The Gazette 1964/67

The Secretary, The Incorporated Law Society of Ireland, Four Courts, Dublin 7. PROFESSIONAL NEGLIGENCE — HILL v HARRIS Dear Sir, The problem referred to by Messrs. Ellis & Moloney (GAZETTE, Vol. 59, No. 9A, March, 1966) arising out of the British Court of Appeal case of Hill v Harris could have quite a simple solution, as regards new occupation leases or sub-leases at rack rents. If the Council of the Incorporated Law Society would recommend that all such leases contain a war ranty that the grantor is entitled to grant the tenancy which he purports to grant, then in the case of a lease with such a warranty an action for damages would lie by the grantee if the warranty were broken. This would obviate the necessity of investigating the title of the lessor. New legislation would of course be required to deal with existing leases. May I suggest that a similar war ranty be implied by law in such cases, notwithstanding any agreement to the contrary. Such an implied warranty would also have the effect of ameliorating the tenant's position where a tenant pays rent to a mortgagee creating a yearly tenancy. The provisions of the mortgagee's own lease are not automatically included, so that the lessee may lose possession if the mortgagor has the right to possession against the mortgagee. Again, if a mortgagor grants a lease not under his statutory power and without the consent of the mort gagee, on the latter taking possession the tenant will have to vacate. The suggested warranty, if implied, would give him a remedy. Finally, implication of the warranty would also give the tenant a remedy when an underlease is determined due to it having been granted out of a lease for a longer term than the lease. Yours faithfully, G. M. Golding. RULES OF THE SUPERIOR COURTS (No. 1), 1966 These Rules prescribe procedures in respect of the winding up of companies and replace Order 74 and Appendix M of the Rules of the Superior Courts (S.I. No. 72 of 1962). The Rules also amend Order 77 of the same Rules in addition to inserting additional Rules in that Order which deals with funds in Court. The Statutory Instru ment No. 28 of 1966 is available from the Govern ment Publications Sales Office, G.P.O. Arcade, Dublin 1, price 4/6d.

profits is available from the Revenue Commis sioners. The booklet does not purport to be a legal interpretation of the provisions but it is intended to be of assistance to solicitors, account ants and others who have to deal with the subject. The booklet may be obtained free on application to the Office of the Revenue Commissioners, Dublin Castle, Dublin 1, or any Inspector of Taxes. The booklet was published in February, 1966 and is known as Leaflet No. 11. CASE LAW Order in which Witnesses may be Called On the hearing of matrimonial proceedings by a wife before a metropolitan stipendiary magist rate, the magistrate refused to allow counsel for the husband to call a witness until he had first called the husband. Held : the discretion lay with counsel to call what witnesses he chose in what sequence he chose, and accordingly in the case would be re mitted for re-hearing before another magistrate. Briscoe v. Briscoe (1966) 1 All E.R. p. 465. Ministers of State may now be sued without obtaining beforehand the fiat of the Attorney- General The plaintiff sought a declaration that the defendant Minister was under an obligation to provide an efficient and proper telephone service to his residence in Co. Wicklow. There was a lengthy indeterminate correspondence between the plaintiff's solicitors and the Attorney-General be tween June 1963 and February 1964. Finally, in February 1964, a plenary summons was issued against the Minister in which the plaintiff sought a number of declarations. In May 1964, Kenny J. ordered that the pre liminary issue whether Section 2 (1) of the Ministers and Secretaries Act 1924 is repugnant to the Constitution in so far as it requires the fiat of the Attorney-General to be obtained before the proceedings be validly instituted against a Minister of State be tried. After argument, Kenny J,. in delivering judgment on this issue, first stated :— (a) The Constitution of the Irish Free State 1922 did not contain any provisions about an Attorney-General; (b) Section 6 of the Ministers and Secre taries Act 1924 vested in the Attorney-General of Saorstat Eireann the business, powers, authorities, duties and functions formerly vested in or ex ercised by the Attorney-General and Solicitor- General for Ireland; 10

INCOME TAX, SUR-TAX AND CORPORATION PROFITS TAX

A booklet summarizing the Statutory Provisions relating to the allowances for capital expenditure on scientific research and mining development and temporary relief in respect of taxation of mining