The Gazette 1967/71

beyond the jurisdiction of the Circuit Court—which was approved. The Judges of the Supreme Court have inspected the plaintiff's scars, and consider that, as her scars are permanent, she must put up with them for the rest of her life. They considered that Murnaghan J. applied a purely subjective test in the case. In view of the fact that Section 11 of the Justice Act, 1936, favours the retention in the High Court of actions which might otherwise be commenced in the Circuit Court, the appeal should be allowed, and the case should be retained in the High Court. [Ronayne v Ronayne and Greeny; Full Supreme Court; Unreported; 16 July 1970.] Shipping The court stressed the undesirability of disturbing an established commercial practice when it upheld the practice followed since 1914 of not treating the arbitra tion clause in the Centrocon form of charterparty as incorporated into bills of lading issued under the charter- party unless the clause is germane to the subject matter of the bill of lading or incorporated by clear and explicit words. [The Annerfield; Court of Appeal; The Times, 29 October 1970.] The right of shipowners to withdraw their vessel under a time charter from the charterers' service because there was an accidental default in payment of the hire charge over the weekend October 3 to October 5 was held to be defeated by the charterers' tender of payment shortly before the shipowners gave them notice of the with drawal. [Empresa Cubenede Fletes Lagonisi Shipping Co. Ltd.; Court of Appeal; The Times, 30 October 1970.]

dance with the Patents Act, 1949, has created a new problem in patent law which only new legislation can remedy. The House, Lord Diplock dissenting, so said in allow ing an appeal by American Cyanamid Company, of New York, in the first "leapfrog" appeal under the Adminis tration of Justice Act, 1969, direct from the decision of Mr. Justice Graham, last February, in favour of the Upjohn Company of Kalamazoo, Michigan, on their petition for the revocation of letters patent granted to Cyanamid in relation to a new antibiotic, porfiro- mycin, on the grounds that the complete specification, published in the United Kingdom in August 1963, did not satisfy the requirements of the patent law. [American Cyanamid Company v The Upjohn Com pany; House of Lords; The Times, 28 October 1970.] Plaintiff passenger injured when defendant driver swerved suddenly and struck a ditch caused by a tyre burst. Defendant having bought the car from Transit Ltd. alleged that they had sold the car with a dangerous tyre which they had warranted perfect. Plaintiff then got leave to add Transit Ltd. as second defendant, but, the claim in the amended statement was not stated conjunctively but only disjunctively. The trial was held in Cork before Murnaghan J. without a jury. At the end of the plaintiff's case, Murnaghan J., having overruled his previous decision in Macken v Westmeath County Council to the effect that an application for a direction should not be ruled upon until after evidence for the defence had closed, acceded to the application of Tran sit Ltd. for a direction. The action continued against the defendant, but the jury were unable to agree. It is to be stressed that the defendant and Transit Ltd. were not concurrent wrongdoers, but rather separate wrongdoers —therefore Section 32 (1) of the Civil Liability Act, 1961, does not apply. The Supreme Court (6 Dalaigh C.J., Walsh and Fitzgerald J. J.) held that Murnaghan J. should in justice have afforded plaintiffs counsel a further opportunity to offer evidence against Transit Ltd. Consequently the appeal was allowed, and a retrial was ordered against both defendants. [O'Sullivan v Noonan; Supreme Court; Unreported; 31 July 1969.] Appeal against order of Murnaghan J. transferring the case from the High Court to Castlebar Circuit Court. Infant plaintiff, girl of seven, was injured as a passenger in her father's car when an agent was driving, and when this car collided with the second defendant in October 1966. The infant plaintiff's injuries were mostly facial. She was examined by surgeons on her own behalf and on behalf of defendant in May 1969. The defendant's surgeon was of the opinion that the scars could be hidden by the application of cosmetics, while the plain- fiff's surgeon thought there would be a permanent disfigurement on her face. Murnaghan J. thought that an award of £500 would be a good award. Counsel for plaintiff argued that the correct test was laid down in Connor v O'Brien (1925) 1 I.R. 24—that if the amount of damages recoverable is the only question involved in this decision, the court must consider whether the plain- fiff could contemplate the recovery of a sum for damages Practice

Solicitor's Authority See under Trade Unions, Keys and another v Boulter and others, Court of Appeal, 21 October 1970.

Statute of Limitations See under Damages, Penrose v Mansfield.

Trade Description A milk retailer who offered milk for sale in bottles capped with foil tops embossed with an accurate descrip tion of the milk when the bottle glass bore embossing of the names of concerns owning the bottles, did not contravene the Trade Descriptions Act, 1968, by offering for sale milk to which a false trade description was applied. FDonnelly v Rowlands; Q.B.D.; The Times, 3 Nov. 1970.] 148