The Gazette 1975

words complained of were used they were true in substance and in fact. The defendrnt also pleaded that the occasion was privileged as he was at the time involved in negotiations in regard to a merger of certain co-operative creameries. At the conclusion of the case for the plaintiffs, fol- lowing legal submissions, Mr. Justice Griffin granted a direction in favour of the defendants. He upheld the decision of the Circuit Judge and dismissed the appeal with costs to the Defendants. (Murphy v Cronin—CJork High Court on Cir- cuit—Griffin J.—unreported). In a malicious injury claim, where damage to a mine was caused the applicants can only recover the actual damage sustained but cannot recover any consequential damages. Case Stated by Circuit Judge Fawsitt under S.16 of the Courts of Justice Act 1947 upon the following facts: Early on 3rd July, 1971, six armed men raided the Mogul Mines, near Silvermines, Co. Tipperary, and overpowered security men. The raiders placed ex- plosive charges under the main electrical transformer, and detonated it, causing serious damage and closing the mine for a time. The amount of the damage amounted to £29,218 and there was consequential damage amounting to £220,000. The damage was caused maliciously and the persons who caused it constituted an unlawful assembly. The applicant mining company Mogul (Ireland) Ltd., therefore claimed a total of £249,218. The respondent County Council argued that the consequential damages were not recoverable and a Case was stated for determination by the Supreme Court. The majority of the Court (Budd, Henchy End Griffiin JJ. p e r Henchy J., held that these consequen- tial damages were not recoverable. This principle h fd already been determined by 4 out of 5 Judges of the Supreme Court in Smith v Cavan and Monaghan County Council— (1949) I.R.322, in construing S.135 of the Grand Jury (Ireland) Act 1836, hereinafter call- ed the 1836 act, and in that case, James Murnaghan J. had fully reviewed all the preceding authorities. A decision of the Supreme Court—he it the pre- 1961 or the post-1961 Court—given in a fully argued case and on a consideration of all the relevant materials should not normally be over- ruled, because a later Court inclines to a different conclusion. Even if the later Court is already of opinion that an earlier decision is wrong, it may decide in the interests of justice not to overrule it, if it has been inveterate. The applicants have not shown that the decision in Smith's case was clearly wrong, and that it required to be overruled. In the alternative, applicants argue that the consequential loss may be recovered under S.I of the Malicious Injuries (Ireland) Act 1853. The Mal- icious Injuries (Ireland) Act 1848 had extended the 1836 Act to certain cases of damage sustained by

means of certain other unlawful, riotous or tumultuous acts therein mentioned, and the 1853 Act is an ex- tension of these cases. The 1848 Act states that all dam- ages sustained under that Act are to be recovered in the same manner as under the 1836 Act for the re- covery of compensation for losses or damages. It is clear that the 1853 Act was using the word "compen- sation" to connote only what was recoverable under S. 135 of the 1836 Act, and "all damages" means damages suffered with out monetary reduction. It follows that the County Council is only liable for payment of the sum of £29,218 to the applicants. The minority of the Court (O'Higgins, C. J. and Walsh J. per O'Higgins G. J., having considered Mr. Justice Kingsmill Moore's judgment in Attorney Gen- eral v Ryan's Car Hire Ltd. (1965) I.R. 642, in which he stated that the Supreme Court is no longer bound by the principle of "Stare Decisis" felt nevertheless bound to follow the decision of the former Supreme Court in Smith's case (1949) that consequential dam- ages were not recoverable under S.135 of the 1836 Act. In considering however the wording under S.l of the 1853 Act mentioning "all damages which shall be so sustained by any person or persons by means of any such unlawful acts or offences shall and may be recovered", there is nothing to qualify or modify the word "all". Consequently there is an intention not merely to cover physical damage to the property involved, but also consequential losses sus- tained by the injured person. Consequently the appli- cants could recover consequential loss under the 1853 Act. (Mogul of Ireland Ltd. v Tipperary North Rid- ing County Council—Full Supreme Court—Sepa- arate majority judgment by Henchy J. and minor- ity judgment by O'Higgins C. J.—unreported— 14th November, 1975. The Arbitrator under the Assessment of Compensation Act 1919 had correctly decided the date of the Notice to Treat, and he should have regard to the Inspectors transcript that the Mini:ter could alter a particular zoning from agricultural to residential development. The Compulsory Purchase Order authorised Dublin Corporation to acquire compulsorily lands belonging to the claimant, Murphy, including 73 acres which the development plan designated for agriculture, and which accordingly could not be used for building, save with the consent of the Minister, under S.26(3) of the Planning and Development Act 1963, The Compulsory Purchase Order was confirmed by the Minister follow- ing a public inquiry on 7th January, 1969. On 25th March, 1969, the claimant instituted High Court pro- ceedings to have this Order declared invalid, but on 1st March, 1973, the High Court found the Order valid. Then Dublin Corporation served a Notice to Treat, followed by a Notice of Intention to enter and take possession of the lands. The claimant, having appealed to the Supreme Court, sought an interim Order, restraining the Corporation from entering the lands, but the Corporation gave an undertaking not to enter the lands, meanwhile. In April, 1974, the Supreme . 2 9 9