The Gazette 1991

g a z e t t e

a p r i l 1991

Viewpoint - Contd. from p. 99 It is sometimes said of the British that they find it difficult, in matters affecting the Irish, to learn from t he ir mi s t akes. The ir r ecent insistence on derogating from the European Convention on Human Rights to enable them to keep in their law the 7 days detention period contained in their Prevention of Terrorism Act, following a finding in the Brogan case t hat this breached the Convention, and their subsequent decision to put a new Prevention of Terrorism Act on the s t a t u te books wo u ld t end to support that view. It is to be hoped that, in matters of such importance, affecting the liberty of the subject and going to the heart of our criminal justice system, the worst we will ever be accused of in this country is lethargy or, perhaps, even incompetence, and that, there will not be serious cause for regret at the failure to implement the necessary procedural reforms in this important area. •

the "difference of opinion" one regrets that Costello J did not ex- amine the contract in any detail nor explain why he preferred Finlay P's finding. Since no clause of the agree- ment in terms excludes a set-off and since, as Lord Salmon has pointed out, mere provision for payment cannot in itself rule set-off out, why precisely did he find that the parties must have excluded this right? One other aspect of Rohan Construction perhaps deserves com- men t: the application by the defendant for a stay under 0.42, r.17. Costello J refused t h is after considering what he stated were the principles laid down in Agra Trading -v- Minister for Agriculture 20 With all respect, Agra Trading was hardly in point, since the defendant there applied not for a stay but for a plenary hearing. Barrington J's judgment is concerned wi th the intrepretation of and relationship between 0.19 r.2 and 0.37.r.6; at no point did he refer to 0.42 r.17. Clearly the question of whether it is appro- priate to send a motion for final judgment to plenary hearing is quite different from whether a stay should be placed on j udgmen t; it is impossible to k n ow wh e t h er Barrington J. in Agni Trading Would have grated a stay if asked. Costello J did not, it seems, consider Murphy J's statement in Hegarty that had he not given leave to defend he would without hesitation have granted a stay under 0.42 r.17. Surely Hegarty rather than Agra Trading was the appropriate authority? Conclusion Having entered t h is maze of conflicting views, is there a way out again? The test laid down in John Sisk -v- Lawter is, on the face of it, a better guide that the speeches in Gilbert-Ash ; yet it is submitted, the attitude of the Law Lords, and of Murphy J in Hegarty that the kind of language relied on by Finlay P. is too ambiguous to exclude the right of set-off is the correct method of applying that test. One may regret that no party has appealed any of the relevant judgments to the Supreme Court: when the matter does reach them it is submitted that while they should approve the John Sisk test, they should like Murphy J be extremely wary of using it to find an exclusion of set- off in the absence of very clear language.

NOTES 1. See Rohan Construction -v- Antigen Ltd. [1989] I.L.R.M. 7 83 at 784. 2 . [1989] I.L.R.M. 783. 3 . [1985] I.R. 524. 4 . Finlay R unreported, 15th November, 1976. 5. [1958] 2 Q.B. 9. 6 . [1971] 1 W.L.R. 1205. [1971] 2 All E.R. 1389. 7 . [1971] 1 W.L.R. 1205 at 1209 [1971] 2 All E.R. 1389 at 1393. 8 . [1974] A.C. 689. 9 . Viscount Dilhorne, Lord Diplock and Lord Salmon. 1 0 . [1974] A.C. 6 89 at 722. 11. See [1974] A.C. 6 8 9 at 723. 1 2 . See [1974] A.C. 6 89 at 718. 1 3 . See [1974] A.C. 6 89 at 703. 1 4 . See [1974] A.C. 6 89 at 719. 1 5 . At p. 8 of his unreported Judgment. 1 6 . (See [1974] A.C. 6 8 9 at 723. 1 7 . An extract from the relevant Clause is helpfully set out in the case note on Hegarty -v- Royal Liver Friendly Society in Lyden and MacGrath "Irish Building and Engineering Case L aw" at p.358. 1 8 . See [1974] A.C. 6 89 at 726. 1 9 . [1985] I.R. 5 24 at 528. 2 0 . Barrington J. Unreported, 19th May, 1983.

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