The Gazette 1971

After a six-day hearing, a jury was unable to agree whether the wife petitioner was entitled to a judicial separation, or divorce a mensa et thoro. The wife applied for costs of this abortive trial against the defen- dant husband. Murnaghan J., having reviewed in detail the rules of court and the case law on the subject, found there was nor eported decision on this matter in Ireland. However it was held that the judge had juris- diction to order the husband to pay the costs of the abortive action. The fact that the petitioner asked for a jury—and consequently laid herself open to an abor- tive result—should not disentitle her from costs. Accord- ingly these costs, when taxed, should be paid by the respondent husband. Note —The defendant husband has since died. [Bradley v Bradley; Murnaghan J.; unreported; 11th January 1971.] Custom Custom of fishermen was to land their boats at "The Crook", at the mouth of the Boyne, near Mornington, Co. Meath. These fishermen have fished for centuries for salmon and mussels in the river. Until 1968, "The Crook" was waste land, from which there could only be access from the south. The defendants purchased seven acres at the northern end of "The Crook" in order to build a fishmeal factory. Plaintiffs claimed that by right of immemorial custom, they had a right to dry their nets and to beach their boats; this had happened since 1906, and probably for centuries before. This practice of beaching ships was open and done as of right. If the practice had existed during living memory it raises the presumption that the custom has existed since before 1189. This custom is of benefit to the village of Mornington, though doubtless unreasonable to the defendants in wishing to build their factory. The fac- tory built by the defendants has deprived the plaintiffs of their effective use of the customary strip of land. The three plaintiffs, on the basis that they have been wholly and permanently deprived of their customary rights, *»re each entitled to £624 damages. [Felix, Patrick and Vincent Mullen v Irish Fishmeal Co. Ltd. and Sam Henry and Partners; Kenny J.; unreported; 9th November 1970.] Death Duties The father of defendants acquired licensed premises in Pearse Street, Dublin, in 1922. From 1945, the defen- dants, his two sons, were working with him. One of the defendants, Thomas, was getting married in 1960 and asked his father to make provision for him. which the father agreed to do. They went to a Dublin solicitor, who was not aware that a saving in estate duty could be effected by a transfer made in consideration of mar- riage, but this solicitor was aware of the delays which a voluntary transfer would experience in the stamp office. The solicitor advised the father to sell the premises to the two sons for £16,000 and a deed of assignment was duly executed in May 1961; this duly transferred the premises and the liquor licence to his sons and him- self as joint tenants. Although stamp dutv of £160 was duly paid in July 1961 none of the £16,000 was ever paid, nor was it expected to be paid. They claimed that £10,666 (two-thirds) was an asset of the father liable for estate duty. The solicitor, who died in 1967. made a declaration that the £16,000 was never demanded by the father. It was obvious that evidence could be given that despite the receipt, no consideration was ever paid. It was contended that the sons, if sued by the father, could have successfully counterclaimed for rectification

of the deed, by deleting references to the purchase price. But, in the unreported case of Lowndes v Dc Courcy (1960), the Supreme Court held, that, in the absence of mistake or fraud, a deed cannot be rectified because it has consequences which the parties did not foresee, if the transaction which they intended finds expression in the document which it is sought to rectify. Kenny J. claimed that the sons would succeed in an action against the father on the basis of a "promissory estoppel", by which the father would be estopped from claiming any part of the purchase money. Having cited Denning J.'s decisions in the High Trees case (1947), and in Combe v Combe (1951) and Lord Hodson's remarks in Ayayi v Briscoe (1964) 3 A.E.L.R. 556, Kenny J. held that the doctrine of promissory estoppel related to existing contractual rights if they come into existence under a contract to be entered into which cannot be enforced. It was clear that the father repre- sented to the sons that he would never seek payment of any of the £16,000. The assumption of the legal lia- bility created by the deed was sufficient to raise the presumption against the parent. Kenny J. therefore held that the revenue claim for death duties failed, because the father would not have got judgment against the sons for any part of the purchase price, if he had sued them for it. [Revenue Commissioners v Moroney; Kenny J.; unreported; 11th January 1971.] Limitation Infant, who was seventeen at time of accident on 17th September 1965, was a passenger in the vehicle of his employers, and this vehicle was in collision with the defendant's vehicle, whereby he sustained injuries. The plaintiff was paid and accepted workmen's compen- sation in respect of this accident. The plaintiff also wished to avail of his right to bring civil proceedings against the defendant. The defendant pleaded on a preliminary point that the claim of the plaintiff was statute-barred by virtue of Section 7 of the Workmen's Compensation (Amendment) Act, 1953, which limited the institution of proceedings for damages to twelve months after date of accident, or, if substantial grounds were shown for delay, within two years. The plaintiff in reply pleaded that he was an infant at the time of the accident, and that consequently these statutory limitations did not apply to him. The Supreme Court in Connell v Mclnerney (1957) unreported, had held that the acceptance of compensation rather than pur- suing a common law action was not to the benefit of the infant. But this did not determine the question whether it was to the benefit of the infant to accept compensation rather than pursue the common law action. O'Keeffe P. said there was much to be said on each side, bilt on the whole he came to the conclusion that the plaintiffs claim for damages was statute-barred. [Hickey v Electricity Supply Board; O'Keeffe P.; unreported; 4th February 1971.] Matrimonial Nullity suit by petitioner husband claiming marriage void by reason of fraud and duress. Wife before mar- riage alleged intercourse took place on two occasions and was thereby rendered pregnant; petitioner denied this. Wife threatened petitioner that, if he did not marry her, she would tell his parents and others that she was pregnant, and thus induced him to get married to her. which he did on 27th September 1962. This marriage was never consummated. However, the wife

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