The Gazette 1980

Index to Recent Irish Cases — 1980 (Cases refer to issue of Gazette where case is listed on Green Pages — No numbering of Green Pages)

In Re Section 25 of the Trade Marks Act 1963 — Arby's Ltd. Applicants. Additional evidence from the applicant is not admissible in the High Court on appeal from the Controller of Patents, Designs and Trade Marks under S. 25 of the 1963 Act. The High Court in such proceedings is an Appellate Court, and not a Court at first instance. The Supreme Court unanimously reversed Hamilton J., who had admitted an additional affidavit in order to prove that the applicant had intended to use the trade mark in the State — MARCH. Bank of Ireland v. Lyons. Order made by Master of the High Court limiting costs to outlay and Counsel's fees and to salaried members of the legal staff of the Bank. Finlay P.. having considered the authorities in detail, held that the Order made by the Master must be varied. An order must be entered by which final judgment be entered for the Plaintiff with default costs, plus costs for hearings — MAY. Cleary v. Coffey. The Plaintiff was owner of licensed premises in Inchicore. He was also one of the executors who was entitled to one twelfth share of the residuary estate of a deceased publican who had licensed premises on Malahide Road. The premises in Malahide Road were sold to administer the estate of deceased. The employees in Malahide Road were paid full redundancy payment, but they also claimed further "Disturbance Claims Payments" as a custom of the licensed trade. The Plaintiff brought proceedings against the employee defendants for an interlocutory injunction to restrain the picketing of her premises in Inchicore, on the grounds that there was no trade dispute there. McWilliam J. held: (1) That there was a trade dispute between the deceased publican and his successors in title. (2) However, there was not at any time any business connection between the premises in Malahide Road and in Inchicore. There was consequently no discernible connection between the Inchicore premises of the plaintiff and the trade dispute which would justify the Inchicore picketing. Interlocutory injunction granted — NOVEMBER. Crowley v. Ireland, the Minister for Education, and INTO. Strike by INTO in Drimoleague National Schools from March 1976. Restricted teaching and, from January 1978, pupils transferred to neighbouring schools. The plaintiff parents contended that their children had a constitutional right to be provided with free primary education in their parish. The full Supreme Court upheld McMahon J. in the High Court that the INTO were carrying on this strike for the purpose of infringing the constitutional right of the children to primary education, that this was a conspiracy and consequently actionable. The Majority of the Supreme Court, Henchy J., Griffin J., and Kenny J. per Kenny J.) held that, as Article 42 (4) of the Constitution stated that the State shall provide for free primary education, the evidence had failed to establish that there had been a breach of constitutional duty on behalf of the State. The obligation on

the State, under Article 40 (3), to defend and vindicate the rights of the citizens is not a general one, but only an obligation to defend these rights by its laws enacted by the Oireachtas. The Minority of the Supreme Court (O'Higgins C.J. and Park J.) upheld McMahon J. in the High Court in stating that the duty imposed by the State under Article 42 (4) was a continuing one, and that consequently the Minister should have acted to stop the strike. The strike had been exercised for the purpose of infringing the constitutional right of the children to obtain free primary education. Action against the State, the Minister for Education and the Attorney General dismissed. Action against INTO upheld — JUNE. D.P.P. v. John OToughlin. Accused convicted of larceny of a muck-spreader in Circuit Court. Accused first denied this in one Garda Station, but subsequently admitted it by written statement in another. Held by the Court of Criminal Appeal:- (1) That the delay in charging him formally was only occasioned by the necessity for the Gardai to check his story. (2) That the appellant ought to have been charged, although this had not been done, after his story had failed to check out. (3) The question was not whether the claim of right that the accused was entitled to take the muck spreader because the owner could not pay his debts, was one known to the law, which the Circuit Judge adopted, but rather whether the accused had an honest belief which would excuse his action. As the Judge had declined to put this matter before the jury, there was a miscarriage of justice. Conviction quashed — MARCH. Di Murro v. ChOds. Plaintiff was tenant of restaurant and ice cream business in Fair Green, Arklow, under a Lease for a term of 10 years from 1 January 1977. The Plaintiff claimed the Lease included a yard with a store and shed at the rere of the shop. The Court looked at the history of the premises and the surrounding circumstances leading to the execution of the Lease. Held by McWilliam J. that what was demised to the Plaintiff was the same as had been let in earlier agreements, namely the shed and store and use of the yard — NOVEMBER. Duffy v. Doyle and the Attorney General. Testator had left to his wife "an average of £1.500 per year", and £500 for Masses in the Parish of Bray; he died in April 1976. Construction Summons by Executor Plaintiff as to the meaning of these terms against first defendant, widow of testator. McWilliam J. held: (1) That the testator's estate was to be applied during the life of the widow on trust to provide her with an income of £ 1.500 per year, and that capital might be applied for that purpose. (2) That the gift of the residue to Bray Parish was a valid charitable gift and that the matter would stand over until the death of testator's widow, and that the remaining funds would be applied for that purpose at that time — MARCH.

Dundalk Shopping Centre Ltd. v. Roofspray Ltd. In 1974, the PlaintifTs were constructing a shopping centre in Dundalk. The defendants described themselves as specialists in the Shell Monoform system of roofing. Although the estimate was accepted in April, the Defendants only commenced work on 24 September 1974. The Defendants continued to work irregularly until 13 November 1974. Then the Plaintiffs repudiated the contract and engaged another contractor who laid an alternative asphalt roof. The Defendants complained that, during their absence, extensive damage had been done to the roof. On 9 November 1974, a major leak occurred through the roof: as a result, the Plaintiffs' Architects advised them to engage another contractor. Finlay P. held: (1) That the change in the fall of the roof was not unknown to the Defendants before operations commenced. (2) That the Defendants held themselves out to be specialists in roofing insulation. (3) There was an implied term that the Defendants would use reasonable care and skill in their work. (4) The Defendants had failed in a fundamental term of the contract, namely to provide an effective waterproofing of the roof. (5) Accordingly, the Plaintiffs were justified in repudiating the contract, and were entitled to Damages JULY/AUGUST. Finnegan v. Planning Board. Plaintiff objected to constitutionality of Sections 15. 16 and 18 of the Planning Act 1976. Plaintiff lived four miles from Raybestos Manhattan plant in Co. Cork, and was held to have sufficient standing to have locus standi. Section 15 provided for the lodgment by an appellant to the Planning Board of a deposit of £10. Held by the Supreme Court that the purpose of imposing this deposit was to prevent appeals which lacked reality and substance and that there was no unconstitutional discrimination involved. Section 16 gave a discretion to the Board as to whether the appeal should be heard orally or otherwise. Held that this submission was fallacious insofar as it was open to the Oireachtas to prescribe that procedure. Section 18 allows the Board, if it considers the appeal vexatious or unnecessarily delayed, to determine the appeal upon giving seven days' notice and without hearing submissions from the appellant. Held that this Section enjoyed a presumption of constitutionality, and that it had to be assumed that the notice would be accompanied by an opportunity given to the defendant to put forward his case. Appeal dismissed — MAY. Frigoscandia Ltd. v. Continental Irish Meat Ltd. and Crowley. The Plaintiffs sold a refrigerating machine for a price to be paid in four instalments commencing with the placing of the order and ending when the machine was ready to operate. The machine was duly installed, but 25% of the purchase money remained unpaid by the first defendant, when the second defendant was appointed Receiver. The