The Gazette 1958-61

damnified by the non-attendance of the plaintiff in Court; his Lordship stated, on the other hand, that it might be harmful to the defendants' interest to have the plaintiff in Court, however expressly the jury were told that they must ignore the plaintiff's distress and depression and deal only with the monetary loss sustained by him as a result of his wife's death. In those circumstances, Murnaghan, J., held that, in the interest of both parties, the proper course for him to pursue was to order that the plaintiff's evidence be taken on commission. (Irish ~Lcm> Times, Vol. 94, p. 146, i8th June, 1960.) Injunction ignored. The case of Fitzgerald v. Noone, a Circuit Appeal decided by Mr. Justice Walsh at the end of last term, was a salutary illustration of the truth that it does not pay to disregard other peoples' rights or the exact terms of Court Orders. The plaintiff was the tenant of the hall flat in a large house owned by the defendant, a builder. The defendant proposed to take down the upper portion of four large chimney stacks on the house and to recap them at a lower level, and had arranged to get a grant for this work. His foreman told one of the plaintiff's children to tell his mother not to light fires in the flat, but apart from this no warning of the work was given to the tenant, several of whose rooms were suddenly covered with soot resulting from the work on the chimneys and whose family was exposed to danger from stones and material dropped from the roof to the ground in front of the house. The plaintiff obtained an injunction and damages in the Dublin Circuit Court, the injunction providing that the defendant might continue the work only upon certain conditions, one being that he should not touch a kitchen chimney until he had completely reinstated the sittingroom chimney. The defendant learned that the plaintiff and his wife would be away from the flat for the following week, and thought that it would be empty and that there was, therefore, no need to observe this condition, which he accord ingly ignored. The plaintiff returned during the progress of the work to find all the chimneys out of commission and issued a notice calling on the defendant to show cause why he should not be committed for contempt of Court. In the Circuit Court the defendant was committed to prison for two months for contempt. On appeal this was reduced to seven days to run from the date of the original committal order (during which time the defendant was out on bail). The High Court affirmed the original decree for £130 damages with costs in both Courts, so that the defendant must have had an expensive lesson. (Irish ~Law Times, Vol. 94, p. 171, July, 1960.)

Frustration—prohibition of use of normal route. The existence of a possibility, appreciated by both parties at the time of making a contract, that a certain event may occur, does not necessarily prevent the frustration of the contract by that event when it does occur. By a charterparty, dated i8th October, 1956, a vessel was chartered to proceed to Masulipatan, India, and there load a cargo of iron ore for carriage to Genoa. It was provided by the charterparty that the captain was to telegraph the charterers at Genoa " on passing Suez Canal". At the date of the charterparty the parties knew that owing to hostilities in the Canal Zone the canal, which was the customary route, might be closed to shipping. In November, 1956, the canal was blocked to shipping. The ship owners claimed that the contract was frustrated. Held that, it was an implied term of the contract that the vessel was to go by the Suez Canal; that a voyage by the Cape would have been a funda mentally different voyage and, accordingly, the contract was frustrated ; Societe Franco Tunisicnne D'Armement v. Sidermar S.P.A. (1960) 2 All E.R. 529, Pearson, J. (distinguishing Carapanayoti & Co. v. E. T. Green (1958) C.L.Y. 560 ; Tsakiroglou & Co. v. Noblee Thort G.m.b.H. (1960) 5 C.L. 28). Defamation—privilege—letters to Ear Council. In Lincoln v. Daniel (June 24, 1960) the defendant sent two letters to the Secretary of the General Council of the Bar alleging professional misconduct against the plaintiff, who was Queen's Counsel. Salmon J. held, in the plaintiff's libel action, that the letters were the subject of qualified and not absolute privilege, since the Bar Council had no judicial or quasi-judicial function; and on the verdict of the jury that the contents of the letters were untrue, entered judgement for the plaintiff for £7,500. (D.C.) See also The Times, June 25, 1960. Practice—contempt—newspaper—influence onjudge. In R. v. Duffy, ex p. Nash (June 21, 1960) the applicant for a writ of attachment for contempt against the editor of, and journalists employed by a newspaper was convicted of causing grievous bodily harm after a trial which attracted considerable publicity, and forthwith announced to the press his intention of appealing. The newspaper published the next day, an article describing him as an obscure thug and a small-time hooligan with big ideas although it was said on his behalf in court, he bore a good character. The Divisional Court (Lord Parker, Hilbery, Cassels, Donovan and Edmund Davies J.J. held, dismissing the application that the case had been subjudice at the time of the publication, but that even had a judge seen the article, it was