The Gazette 1977

bound by agreement - Plaintiff foreigner recovering deposit - (1975 No. 748P - Finlay P. - 1/6/76). Slebel v. Kent. Formation Terms — Price — No price fixed by parties — Provision in agreement that price to be fixed as if circumstances suitable for application of machinery of named statute — No person designated to fix price — Official having power for purposes of statute but refusing to fix price for other purposes —Court having no function to nominate person to ascertain price — No concluded agreement — (1973 No. 236IP —Hamilton J. - 18/6/76). Carr v. Phelan. Implied Term Agency — Plaintiff sole distributing agent for defendant's goods - Implied term that plaintiff would not deal in goods of defendant's competitors — Termination of agency — Implied term that agency terminable by reasonable notice of termination - (1974 No. 3565P - Finlay P. - 8/10/76). Irish Welding Ltd. v. Philips Electrical (Ir.). Implied Term Set off — Implied exclusion of common law right of set off by provisions of building contract which were inconsistent with exercise of that right - (1976 No. 1124 - Finlay P. - 15/11/76). John Sisk A Sons Ltd. V. Lawter Products B.V. Rescission Contract by defendant Building Society to lend plaintiff money in return for mortgage of plaintiff's lands — Express power of defendant to rescind unilaterally before completion of mortgage — Additional term insisted upon by defendant that plaintiff should procure from third parties substantial investments in defendant Society — Investments procured by plaintiff — Subsequent rescission by defendant of contract to lend — Rescission not valid as plaintiff had altered his position — Contract to lend money not enforceable specificially — Assessment of plaintiffs damages to await further evidence — (1974 No. 230P - Finlay P. - 4/3/76). Duggan v. Allied Irish Building Society. Terms Set off — Interim certificate issued to contractor by architect in course of performance of building contract — Failure of employer to pay sum certified — Contractor's motion for summary judgment — Employer claiming right to set off unproved and unquantified counterclaims — Common law right of set-off insconsistent with terms of building contract — Contractor entitled to summary judgment for amount certified — (1976 No. 1124. - Finlay P. - 15/11/76). John Sisk A Son Ltd. p. Lawter Products B.V. CRIMINAL LAW Adjournment Remand — Jurisdiction — Return for trial — Return to Central Criminal Court — Adjournment and remand of accused in custody — Orders made before arraignment — Court having jurisdiction to make such orders - Habeas Corpus refused - (1976 No. 230 SS - McWilliam J. - 27/8/76). The State (Pender) v. Governor of Mountjoy Prison.

Appeal Court of Criminal Appeal — Function — Findings of fact and inferences therefrom made by court of trial — Treatment of such findings and inferences by court of appeal — The S.S. Gairloch (1899) 2 I.R. 1 applied - (5-8/1976 - C.C.A. - 16/11/76). The People (DJ*J*.) v. Madden A Ors. Assault Assault at common law charged —Trial — Whether charge triable summarily - No offence created by s.42 of Offences Against the Person Act, 1861 - Section 11 of Criminal Justice Act, 1951 - Summary trial authorised - (1976 No. 365 SS - Finlay P. - 29/11/76). The Attorney General (O'Connor) v. O'Reilly. Detention Treatment of detainee — Conduct of police enquiry - Whether ill-treatment would invalidate lawfulness of detention - (1976 No. 439 SS - Finlay P. - 14/12/76). The State (Harrington) v. Commissioner of Garda Síochána. Evidence Admissibility — Statement of suspect in detention —Statement made after expiration of 48 hours of lawful detention —Statement inadmissible - (5-8/1976 - C.C.A. - 16/11/76). The People (DJ>J>.) v. Madden A Ors. Extradition Corresponding offence — Foreign warrant — Warrant reciting charge of offence contrary to s. 7 of Forgery Act, 1913 - Enactment also in force in Ireland — Description of offence in warrant omitting "with intent to defraud" - Omission of phrase not fatal as obvious that offence under s. 7 of Act of 1913 was charged - (86/75 - Supreme Court - 5/7/76). Ditff v. Sheehan. Extradition Corresponding offence — Question of mixed fact and law — District Justice having power to state Case — (111/76 — Supreme Court — 22/7/76). Murphy v. Bayliss. Extradition Foreign warrant - Validity of warrant presumed "unless the Court sees good reason to the contrary" - Order of District Court for delivery of accused to foreign police for conveyance outside the State - Accused applying for habeas corpus in High Court — Application for leave to adduce evidence of foreign law to extablish that foreign court issued warrant without jurisdiction - Application refused wrongfully - Extradition Act, 1965, s. 55 - (124/75 - Supreme Court - 1/6/76). Gillespie v. The Attorney General. Fisheries Foreign vessel - Entry within fishery limits - Master of foreign sea-fishing boat - Charge that boat entered unlawfully within the exclusive fishery limits of the State contrary to s. 221 of Fisheries Act, 1959 - Charge containing additional statement that person on board boat attempted to fish - Statement inserted because penalty for conviction affected by facts in statement if proved - Conviction in terms of charge — Conviction valid - Section creating one offence only - Penalty increased if offence accompanied by

Order, 1972 (S.I. No. 305) - Industrial Training Act, 1967, s. 21 - (1974 No. 3902P - McMahon J. - 28/5/76). City View Press Ltd. v. An Comhairle Oiliúnta (Training Board).

CONTEMPT OF COURT Punishment

Criminal contempt — Scandalising court — Custody proceedings - Custody of infants contested between parents - Proceedings heard in camera — Names of infants and photographs revealed in biased article by journalist who also attacked competence and integrity of court — Apology — Fine imposed with imprisonment in default - (142/75 -

Supreme Court - 7/7/76). In re McCann & Kennedy.

CONTRACT Breach

Damages - Building contract - New dwelling — No express standards — Proper workmanlike standards implied — Cost of remedial work - Cost fixed upon prices existing at date of first reasonable opportunity to remedy breaches - Damages for owner's inconvenience and lack of enjoyment — (1974 No. 1987P - McMahon J. - 19/5/76). Johnson v. Longleat Properties. Breach Liability - Building contract - Sub contract - Employer nominating sub-contractor to erect roof of factory in accordance with sub- contractor's design - Roof defective - Damage resulting from faulty design and poor materials - Contractor liable generally for defective workmanship and materials of sub-contractor — Contractor not liable for damage resulting from faulty design of sub- contractor — Measure of damages recoverable — Cost of remedial work — Cost fixed upon prices existing at date of first reasonable opportunity to remedy defect — (1976 No. 101 SS - McMahon J. - 3/6/76). Norta Wallpapers (Ir.) Ltd., v. John Sisk A Son (Dublin) Ltd. Compromise Breach - Settlement of action for breach of building contract — Failure of defendant to implement settlement —Cause of action for breach of compromise — (1975 No. 4344P - Implied term — Appointment of doctor to private hospital — Hospital financed and managed under charitable trusts of will - Appointment permanent unless terminated by governors if insufficient funds available to enable hospital to continue in operation or unless "it should have to close down for any other reason" - Hospital ceasing as private hospital - Termination of appointment valid as term implied that power to terminate operable upon hospital ceasing to operate under management and control of governors and trustees of the charity - (1964 No. 4 Sp. - Gannon J. - 9/7/76) Browne v. Mulligan. Formation Terms - Knowledge of terms - Foreigner signing agreement without knowledge of existence of important express term and without appreciation of the function of a deposit in a sale of land - Whether foreigner McWilliam J. - 22/6/76. Murphy v. Quality Homes. Discharge