The Gazette 1978

now passed. During those three years the condition was observed. Compliance with the condition had no affect on the sewage disposal facilities. Those facilities were the same as they were when the condition was imposed. So it was urged that the condition could not be deemed good because its supporting reason was wanting in feasibility of purpose. Held (per Henchy J.) that the Court found it unnecessary to give a ruling as to whether the condition was invalid from the beginning for having been given for a bad reason because even if the condition was held to have been validly imposed it no longer had any force. The condition had become a dead letter which must now be ignored in constructing the present legal force and validity of the permission. The Court held that the Plaintiffs' challenge to the validity of the permission, whatever strength it might have had when the proceedings were instituted must now be held to have failed. KflUney & BaOybraek Development Association Limited v. The Minister for Local Government and Templefln Estates ij—hm (No. 2) Supreme Court (Henchy J., with Griffin and Parke JJ.) — Unreported — 24 April, 1978. Drawer not entitled to set off counter- claim for unliquidated sum against amount due on BID of Exchange. The Plaintiffs supplied yam to the second-named defendants. The defendants gave the plaintiffs two Bills of Exchange in payment for the yarn and subsequently dishonoured them. The defendants claimed that the yarn contained a twist which made cloth made from it defective. The defendants attempted to minimise their alleged loss by selling the cloth made from the defective yarn at a lower price and estimated their nett loss at £21,907.05. The plaintiffs claimed £25,586.56 with interest on foot of the Bills of Exchange and obtained judgment for that sum in the High Court. The defendants had sought a stay on the ground that the defendants should be allowed to bring a counter-claim for loss for breach of contract but the NEGOTIABLE — BILL OF EXCHANGE

President of the High Court had refused to accede to defendants request. The defendants appealed to the Supreme Court against this refusal. Held (per Henchy J.) that it was well settled in a line of cases from Warwick v. Nairn (1855) 10 Exch. 762 to Nova (Jersey) Knit v. Kammgarn Spinnerei (1977) 2ALL E.R. 463, including the unreported Irish case of Prendergast v. Biddle (No. 36 of 1957, Supreme Court 31 July, 1957) that a counter-claim for unliquidated damages under a contract for sale cannot be raised against a claim on a bill of exchange. Gerrit Vandelden &Company & Ore v. Scafldd Gentex Limited & Anor. Supreme Court (Henchy J., with concurring judgment by Kenny J., and with O'Higgins CJ . and Griffin and Parke JJ.) — Unreported — 21 July, 1978.

prosecutor. (3) an in one of their cases that prejudicial information was proffered. Applications to have the conditional order made absolute were taken together. The Superintendent deposed that he had read out the convictions from a photostat copy of the Garda Criminal History Sheet and that neither the prosecutors nor their solicitor raised any objections nor required him to be examined under oath. The Prosecutors submitted that the convictions should have been proved in a regular manner and they should have been given an opportunity of considering and challenging such evidence. The evidence as given constituted at best hearsay by an unsworn witness. Prosecutors sought that the conditional order be made absolute without any distinction between c o n v i c t i on and s e n t e n ce notwithstanding that they had pleaded guilty. Held: (i) Before passing sentence the Court should hear evidence of the antecedents and character of convicted persons. (ii) The Prosecutors should have been given an opportunity of admitting or denying each alleged previous conviction before such information was put before the Court. In respect of any conviction disputed by an accused, proper evidence such as production of a Court Order, would be required to put the fact of such conviction before the Court. (iii) This should have been done before the solicitor for each prosecutor addressed the Court. (iv) The failure to hear the c o n v i c t ed p e r s on and h is representative on these matters after they had been read in Court was a "failure in procedure of one of the basic principles of the administration of justice". (v) Since these orders, though offending against basic principles of justice, were made within jurisdiction the Court will exercise its discretion not to quash them. At present appeals are pending in the Circuit Court and any irregularities can be examined there. The State (Stanbrldge) v. District Justice Mahon; The State (Murphy) v. District Justice Mahon - High Court (Gannon J.) — 6th June 1978 — unreported.

Certiorari - CRIMINAL LAW Evidence of pervious convictions which are In dispute should be properly proved — a failure to hear submissions from Defendant on evidence of convictions Is a breach of basic principles of the administration of justice — courts discretion to decline to quash order nonetheless applied. Prosecutors had pleaded guilty at Mountmellick District Court to charges relating to breaking and entering. After submissions wore made on their behalf by their solicitor, the Garda Superintendent informed the Court of their previous convictions. Both accused were convicted and sentenced to twelve months imprisonment. Both prosecutors separately applied for and obtained conditional orders of certiorari on the grounds (1) that the alleged previous convictions had not been properly proved, (2) that some of the alleged convictions did not relate to the