The Gazette 1967/71

LICENSING Oral evidence essential

Colman Byrne, who died in December, 1965. Since the High Court proceedings Mr. Harvey 'iad carried out inquiries and had traced Dr. Sethi, who was living in Saskatoon, Canada, and who had indicated ihat he would be available. Chief Justice O Dalaigh said that Nurse Slattery had also been traced. She was married and living in Massachussetts and had stated that she would have been of very little help as her memory was not very clear. The Chief Justice said that it had been pointed out by Miss Dowd's counsel that Professor Byrne did not examine Miss Dowd, but merely advised Mr. Galvin, presumably on the basis of written records and reports which were still available. The Chief Justice said that the reasons advanced by Mr. Galvin for saying he would be seriously prejudiced if the case were allowed to proceed, had been shown to be no longer matters of substance. Mr. Galvin had, within a matter of months of the operation, been on notice that hhe reason for the failureo f the operation was being questioned. The Court could not fail to take notice that for their evidence of the treatment of their patients, surgeons and physicians did and must rely on their written records to refresh their memories. Medical evidence in modern conditions was largely a matter of written records. It should also be said that in an action with regard to a surgical operation, the patient rarely knew anything; what had happened was known only to the defendants. Mr. Justice Walsh and Mr. Justice Budd agreed with the judgment. (Dowd v. Kerry Co. Council)—unreported—Supreme Court—July 1970. LANDLORD AND TENANT Premature Application for New Business Tenancy, being Procedural could be determined, if Landlord waived his rights. The House of Lords (Lord Reid. Morris, Pearson and Diplock, and Viscount Dilhorne) hold that a tenant of business premises who apolied to the court orematurely for a new tenancy under the Landlord and Tenant Act 1954, contrary to the time limits specified in section 2Pf31 for making uch an apolication, may have his application heard and determined :c the landlord expressly or bv conduct waives his right to object to the premature application for the subsection is nrecedural only and does not oust the iurisdiction of the court. Their Lordshios, Viscount Dilhorne dissenting, so held on the construction of the subsection, but bv a majority Lord Reid and Lord Pearson dissenting, they held that on the facts of the case before them the tenants had not established that the landlords had by their conduct wpived their right to ignore or object to the premature application. The majority of the House so deciding, dismissed an apDeal bv tenants, from the decision of the Court of Appeal (Lord Tnstir» F^^innd Davies and Sir Gordon Willmer, Lord Justice Sachs dissenting)—(1969) 3. W.L.R. 799 upholding a preliminary objection that their application to the county court for renewal of a lease of business premises under the 1954 Act which was opposed bv the landlords. Zenith Investments (Torquay) Ltd., could not be entertained bv reason of section 29(3) since it had been made less than two months after a reouest for a new tenancv. Kammis Ballrooms Co. v. 7enith Investments (Torquay) Ltd.—The Times, 14th July 1970.

in a

in an interim transfer

licensing application In Anril 1969, Findlaters sold their licensed premises in Main Street, Bray, to Bernard Electrical Holdings Ltd., who have not since used the premises for the sale of intoxicating liquor. Instead a subsidiary company of Bernard Electrical, Hazlett Ireland) Ltd. has used it as a showroom and shop for television, radio and electrical goods. In September 1969, a nominee of Bernard Electrical named Fallon applied to Bray District Court for an interim transfer of the publican's license attached to the premises; District Justice Carr granted the application, but it was signed by District Justice Delap. On 27th Seotember 1969, the prosecutor, Daniel Doyle a Bray publican, obtained a conditional order of Certiorari from Henchy J. directed to District Justices Carr and Delap to bring up for the purpose of being quashed the interim transfer order; the District Justices did not show cause against making absolute the conditional order, but Fallon averred that the order was made in excess of jurisdiction, on the ground that there was no examination on oath of Fallon as required bv Rule 97 (1) of the District Court Rules 1948. It is clear that an interim transfer merely gives authority to carry on the existing licensed premises until the next Annual Licensing District Court. The only prerequisites required in order to enable a District Justice to grant an interim transfer are (al that the required notices have been given; (b) the necessitv for the transfer, i.e. as a result of sale or assignment of the licensee's interest in the premises, and (c) that the applicant is not dis qualified bv law from holding a license. This iurisdiction is to be exercised bv the Justice under Rule 97 "if he shall think proper so to do after an examination on oath of the necessary parties." Held. That such sworn testimony implied an oral examination before the Justice. The compliance of this Rule was mandatory, particularly as at a hearing for an interim transfer, it is not necessary to produce the original license nor the original convevance; accordingly the Justice exceeded jurisdiction when he made the order without first hearing sworn testimony. However, as the prosecutor had no interest in an interim transfer which is now spent, he could not gain anvthing from having the order of certiorari made absolute. Accordingly, in the exercise of his discretion, Henchy J. allowed the cause shown and discharged tbp conditional order. (The State (Daniel Do"le) v. Ditrict Justices Carr and Delap—Unrenorted—Henchv J.—2nd Tune 1970). Economic Loss not a head of damage. The Court of Appeal (Lord Denning, Lord Justices Winn and Buckley) dismissed an appeal by the de fendants building contractors from a preliminary issue of law by Mr. Justice Thesiger, that they could be sued in negligence by the plaintiff typewriter manufacturers in Brimingham. The Court held that building contractors who damaged an electric cable while working on a road and so cut off power to a factory nearby can be held liable in negligence for damage to the factory's machinery and consequent loss of profit but not for any other economic loss. (S.C.M. [U.K.] Ltd. v. W. J. Whitall & Son, Ltd. — The Times, 18th July, 1970.) 62