The Gazette 1971

GAZETTE

THE I NCORPORATED LAW SOC I E TY OF I RELAND

V O L 65

M A Y

1 9 71

3fTS

F> "PT*

President Brendan A. McGrath

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Proceedings of the Council

O ' H i g g i n s — T he Bourke Extradition Case

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Vice Presidents James W. O'Donovan Peter D. M. Prentice

O s b o r ou g h—Con s en s u al User in the Vicarious Liability of Vehicle Own er

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Solicitors' Apprentices Debating Society Inaugural

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Secretary Eric A. Plunkett, B.A. (N.U.I.)

This Is Your Business

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Assistant Secretaries Joseph G. Finnegan, B.C.L., LL.B. (N.U.I.) Martin P. Healy, B.Comm. (N.U.I.)

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M c G r a t h — T he Future of Law

Miscellaneous Legal News:

Librarian & Editor of Gazette Colum Gavan Duffy, M.A. LL.B. (N.U.I.)

(a) Solicitors Profits Excessive

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Office Hours Monday to Friday 9 a.m.—I, 2.15—5.30 p.m. (Public 9.30-1, 2.30-4.30)

(b) Dispute Goes Back to Labour C o u rt

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Ministers and Secretaries (Amendment) Bill, 1971

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Library 9 a.m. to 5.30 p.m.

Recent Constitutional Cases:

(a) Committee of Public Accounts Act, 1970, Held Constitutional

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Telephone 784533

(b) Butchers May Op en Shops on Saturday Nights

Advertising David P. Luke (Tel. 65190)

(c) Non-Availability of Civil Legal Aid Held Constitutional

The Editor welcomes articles, letters and other contributions for publication in the Gazette. Any such contribution, whether it bears its author's name, initials or pseudonym, is, however, accepted on the understanding that its author is responsible for the opinions expressed in it and that its publication does not necessary imply that such opinions are in agreement with Coun- cil policy. Likewise the opinions expressed in the Editorial are those of the Editor and do not necessarily represent the views of the Council. ' The Gazette is published during the first week of each month; material for publication should be in the Editor's hands before the 10th of the previous month if it is intended that it should appear in the following issue. Acceptance of material for publication is not a guarantee that it will in fact be included in any particular issue, since this must depend on the space available.

Unreported Irish Cases

Book Reviews

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Dublin Solicitors' Bar Association

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O n e Hundred Years A g o

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Rules of Superior Cou r ts ( No. I) 1971

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Law Examination Results

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Third Party Procedure

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Obituary

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The Register—Registration of Title

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PRESIDENTS' MESSAGE I am very glad to welcome this new volume of the Gazette with its pristine new cover, which I feel sure will receive general approval. Law is ever becoming a more complex subject. The Gazette is to be commended in so far as it tries to foster ideas based on jurisprudence and also encourages members and other lawyers to express them, while at the same time giving full expres- sion to more practical legal problems. The Gazette in its new format deserves to be carefully read by all, because it tries to present the driest legal problems in an interesting and readable way. Long may it flourish! BRENDAN A . MC G R A T H, President. PROCEEDINGS OF THE COUNCIL March 25th: The President in the chair, also present Messrs William Brendan Allen, Walter Beatty, Bruce St. John Blake, John Carrigan, Anthony Eugene Collins, Gerard M. Doyle, Joseph L. Dundon, James R. C. Green, Thomas Jackson Jnr., Timothy K. Keai. Francis J. Lanigan, Eunan McCarron, Patrick J. McEllin, Patrick McEntee, John Maher, Gerald J. Moloney, Patrick C. Moore, Desmond Moran, Senator John J. Nash, George A. Nolan, Roderick J. O'Connor, Thomas Valentine O'Connor, Patrick F. O'Donnell, James W. O'Donovan, John A. O'Meara, William A. Osborne, David R. Pigot, Peter D. M. Prentice, Mrs. Moya Quinlan, Robert McD. Taylor, Ralph J. Walker. The following was among the business transacted. Legal Remuneration The Minister for Justice received a further deputation from the Society consisting of the President with Mr. James W. O'Donovan, Vice-President, Senator Nash and Messrs Green, Noonan and the Secretary. The President made a verbal report of the meeting with the Minister. The deputation had strongly pressed for the establishment of a single costs committee headed by a judge with representatives from the profession and the public interest and including chartered accountants. The Minister stated that he would consider the Society's representations. Legal Education A deputation from the Society was received by the Minister for Justice. The subject matter was the memor- andum submitted by the Society in June 1969 asking for legislation which would empower the Society to prescribe the system of legal education subject to judi- cial control and making proposals inter alis for a joint svstem of legal education with the Bar, a compulsory university degree and a short term of paid apprentice- ship after a period at the Society's Law School. The Minister had suggested that the Societv should seek an interview with the benchers of the Hon. Societv of King's Inns. It was decided this should be done. Legal Publications It was reported that projects are under way for a text- book on Irish Land Law to be written bv Mr. f. W. Wvlie, Queen's University, Belfast, and a work on the Law of Evidence in Ireland by Mr. Cole, Trinitv Col- lege. Dublin. Further projects are under consideration. ACTION ON FOOT OF WAGERS AND BETS In the case of R. v Weisz and Another ex parte Hector McDonald Limited (1951 2 AER 408) an application o

for attachment for contempt of court was brought against a plaintiff in an action on foot of a gaming debt and his solicitor. The action was brought by Hector McDonald Ltd. a firm of bookmakers and the endorse- ment on the writ which was settled by counsel was in the following terms. The plaintiff's claim was for the sum of £373-13-4 being the balance found to be due from the defendant to the plaintiff on accounts stated between them in writing and contained in a letter dated 26/9/1950. In fact there never had been an account stated between the parties. The court held that an action to recover money which was prohibited by statute was in abuse of the process of the court and although it was not necessarily a contempt of court to bring sucli an action, to attempt to deceive the court by disguising the true nature of the claim and putting forward a feigned issue was contempt. In the course of his judgment Lord Goddard, G.J., said : "The gravamen of the case against Mr. Martin is that the endorsement on the writ was wholly fictitious and was designed to conceal from the court the true nature of Mr. Weisz's claim. . . . To attempt to deceive the court by disguising the true nature of the claim is a contempt. Where an action is brought on a contract which is ex facie illegal the court will decline to enforce the contract whether illegalitv is pleaded or not. It is the duty of the court when asked to give a judgment which is contrary to a statute to take the point although the litigants may not take it. The very fact that on many previous occasions resort has been had to this particular form of endorsement in cases which are simply brought for the recovery of money won at betting or gaming is what gives importance to this present motion. It is time that this practice should be stopped and in no uncertain manner. The mischief is obvious. Parliament has ordered that the courts are not to be used for this purpose. Many people may be deterred from defending such actions if brought for fear of publicity. If the writ were truthfully endorsed for money won at betting it would be wholly improper to allow a default judgment to be entered. TTie duty of the Central Office would be to bring the matter before the Practice Master and he in his turn ought not and I am sure would not allow a judgment to be signed which would in effect be contrary to the provisions of the statute. If a writ is endorsed for a fictitious but apparently legal cause of action a default judgment could be signed as of course and accordingly and in our opinion this leads to the interference with or distortion of the course of justice." The Council considered this judgment and in the Society's Gazette, February 1958, the following state- ment was published. Gaming and Lotteries Act, 1956 Members asked the opinion of the Council as to the propriety of accepting instructions for the recovery of gaming debts since the passing of the Act. Section 26 (2) of the Act states that "no action shall lie for the recoverv of any money or thing which is alleged to be won or to have been paid upon a wager which has been deposited to or by the event on which a wafer is made". In a recent English case, R. v Weisz 1951 2 AER 408. Lord Goddard criticised counsel and solicitor who acted in the case for the recovery of a gaming debt in which the cause of action was described as an account stated and settled. It is understood that since the report of this case members of the Bar have been unwilling to sign pleadings. The matter was referred to a committee for a report. Having considered the com- mittee's report the Council decided to advise members

instituting proceedings on behalf of a client against the Racing Board for recovery of money won on the tote. COMMISSIONS TO SOLICITORS FOR INTRODUCING OF BUSINESS In the view of the Council it is improper and contrary to the Prevention of Corruption Act, 1905, for a solicitor or other agent to accept or seek a commission from a third party in consideration of showing preference to that third party when dealing with a client's business. This applies to commission paid by a building society to a solicitor for introducing clients' money as an invest- ment. Disclosure to the client of the fact that a com- mission or advantage is received removes the case from the prohibition. LAND COMMISSION RECEIVABLE ORDERS Following representations from the Society the Depart- ment of Lands have agreed to revert to their former practice of showing the Land Registry folio number on receivable orders for payment of land annuities. COSTS OF THE SALE OF GOOD WILL Members asked whether they were entitled to charge the full fee under the Solicitors Remuneration General Orders on the value of property sold where the value of good will was included in the price. Opinion C 32 of the Council set out at page 211 of the 1968 edition of the Members' Handbook provides as follows : In the opinion of the Council good will may be either (a) adherent good will such as the good will of a licensed premises which attaches to the prop- erty or (b) personal good will such as the good will of a solicitor's practice which follows the owner. In the former case it has been the practice of the profession to charge the scale fee on the whole consideration including the value of the good will. The Council were of the opinion that this practice is in accordance with the law notwithstanding English decisions to the contrary cited in costs textbooks. These decisions are based on the English Solicitors Remuneration General Orders, the terms of which are different to those of the Solicitors Remuneration General Order, 1884. On the recent inquiry the Council stated that if the value of the good will is shown in the contract and is included in the deed of conveyance Opinion C 32 applies. REGISTERED LAND ONE SALE WITH SEVERAL TITLES Members wrote to the Society stating that he acted for a client in the sale of property comprised in three separate folios to the Irish Land Commission. The examiner in the Land Commission had directed that the facts be submitted to the Society for a ruling as to the correct basis of charging costs. The greater portion of the lands are comprised in a folio which is subject to equities. The equity note can be cancelled only after investigating the pre-registration title. The smaller part is comprised in two folios in one of which there is no equity note and in the other of which the equity note can be cancelled under the thirty year registration rule i.e. Rule 33. L.R.R. 1966. The Council considered Opinion C 38 and C 40 in the Society's Handbook and also the opinion published in the November 1969 Gazette, page 54. The Council decided to revoke the decision published in the November 1969 Gazette. They are of opinion that where the title to registered land is comprised in several folios the solicitor for the purchaser is entitled to treat each folio separately and should 3

as follows. A solicitor is acting unprofessionally if he knowingly institutes proceedings for a client on a non- existent (as distinct from a valid although unenforce- able) contract or cause of action. It is therefore unpro- fessional to threaten or institute proceedings on behalf of a client for a gaming debt which falls within the prohibition of the statute even although no attempt is made to disguise the nature of the action. A summary of this opinion was printed in Opinion DR 12 of the Council in the Members' Handbook. Opinion DR 70 dealing with instructions to sue on wagering contracts also stated that the Council advised a member who had been instructed to recover an amount arising out of a wagering transaction that he could on the client's instructions write a letter requesting payment of the amount alleged to be due but without any request for costs. The letter should contain no threat of proceedings failing payment and member was advised that he should take no further steps in the matter. The Gaming Act, 1845, 8 and 9 Vic. Cap. 189, Section 18, enacted that all contracts or agreements whether by parole or in writing by way of gaming or wagering should be null and void and that no suit should be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won on any wager. This Act was repealed by the Gaming and Lotteries Act, 1956. Section 36 (1) enacted that every contract by way of gaming or wager- ing is void. Sub-section (2) enacts that no action shall lie for the recovery of any money or thing alleged to be won or to have been paid upon a wager or which has been deposited to abide the event on which the wager is made. Sub-section (3) enacts that a promise expressed or implied to pay any person any money paid by him under or in respect of a contract to which the section applies or to pay any money by way of commission, fee, reward or otherwise in respect of the contract or of any services connected with the contract is void and no action shall lie for the recovery of any such money. The view of the Bar Council is that since the court cannot entertain an action based on a gaming trans- action it would be an abuse of counsel's privilege to assist in bringing any such matter before the court to sign his name to any documents connected with such a proceeding. In order to remove doubts the following ruling was made on 7/11/1957. Whether it is proper for counsel to settle an affidavit in support of a claim on foot of a wagering transaction. It is undesirable that counsel should settle such affi- davits. Further it is undesirable for counsel to settle originating documents in claims on foot of wagering transactions or to hold a brief for the plaintiff in such claims. The Tote The position, however, is different with regard to claims against the Racing Board for bets on the total- isator. Counsel has advised that the ruling of the court on gaming debts does not apply having regard to the decision in Tote Investors Limited v Smoker (1968, 1 Q.B. 509) in which the English Court of Appeal held that a contract by a backer who puts money on the tote is not a contract by way of gaming or wagering and is therefore not governed by the provisions of the Gaming Act, 1845, Section 18. The basis of the decision is that the tote can neither win nor lose, merely receiving a commission on the turnover of bets and that the essence of a gaming or wagering transaction is that each party must be a winner or a loser. The Council having considered this decision stated that there is no profes- sional objection which would prevent a solicitor from

above those justly due. Where interest is payable under such security no distinction appears to exist between costs for contentious and costs for non-contentious matters. (4) Future Costs (a) Non-contentious business Paragraph 7 of the S.R.G.O., 1884, mentioned above entitles the solicitor to accept from his client security for the amount to become due to the solicitor for busi- ness to be transacted for him and for interest on such amount but so that interest is not to commence until the ambunt is ascertained either by agreement or taxation. ' (b) Contentious business As mentioned, Section 16 of the Attorneys and Solici- tors Act, 1870, enables a solicitor to take security from his client for future fees, charges and disbursements to be ascertained by taxation or otherwise. If the agree- ment includes a provision of interest on future costs it would have to be in writing under Section 4 of the same Act and would be subject to examination by the taxing master. The position as regards non-contentious business would appear to be adequately covered by par. seven of the Solicitors Remuneration General Order, 1884, if the reference to interest at 4 per cent were changed ot a reference to interest at current bank rate from the date of delivery of the bill and if the taxing masters were given a direction to include the interest automatically on taxation of the costs. The inclusion of similar provi- sions as regards contentious business would also require amending legislation. Lastly, the matter would have to be considered from the point of view of the public relations of the profession. It would probably have a detrimental effect although it is now becoming common practice of trading and com- mercial concerns to notify customers that outstanding amounts will carry interest at a specified rate. The personal relations of solicitors with their own clients from the operation of such provisions would be a matter for individual practitioners. Many would not wish to claim interest from established clients. The member who raised the question noted the grow- ing tendency of commercial firms to tighten credit to one month from the date of presentation of the account. The Revenue Commissioners charge interest on monies outstanding and it appears that the solicitor is in a more difficult position. It has not been the practice of clients to pay or solicitors to charge interest on long standing accounts. The member suggested with a view to minimising the situation where work is finished and fees are outstanding for years despite application conse- quent upon the solicitor being reluctant to sue his own client whether it would be feasible in any legislation dealing * with solicitors' accounts that the accounts should bear interest at current bank rate from a date three months after the furnishing of the account. If this interest was to be computed annually at a com- pound or even simple rate it would have the effect of giving people an inducement to pay their accounts promptly. The Council while considering the matter of consid- erable importance to the profession were of the opinion that it would be inopportune at the present time to apply for any alteration in the law or practice of the taxing office in regard to the matter of interest on costs. It is, however, a matter to be borne in mind in any negotiations with the statutory committees dealing with costs or with the Department of Justice.

apportion the purchase price between the several folios in the same proportion as the rateable valuation for the purpose of ascertaining the costs. INTEREST ON COSTS The Council was asked to advise a member who drew attention to the unfavourable position of solicitors who often remain out of their costs and outlay for consid- erable periods. Even where interest can be charged it is at a rate of 4 per cent and the costs and outlay when received are often of considerably lower purchasing power than at the time when the work was done. Accountants use the term "discounted cash flow" to indicate the effect of inflation on delayed receipts. The legal position with respect to interest on solicitors' costs is shown below. (1) Before Judgment (a) Non-contentious business Section 5 of the Solicitors Remuneration Act, 1881, enacted that any general order under the Act might authorise and regulate the taking by a solicitor from his client of security for future remuneration in accordance with any general order to be ascertained by taxation or otherwise and the allowance of interest. Clause 7 of the Solicitors Remuneration General Order, 1884, pro- vides that a solicitor may accept from his client and a client may give to the solicitor security for the amount to become due to the solicitor for business transacted by him and for interest on such amount but so that interest is not to commence until the amount is ascer- tained either by agreement or taxation. A solicitor may charge interest at 4 per cent per annum on his disburse- ments and costs whether by scale or otherwise from the expiration of one month from demand from the client. It has been held that the mere delivery of a bill is sufficient demand sot hat a delivered bill for non- contentious work carries interest at 4 per cent from one month after delivery at least in the absence of unreas- onable delay in claiming interest. It is not apparently the practice of the taxing masters to compute interest under paragraph seven and must therefore be recovered by action [re Keeping and Gloag (No. 2) (1888) 23 L.J.N.C. 63]. (b) Contentious business Section 17 of the Attorneys and Solicitors Act, 187G, provides that on every taxation of costs or disburse- ments the taxing officer may allow interest at such rate and from such time as he thinks just on monies dis- bursed by the solicitor for his client and monies of the client in the hands of the solicitor and improperly retained by him. This does not apparently apply as between party and party. (c) By agreement An agreement by the client to pay interest on costs if valid in other respects would appear to be binding on the client provided the solicitor explains to the client that apart from agreement interest is not payable on taxed profit costs in contentious matters unless the court in its discretion so orders. (2) After Judgment The usual interest at 4 per cent or the current rate chargeable on judgment debts is payable from the date of the judgment. (3) Common Law A solicitor may take security from his client for costs due but not for future costs nor for costs over and

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the Irish philosopher Francis Hutcheson, who wrote of this question in his posthumous System of Moral Phil- osophy published in 1755 as follows: "As to state-criminals : as frequently good men are on both sides in civil wars and state-factions, as well as in solemn wars, the general custom is very humane, that they should universally find protection in foreign states; and the refusal of delivering them up, or of allowing them to be pursued and taken, is never deemed a just cause of war, if, while they reside abroad they are forming no new conspiracies or hostile attempts against the present governors of their country; who should be satisfied with their banishment, and loss of their for- tunes, and of the hopes they had in their native land." Later authorities took the view that political offenders should not be surrendered because one State does not have any stake in preserving the political system in operation in any other State. This was a nineteenth- century view which is no longer tenable in the light of alliances like NATO and SEATO which are specifically designed to preserve the political systems in existence within their member States. Another justification for the exclusion from surrender of political offenders would be to protect freedom of thought and expression, freedom to oppose any government with which one is in disagree- ment. However at the end of the day although there is general acceptance of the principle of non-surrender of political offenders, there is no clear definition of who is or who is not to be surrendered, because there is no clear modern rationale underlying the principle. In essence therefore the position is that, despite apparent agreement on the principle, in practice what occurs is that it is left to each State, either its adminis- trative or judicial organs or sometimes both, to rule upon the question, who, for the purposes of the appli- cation of the principle of non-surrender by that State, is a member of the class of persons who are not to be surrendered. Until 1965 the old imperial Extradition Act, 1870, was in force in the Republic. This provided for the surrender of any person charged with any one of a list of scheduled offences, all of them being ordinary offences, prima facie involving no political element (treason, espionage, etc., are not scheduled). Section 3 of the Extradition Act, 1870, then provided that sur- render was not to take place if the person requested could show that his surrender was requested in respect of an offence of a political character (i.e. an ordinary scheduled offence, but which because of the motive from which it was perpetrated or owing to the surround- ing circumstances, acquired an ádditionai element, giving it a political character). British courts consistently refused to enunciate any definitive principle to establish whether an offence was of a political character, although it was clear that an ordinary offence committed with a political end in view in the course of a political distur- bance was probably an offence of a political character provided that the means adopted were not dispropor- tionate to the end and provided also that the end involved a conflict as to which of two contending groups should control the State. Other activities were not precluded from acquiring a political character, but where the line was to be drawn was for the Gourts in the first instance although the relevant Minister had a separate discretion to decide the issue for himself. Other countries did not adopt the enumerative method of defining extraditable offences but instead made all offences punishable with a penalty above a certain minimum in principal extraditable offences. It was on this system that a draft convention produced by the Council of Europe was based, and upon this Euro- pean draft convention the Irish Extradition Act, 1965. 5

THE BOURKE EXTRADITION CASE by DR. PAUL O'HIGGINS Fellow, Christ's College, Cambridge In 1961 George Blake was sentenced to forty-two years in prison having been convicted of spying for the Soviet Union contrary to the Official Secrets Act, 1911. This sentence imposed by an English court and upheld on appeal was regarded by many as unusually severe. While serving his sentence in Wormwood Scrubs, Blake be- came acquainted with a fellow prisoner, an Irishman, Seán Bourke. As counsel for Bourke was later to explain "during an extra-mural course in English literature which was then being organised by London University" the two became friendly. The acquaintance ripened and Bourke agreed to arrange Blake's escape, which he did after he himself was released from prison. In 1966 with Bourke's aid Blake escaped, and eventually found his way, with Bourke's further assistance, to the Soviet Union, where Bourke later followed him. In 1968 Bourke returned to Ireland from Moscow, and was arrested in Dublin on foot of a British warrant which had been endorsed for execution in Ireland under the terms of the Irish Extradition Act, 1965, Part III. In Janitary 1969 proceedings were issued on Bourke's behalf under Section 50 of the Extradition Act before the President of the High Court, Mr. Justice O'Keeffe. Section 50 provides that a person may not be surren- dered if the offence with which he was charged "is a political offence or an offence connected with a political offence". The offence with which Bourke was charged was aiding a prisoner to escape contrary to the British Prisons Act, 1959, Section 39. Proceedings before the President of the High Court were marked by an able presentatioh of his case by Bourke's counsel, Mr. D. Costello, S.G., despite an unusual number of interruptions from the bench, and a somewhat futile discussion over the admissibility of the report by Harvard Research on Extradition, a sem- inal work which has been constantly referred to by numerous municipal courts, including the Irish Supreme Court, in cases involving an interpretation of the prin- ciples governing international extradition. At the end of proceedings in the High Court the President decided that the offence committed by George Blake, espionage, had been a political offence. The President further decided that "although I am by no means satisfied that my decision is right, I think that the offence of helping him to escape can be classed as being an offence connected with a political offence and that for the purpose of this legislation it ought to be so classed". Accordingly under Section 50 of the Extra- dition Act the President directed the release of Seán Bourke, the offence with which he was charged under the English warrant as being an offence connected with a political offence. The Attorney General and the Com- missioner of the Gárda Síochána appealed against the President's order to the Supreme Court. The appeal was dismissed on 31 July 1969 and after one year's delay, the Supreme Court gave the reasons for its deci- sion on 31 July 1970. The background of the legal problem facing the Supreme Court lies in the loose but generally accepted notion that political offenders should be exempted from surrender by one state to another. There has never been a satisfactory definition either of a "political offence" or of a "political offender" because the raison d'etre of the principle of non-surrender has never been clearly established. The first publicist in these islands to argue for the non-surrender of political offenders was

was in turn based. Extraditable offences were now defined by the severity of punishment that might be imposed consequently a different principle of exclusion had to be adopted, and the formula adopted in the Convention and in the Irish Act was to say that surrender should not be granted for any offence "which is a political offence or an offence connected with a political offence". The Supreme Court in Bourke's case therefore had to decide whether the offence charged against Bourke of aiding a prisoner, George Blake, to escape was a poli- tical offence or an offence of a political character. It was conceded that the offence, espionage, for which Blake was imprisoned was a political offence. It was not argued for Bourke that his own offence of aiding a prisoner to escape was a political offence. Indeed this would have been difficult in the light of the reasons given by Bourke for his action (1) that he looked upon Blake as a political prisoner who had sacrificed a great deal for his Communist sympathies; (2) he con- sidered that Blake's forty-two year sentence was savage; (3) that he felt compassion for Blake, and (4) that he had come to the conclusion that Blake's ideas and his own as to what constituted a just society were then very similar. Bourke denied explicitly any sympathy with Communism or the policies of the Soviet government. It was. argued for Bourke, however, that he had aided a political prisoner to escape; that Bourke's offence was connected with a political offence, that is to say with the offences for which Blake had originally been impris- oned, and lastly that Blake's offence in escaping was itself a political offence and that therefore Bourke's assistance in the escape was itself an offence connected with a political offence. The Chief Justice, with whom the other members of the Supreme Court (save Fitz- gerald J.) agreed, reached the conclusion that Blake's offence of escaping to the Soviet Union "was as political as if in war he had deserted to the enemy lines and changed his uniform". It is difficult to dissent from this. (In any case of course the original offence charged against Blake was political.) The offence of Bourke in aiding him to escape was an offence connected with a political offence. Therefore since the terms of Section 50 were to be regarded as mandatory [may not be surrend- ered was to be interpreted as shall not be surrendered] Bourke was entitled not to be surrendered and the decision of the High Court was upheld. A number of points of interest arise. First of all the Backing of Warrants (Republic of Ireland) Act, 1965, which is the British counterpart of the special Anglo- Irish arrangement for mutual extradition provides for the non-surrender of persons charged with offences of a political character , so that if the case had been the other way round, and if the Irish Republic had been seeking Bourke's surrender by the United Kingdom it is highly likely that he would have been surrendered, because his offence would be regarded as not having itself a political character. This is an odd consequence of establishing an international arrangement by simul- taneous pieces of municipal legislation, which although probably identical in intent, do not use the same terminology. Secondly the Supreme Court was prepared to resort to the travaux preparatoires to the European Conven- tion as an aid to the interpretation of the Irish statute. Looking at these the Chief Justice concluded that the phrase "offence connected with a political offence" was to be given a wide interpretation and did not require that the connected offence should itself have been com- mitted from a political motive or that it should in any way be directed to aiding or procuring or be prepara-

tory to the commission of the political offence. But he then added : "I would reach the same conclusion on a consideration of the terms of Section 50 of the Extra- dition Act, 1965, without reference to the travaux preparatoires of the Convention". One welcomes the liberal attitude adopted by the Supreme Court to the invocation of relevant aids to the interpretation of an Irish statute, specially where such statute was speci- fically passed with the objective of implementing the terms of an international treaty. However, there may be certain dangers in this, if invocation of the travaux préparatoires is resorted to in circumstances where the rules of international law would not justify such invo- cation. The Vienna Convention on the Law of Treaties, 1969, may be regarded in this respect as probably embodying proper customary rules of international law in relation to the use of travaux preparatoires. Article 32 of the Convention provides as follows : "Recourse may be had to supplementary means of interpretation including the preparatory work ot the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of Article 31 [which embodies the general principles of interpretation of treaties], or to determine the meaning when the interpretation according to Article 31 (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable." The broad literal interpretation of the phrase "offence connected with a political offence' was not ambiguous or obscure, nor was it manifestly absurd or unreasonable, therefore the only circumstance justifying resort to the preparatory work to the treaty would be to confirm the meaning already attributed to it after applying the ordinary principles of treaty interpretation. I think we can regard the Supreme Court's use of the preparatory work as an example of their use for confirmatory pur- poses, and no more. There is, however, a caveat; if one is going to follow international law in invoking the aid of preparatory work when interpreting a phrase in a statute taken from a treaty to give effect to which the statute has been passed, the initial interpretation of the sometimes over-literal principles of Irisn municipal interpretation ought to be disregarded but ought instead to follow the more flexible and liberal principles of treaty interpretation, such as for example are laid down in Article 31 of the Vienna Convention, the basic one of which is that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". The Supreme Court's willingness to consider travaux preparatoires is a departure from the British traditional reluctance to go behind the text of an act of Parliament embodying a treaty, and is more in accordance with US practice where the courts are by no means averse from examining the preparatory work. Another point of interest in the Supreme Court's decision was that the Court, following the same approach as the House of Lords R. v Armah [1963] 3 All E.R., 177, expressed disapproval of the idea of taking account in its deliberation of undertakings given on behalf of the law officers of a foreign country regarding the ques- tion whether, if surrendered, the person concerned would be tried for another offence, possibly a political offence. Paradoxically the British House of Lords in Keane v Governor of Brixton Prison (The Times, 2nd April 1971), has now expressed the view that such assur- ances are properly admissible and can be taken into account by the Court, although they should not be regarded as conclusive.

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case excepted. (Implying "consent" is not quite the same task as implying "authority" for the two concepts themselves are distinct; an employee may have his employer's consent to use the latter's vehicle but, il the purpose for which the vehicle is used is the employee's own, no question of implied authority arises : O'Connell v Bateman (1932) 66 I.L.T. & S.J. 202.) A stock problem is the "borrowing" of a vehicle without prior approval. One approach is to hold, without further ado, that this provides no evidence of authorised use: Dowling v Robinson (1909) 43 I.L.T.R. 210. The other is, in the apt case, to enquire into the purpose of the particular "borrowing" and, if some benefit could possibly be said to accrue to the owner from it, to hold that such user is capable of being treated as impliedly authorised. It thus becomes an issue fit to be left to a jury, as in Palles C. B.'s minority opinion in Dowling's case, where he was impressed by the evidence to the effect that the driver had used the vehicle, inter alia, to pay a debt of the owner; or the basis of the court's own ruling, as in Thompson v Reynolds [1926] N.I. 131, where the rider, the owner's brother, was returning the motor cycle to the owner from the garage in which it had been left for repairs. Brady v Morris and Igoe (1938) 73 I.L.T.R. 24, may be contrasted with these last two cases : an employer was held not responsible for the negligent driving of his delivery van by a friend of the authorised substitute for his regular driver (the friend had been permitted to drive by the substitute driver and had diverted to deliver a casual parcel). Judges who favour the issue of implied authority being left, wherever pos- sible, in the hands of the jury, are probably not un- affected by fear of perjury where the plaintiffs remedy is seen to depend on arrangements internal to a business firm : Dowling v Robinson, per Palles C. B., and Boyle v J. B. Ferguson Ltd. [1911] 2 I.R. 489, per Gibson J. An absence of information as to the relationship between the owner and the driver places the court in an impossible position. If the plaintiff is held responsible for this state of affairs, his action must fail. Such Was the result in the curious case of Powell v McGlynn and Bradlaw [19021 2 I.R. 154. The plaintiff, who had been injured by a pony and trap used by the first defendant and owned by the second, alleged in his statement of claim that he had been injured by the servant or agent of the latter. Bradlaw asked for particulars of the name of the servant or agent and received the reply that this detail lay within his own knowledge. At the trial the alleged relationship was never explained. The possi- bility of the meritorious plaintiff's defeat at the hands of the unco-operative owner has not gone unremarked and. as a result, the suggestion has been put forward that the fact of ownership, once admitted, should raise a presumption of consent (the effect of this then being (i) that a burden of leading proof that there was no consent rests with the owner and (ii) that there is an issue to go to the jury). In Powell's case the existence of an analogous presumption was stoutly denied, in particularly forceful language by Lord O'Brien G.J., but Courts in England, faced with the identical problem, have decided otherwise: Barnard v Sully (1931) 47 T.L.R. 557. Later advice given by the Judicial Com- mittee of the Privy Council ( Rambarran v Gurucharran [1970] 1 All E.R. 749) favours the placing of restric- tions on the circumstances in which the plaintiff should be permitted to avail of the presumption and expressly disapproves of certain dicta in Powell's case. Barnard v Sully and not Powell v McGlynn and Bradlaw was relied on by Judge Shannon in Irish cases in 1931 (Kiernan v Ingram [1931] L.J. Ir. 119) and 1937 (Cullen v Tracey [1937] Ir. Jur. Rep. 72) in order to 7

CONSENSUAL USER IN THE VICARIOUS LIABILITY OF THE VEHICLE OWNER by NIAL OSBOROUGH, LL.M. Lecturer in Law, University College, Dublin

A vehicle owner may be made liable for injuries caused through the negligent use of the vehicle by someone other than himself. This doctrine of vicarious liability, introduced by statute in 1933, is now to be found in Section 118 of the Road Traffic Act, 1961; it comple- ments existing rules on vicarious liability at common law. Two conditions have to be satisfied before the statutory doctrine operates. It must be shown, first, that user of the vehicle was consented to by the owner and, secondly, that user at the relevant time was in accord- ance with the terms of such consent. Among the prob- lems raised by the satisfaction of these requirements are certain ones of proof. Proof of user with consent If the owner admits that the driver had his consent, either express or implied, there is no special difficulty. Should such an admission not be forthcoming, what becomes crucial is the proper inference to be drawn from whatever evidence is adduced. A denial of consent is founded on evidence of varying adequacy, and this necessarily affects the outcome. An owner argues from a position of strength when he is able to set up, either by himself or through others (the driver even: Gibson v Keeney [1928] N.I. 66), the existence of a categorical refusal of consent. Such a position, however, is not unassailable. It was early recognised in an ordinary master and servant case that there might occur exceptional circumstances in which such a refusal could be treated as waived : Coogan v Dublin Motor Co. (1915) 49 I.L.T.R. 24. And recog- nition of such a possibility, however slender on the evidence, has led a majority of the Supreme Court, in the leading statutory doctrine decision, to rule that the interpretation of an owner's refusal is an issue properly to be left to the jury : Maker v Great Northern Railway Co. and Warren [19421 I.R. 206. The owner's position is at the outset much weaker, if the only supporting evidence is his own. If, for instance, a member of a family claims he has had his father's consent, the father, as owner, will be hard pressed to maintain the reverse, especially where other evidence shows that the member had driven the vehicle on pre- vious occasions. The family member's own evidence may not be untouched by the desire to avoid a criminal prosecution but, if the additional evidence is present, the owner can scarcely expect the Court to make a direction in his favour: cf. Beechinor v O'Connor [1939] Ir. Jur. Rep. 5. What is here, fundamentally, a problem of conflicting evidence is not confined to the area of statutory vicarious liability; it emerges, too, where an employer maintains that an employee has not had permission to, say, drive his delivery van but other witnesses testify to the opposite: Duffy v Orr (1911) 75 I.L.T.R. 130. The problem, put another way, is one as to whether consent can be implied. Again there is a close analogy with a problem much agitated in the cases on common law vicarious liability, the scope of authority and the scope of employment. These cases raise issues essential to an appreciation of the statutory doctrine's limitations and are of particular relevance in the absence of any substantial judicial consideration of such matters in statutory doctrine litigation, Maker's

throw the onus of proof on the owner but this approach was not followed by O'Byrne J. in Hassett v Skehan and Redmond [1939] Ir. Jur. Rep. 86, when giving a direc- tion in favour of the owner and refusing to acknowledge the existence of the presumption. The patent discre- pancy in these cases was explained at the time ("The Road Traffic Act, 1933" (1941) Irish Jurist 19) on the basis that the plaintiff could not avail of the presump- tion where incapable of indicating the relationship of the owner and driver and, in addition, of adducing any evidence sufficient to establish agency (as in Hassett's case). This view as to the circumstances in which the presumption comes into play should be con- trasted with that recently expressed by Lord Donovan in the Judicial Committee of the Privy Council in Rambarran v Gurucharran [1970] 1 All E.R. 749, at p. 751 : "Where no more is known of the facts . . . than that at the time of an accident the car was owned but not driven by A it can be said that A's ownership affords some evidence that it was being driven by his servant or agent. But when the facts bearing on the question of service or agency are known, or sufficiently known, then clearly the problem must be decided on the totality of the evidence." Proof of user in accordance with the terms of the consent Terms are express or implied and cover a variety of matters. An owner may expressly insist that the driver drive only when accompanied by the owner ( Kiernan v Ingram) or someone else. Where the driver is engaged in driving the owner it does not. of course, require a statutory doctrine based on consensual user for the attribution of vicarious liability. No special evidence problem arises. Terms may relate to the purpose for which the vehicle is to be used. An employee of a garage is given permission to drive the owner's car to the garage for repairs but the owner cannot be held responsible when the employee, at the behest of the garage proprietor, uses the owner's car to drive some customer home : Mulligan v Daly (1939) 73 I.L.T.R. 34. Approval of user for such a purpose is, on any common sense view, unlikely to have been forth- coming and a lawyer so arguing must face, in addition to the problem of proof, the limits of a judge's or jury's credulity. The owner may state that the vehicle is not to be used to give lifts to passengers. In the absence of un- equivocal supporting evidence the prudent course of action for the trial judge to follow is, presumably, to leave the matter to the jury. The equivalent dilemma is present in ordinary master and servant cases and, in recent litigation, such a course of action has been recom- mended, the recommendation being accompanied by suggestions as to what matters the jury should advert t o: Kearney v Clare Lime Co. [19661 I.R. 338. In another case the decision (of Haugh J.) on the facts appears to have been undulv restrictive: Doyle v Fleming's Coal Mines Ltd. (1953) 87 I.L.T.R. 198. A driver may have general authoritv to drive but not at certain times or for a purpose of his own. Where informal understandings are seen to govern the relation- ship of the owner and the driver the evidential burden facing the plaintiff is particularly onerous. No cases arising under the statutory doctrine are reported but there is some authority from master and servant law. The cases in this area illustrate the further point that the issue of the terms of an authority or a permission is not always distinguishable from the issue of their exis- 8

tence; the same would apply under the statutory doc- trine to the terms of a consent and its actual existence. In Boyle v J. B. Ferguson Ltd. [1911] 2 I.R. 489, a car salesman was driving two girls in a car belonging to the firm; on such occasions, the salesman maintained, business could be attracted to his firm. The court refused to disturb a jury verdict in favour of the plaintiff. Kiely v McCrea and Sons Ltd. [1940] Ir. Jur. Rep. 1, provides a contrast. A commercial traveller was required to "use his best endeavours to effect the sale of the goods of the company" but the car placed at his disposal was not to be used for private purposes. An accident occurred when the traveller was using the car to drive employees of firms with which he did business from a G.A.A. function. The traveller contended that his presence at the function was calculated to promote the sales of his company's goods. The High Court (Hanna, O'Byrne J.J.) upset a Circuit Court finding that use of the car for the purpose in question was impliedly authorised. Where it is established that there has been consent to general user but the owner insists that the consent was subject to restrictions a serious evidential problem faces the plaintiff It would seem reasonable in such circum- stances to operate a presumption in favour of the plain- tiff, thus imposing on the owner the burden of showing the limited character of the consent. In English master and servant law an employer conceding authority to his employee for certain purposes has had raised against him a presumption that at all relevant times the latter was acting within the scope of his employment: Laycock v Grayson (1939) 55 T.L.R. 698. This approach was eschewed by Palles C. B. in the earlier Irish case of Dowling v Robinson in which the judge maintained that something more was first necessary. It is suggested that a presumption equivalent to that operated under English master and servant law should, when the occa- sion arises, be recognised for purposes of statutory doctrine litigation. An owner, finally, may stipulate that the vehicle is not to be loaned by the driver to anyone else. Such a stipulation, for purposes of the statutory doctrine, falls to be treated as a refusal of consent to such other party, even though it is at the same time a condition attached to the consent given to the first driver : Maker v Great Northern Railway Co. and Warren. Maker's case shows that an ingenious lawyer may succeed with the argument that a prohibition on lending to a third person is not as final as it sounds. Proof of circumstances suggestive of an implied waiver of the prohibition then becomes central. Variation in the terms of a consent must be shown to have been properly communicated to the driver before the owner can seek to take advantage from it. There is no statutory doctrine case but O'Connell v Minister for Finance i and Mullan [1945] Ir. Jur. Rep. 18, is auth- ority enough. The plaintiff was injured due to the negligence of the driver of a state car driven under a permit allowing it to be used for Local Defence Forces purposes. On the occasion in question the driver was returning to their homes artistes who had appeared at an entertainment designed to raise funds for the L.D.F. A circular had previously been distributed forbidding cars to be used for the purpose of carrying passengers to and from such entertainments but it was uncertain as to whether its contents had been brought to the atten- tion of the driver responsible for the particular accident. Judge Sheehy held that the circular did not entail that transport was not to be provided for artistes appearing at a benefit entertainment but, even if it did, that the permit was absolute in the authoritv it conferred and had not been effectively countermanded.