitor-
General for Ireland;
10