The Gazette 1975

Recent Irish Cases

Practice—In an application by a local authority under the Planning Act for compulsory acquisition of land, it is not necessary to join the Minister as defendant if he has granted planning permission in respect of such land. Appeal against a decision of Kenny J., in which he has allowed the Minister for Local Government to be joined with the Housing Authority as a defendant in a Special Summons brought under Order 92 to enforce a claim against a Compulsory Order under S. 78 (2) of the Housing Act, 1966. The point to be determined is whether the County Council, having already granted planning permission in respect of the property com- pulsorily acquired, are estopped or debarred from acquiring it compulsorily, so that the Compulsory Purchase Order, confirmed by the Minister, is invalid. This issue essentially only involves the powers of the County Council. The Minister sees no reason why he should be defendant. The test is whether the presence in the proceedings of the Minister as a defendant is justifiable by the plaintiff as necessary for the proper prosecution of his claim. It seems that the presence of the Minister would in fact be a redundancy, and his participation is unnecessary. The appeal accord- ingly is allowed. [Fuller and Holiday Motor Inns Ltd. v. Dublin County Council and Minister for Local Government— Supreme Court (Walsh, Henchy and Griffin J J.) per Henchy J.—unreported—28th February, 1975.] A company was unable to pay its debts and passed a resolution for voluntary winding up. The plaintiff as liquidator asks the Court whether the defendant's claim for accrued holiday remuneration should be treated as a debt ranking in priority under S. 285 of the Companies Act 1963. The defendant held 3,000 shares of £1 each, and was a director of the company which had an issued capital of £6,450. Though not managing director, he was responsible for the day to day running of the business. He was paid £225 per month which he regarded as a salary. His employment was terminated by the liquidator in July, 1974, and the defendant claimed accrued holiday remuneration. If the defendant was a director, and also a salaried employee, he is entitled to priority under S. 285 for salary and accrued holiday remuneration. Having reviewed numerous authorities, Kenny J. came to the conclusion that the defendant's claim was justified. Accordingly Kenny J. directed the plaintiff to pay to the defendant in priority in the winding-up his claim for accrued holiday remuneration, as the money he received was a salary. [Re Dairy Lee Ltd.—Stakelum v. Canning, —Kenny J.—unreported—24th February, 1975. 107 In a winding-up, a salaried director is entitled to accrued holiday remuneration.

Practice—In a libel action, plaintiffs will not normally be required to furnish particulars of the persons to whom the libel was allegedly published. The defendants brought a motion in the High Court seeking an order that the plaintiffs furnish particulars of the names and addesses of the persons to whom they allege the libel complained of was published; Gannon J. granted the order. It is well established that plaintiffs will not be compelled to furnish par- ticulars of the persons to whom publication was made save in special circumstances, as the defendant is in a better position than anybody to know to whom he published the alleged libel. There are no special cir- cumstances in this case which would warrant a departure here from established practice. The appeal is accordingly allowed. [Fanning & Co. v. Surgical Distributors Ltd. — Supreme Court (Walsh, Henchy and Griffin JJ.) per Walsh J. — unreported — 27th February, 1975.] In jury action for personal injuries, the sum of £5,658 for general damages reasonable, but 63% apportionment against defendant unreasonable in view of plaintiff's contributory negligence. In respect of his injuries, the plaintiff obtained £2,342 agreed damages for out of pocket expenses, and £5,658 for general damages. Having regard to the severe injuries suffered by the plaintiff, the fact that it took 14 months before he was lit to return to work, and the degree of permanent weakness in his leg, the sum of £5,648 for general damages is not excessive, and the appeal on this point is dismissed. As to the accident, the jury were entitled to find the defendant negligent if they found that, as a careful driver, he should have been able to see the plaintiff in time and thereby avoid the collision. But the jury could not acquit the plaintiff of negligence, in that, as a cyclist on a minor road with a vision of 300 yards, he had failed to see the defendant's motor car, and cycled into its path. Consequently the jury's apportion- ment of 63% on the defendant for his part in the accident was perverse. The appeal on this point is allowed, and there will be a new trial on the issues of liability and apportionment. Per Budd J.: This case exemplifies the desirability of posing the question of damages in the issue paper in such a way as to concentrate the jury's mind on the different heads of damage—(1) Out of pocket expenses to date of trial; (2) Pain and suffering to date of trial; (3) Pain and suffering in the future, etc. [Hanley v. Morrissey — Supreme Court (Budd, Henchy and Griffin JJ. per Budd J.) — unreported — 20th December, 1974.]