The Gazette 1978

1 MAY 1978

GAZETTE

from Portlaoise to Mountjoy. Before leaving Portlaoise, the prosecutors were searched and the notes were taken by prison officers who retained the papers until requested at Mountjoy by the Solicitor for the prosecutors to hand them to him for the purpose of the consultation. When the consultation was concluded, the prison officers insisted on having the notes returned to them notwithstanding the protest of the Solicitor. The prison officers stated that they examined the notes to ascertain the nature of the papers and verify that they were instructions or notes for the Solicitor and not material prepared for other purposes. On their return to Portlaoise, the notes were returned to one of the prosecutors. The prosecutors applied for an Order of Prohibition directing that the D.P.P. do not proceed further with the trial and that the Special Criminal Court do not proceed further with the trial and that the Special Criminal Court do not proceed further with the determination or hearing of it. They also applied under Article 40 of the Constitution for an Order of habeas corpus and for an inquiry under Article 40.4. The grounds of the application were that the Solicitor was obstructed in his attempt to obtain proper instructions from his clients and that confidential notes prepared by the prosecutors for him were read by the prison officers or were retained by them for periods and under circumstances which led to the inference that they had been read or could have been read by them to the prejudice of the prosecutors at their trial, and that justice could not be done under such circumstances and certainly could not be seen to be done. Held: (per McWilliam, J.) that the orders would be refused, and that the question of whether the examination of communications was necessary was a matter for the trial court to deal with. However, any notes examined by the prison officers and on which they were satisfied that the notes were, in fact, instructions for the purpose of the defence and nothing else, would have to be allowed to be handed over to the Solicitor.

RECENT IRISH CASES CONTRACT Rules to apply in measuring damages and breach of contract — extension of existing headings. The matter in dispute between the parties was the rules to apply in measuring damages which it had been agreed had become payable by the Defendant to the Plaintiff arising out of a breach of agreement between them relating to the sale by the Plain- tiff in the premises of the Defendant of fashion fabrics. In a lengthy judge- ment reviewing the submissions made to him by Counsel on behalf of the parties, the President of the High Court held that the following general rules should apply in assessing the damages: "1. The general rule is that the assessment of damages in tort and in breach of contract should have as its purpose the putting back of the injured party, in so far as money can do so, to the position in which he would have been had the wrong not been comitted and thus should be referable to the loss suffered by the injured party. 2. To this general rule there are exceptions both in cases of tort and in cases of breach of contract some of which may be different for each particular cause of action and some of which are the same. 3. Where a wrongdoer has cal- culated and intended by his wrongdoing to achieve a gain or profit which he could not other- wise achieve and has in that way acted mala fide then irrespective of whether the form of his wrong- doing constitutes a tort or a breach of contract the Court should in assessing damages look not only to the loss suffered by the injured party but also to the profit or gain unjustly or wrongly obtained by the wrongdoer.

tection of a party to a contract from uncertain or extensive damages, against which he had no opportunity to provide by the terms of the contract, should not apply where he has thus acted mala fide. 4. In eases of damages for breach of contract, though not in tort, the necessity to create certainty as to the obligations which may arise from the contract and from a breach thereof and the just necessity for permitting the parties to provide for such obligations, make it necessary to confine, in cases where the element of mala fides has not occurred, damages to the loss suffered by the injured party even though such restriction may result in a profit to the wrongdoer. 5. In assessing damages for loss incurred by an injured party either in tort or by reason of breach of contract the Court, if satisfied that a loss has occurred, , under a particular heading, should not by reason of difficulty in proof of the amount of that loss, as distinct from failure to adduce available evidence of it, be deterred from assessing compensation for it and should in this context be both alert and ingenious in assessing a general sum for damages even though it may involve some element of speculation . . . " Hickey & Co. Ltd. v. Roches Stores (Dublin) Ltd. — High Court — Finlay P. — unreported — 14th July, 1976. communications between a prisoner awaiting trial and his Solicitor have been examined and retained by the prison authorities, the proper Court to review such acts is the court of trial; and Orders of Prohibition, directing that the D.P.P. and the Special Criminal Court do not proceed further with the trial, and habeas corpus, seeking the release of the prisoners, would be refused. The prosecutors had prepared a comprehensive note of the circumstances of their case for the purpose of a consultation with their Solicitor. As the consultation had been arranged for Mountjoy Prison, the prosecutors had to be brought CRIMINAL PROCEDURE Where written

If the assessment of damages confined to the loss of the injured party should still leave the wrongdoer profiting from his cal- culated brcach of the law damages should be assessed so as to deprive him of that profit. In extending this measure of damages, which heretofore has been confined to tort, to cases of breach of contract I have acted upon a conclusion that the pro-

The State (John O'Hagan and James Monaghan) v. The Governor of Portlaoise Prison. - High Court (McWilliam, J.) — unreported — 29 November 1977. 9