The Gazette 1978

GAZETTE

NOVEMBER 1978

RECENT IRISH CASES

payment based on continuous service under the Redundancy Payments Act 1967/71 and the Minimum Notice and Terms of Employment Act 1973. The employees appealed to the Employment Appeals Tribunal (the Respondent) which held that the appointment of the provisional liquidator did not automatically determine the contracts of all employees of the Company and did not break the continuity of employment of any of the employees, that such notice as was given to the employees did not determine their contracts of employment and that the emp l oyees were en t i t l ed to compensation under the Minimum Notice and Terms of Employment Act 1973 based on continuous service from their respective dates of commencement of employment to the their employment finally terminated at their agreed outgoing v and that they ma> also be entitled to further payments under the Redundancy Payments Acts in respect of their period in continuous service. The liquidator (appellant) appealed to the High Court against the decision and award of the Employment Appeals Tribunal. Held (per Hamilton J): that the effect of the three cases Chapman (1 Equity Law Reports 346) In re Oriental Bank Corporation Mac- DowaIs (32 Chancery 366) and Ex Parte Harding, (Law Reports Eg. 341) relied on by the Appellant, agreeing with the reasoning in Doyle v. Equitable Insurance Co. Ltd.) (a) a court order for the winding- up of a company was in the ordinary case deemed to be a discharge of the company's servants; (b) a servant could, however, be kept on the same terms as his original contract by being specifically requested to do so; (c) the effect of a winding-up order as a notice of discharge could be waived. These cases all required that there be an actual order for the winding-up of the Company. An order for the appointment of a provisional liquidator was different from an order for the winding up of a company notwithstanding that Section 220 (2) of the Companies Act 1963 provided that the winding-up of a company by the Court should be deemed to commence at the time of the presentation of the petition for the winding-up.

examining counsel mis-states evidence already given or asks a question which the witness may not understand or when he thinks that the witness has misunderstood the question". The dictum of Denning LJ . in Jones v. National Coal Board [1957] 2 All. E.R. 155 at p. 160 approved: "The very gist of cross-examination lies in the unbroken sequence of question and answer". (2) That an active participation by a judge in the examination-in-chief of witnesses is undesirable as it may give the impression to the accused or to the jury of a lack of impartiality on his part. (3) That, consequently, the trial of the accused was unsatisfactory, the verdict was set aside and a new trial ordered. D.P.P. v. McGuinness — Court of Criminal Appeal (Kenny J. with Gannon and McWilliam JJ.) — Unreported — 3 July 1978. Court Order for the appointment of a provisional liquidator does not determine contracts of employment and is not notice of discharge. Continuity of service for the purposes of Redundancy Payments Acts and Minimum Notice and Terms of Employment Act is not broken. The Appellant had been appointed provisional liquidator of Brittain Manufacturing Ltd., (the Company), by Order of the High Court on 26 May, 1977 with power to, (inter alia) "carry on the business of the company so far as might be necessary for the beneficial winding- up thereof'. The Liquidator called a meeting of the employees, informed them of his appointment and told them that from then on they would be employed on a day-to-day basis. There was no mention of dismissal and the employees continued working on the same terms and conditions as before. On 20 June, 1977, the High Court ordered that the Company be wound up and the Appellant was appointed official liquidator. The employees continued in employment for varying periods after 26 May, and were subsequently dismissed. The liquidator refused the employees L I Q U I D A T I ON EMPLOYMENT

CRIMINAL PROCEDURE Where a trial judge unnecessarily intervenes and Interrupts counsel in examination-in-chief and in cross- e x a m i n a t i o n , t he t r i a l is unsatisfactory and the verdict should be set aside. The accused was tried in the Central Criminal Court by a judge and jury on a charge that in May 1976 he raped the complainant. The defence was consent. The jury found the accused guilty of rape and the judge sentenced him. A certificate for leave to appeal to the Court of Criminal Appeal was refused but the accused applied to the Court for leave to appeal. The main ground of appeal was that the persistent interruptions by the trial judge of counsel for the d e f e n ce r e n d e r ed t he t r i al unsatisfactory and the verdict of the jury unsustainable. The cross- examination of the complainant consisted of 423 questions. 123 of these were put by the judge directly to the complainant. The 123 did not include about 60 remarks and directions to counsel. Also the interventions by the judge sometimes included a number of consecutive questions. These interventions were not confined to clarifying answers already given or clearing up ambiguities. Held by the Court of Criminal Appeal (per Kenny J.): (1) that the number of questions put by the judge and the many interventions by him made it impossible for counsel for the accused to conduct a cross-examination on the lines he considered would be most effective and could have had the effect of causing the jury to believe that the judge had formed a definite opinion as to the credibility of the complainant. Per Kenny J .: "When the defence to a charge of rape is consent, the cross-examination of the complainant is the most important evidential part of the trial. It may be long and counsel should be allowed to return to matters he has already dealt with if he has succeeded in showing that on other matters the witness is not to be believed.. The judge must be patient and confine his interventions to the minimum necessary for a fair trial. He should intervene only when cross-