The Gazette 1978

GAZETTE

NOVEMBER 1978

The appointment of a provisional liquidator who had been given liberty by the Court to carry on the business of the company could not and did not operate to determine the contracts of employment of the employees of the company and could not amount to notice of discharge to all persons in the employment of the company. Such an order and its effect on the contracts of employment of the servants of the Company must be and was completely different to an order for the winding-up of the company. Whether or not the employees were given effective notice to determine their contracts of employment was a question of fact. Donnelly (Uquidator-Brittaln Manuf. Lt d .) v . Gl e e s on and ors (Employment Appeals Tribunal) — High Court — Hamilton J. — unreported — 11 July 1978. EXTRADITION — Rule of Speciality — Application to Court of Criminal Appeal for Certificate to appeal to Supreme Court refused. The defendant appealed to the Court of Criminal Appeal against the decision of the Special Criminal Court convicting him of certain offences. At the outset of the hearing of the Appeal Counsel for the defendant informed the Court that he had instructions to withdraw the Appeal. The Court then ordered that it would dismiss the appeal, no formal notice of abandonment having been served. The defendant then sought a certificate under Section 29 of the Courts of Justice Act 1924. Under this section the Court of Criminal Appeal could issue a certificate that a point of law of exceptional public importance had risen in an appeal and that is was desirable in the public interest that a further appeal should be taken to the Supreme Court. The defendant relied on several grounds in seeking this certificate. (1) He alleged that in an affidavit put before an English Court at proceedings for his extradition the Irish At t o r ney Gene r al had warrented to that Court that the defendant would not be tried in the Special Criminal Court. He relied on Section 39 of the Extradition Act 1965 which referred to the 'Rule of Speciality'. This rule provided that a

person extradited under the Act could only be tried for an offence of the same description as the offence for which he was extradited. He contended that the Attorney General, by later converting the case into one triable by the Special Criminal Court, converted it into a scheduled or non- scheduled offence under the Offences against the State Acts 1939/72 and therefore into a different offence than that mentioned in the affidavit of the Attorney General. HeId(per Henchy J) (1) that the trial before the Special Criminal Court did not change in any way the offence as described in the affidavit of the Attorney General. The Special Criminal Court was a Court established under the Constitution by Statute. The position might be different if the Court was not one so lawfully constituted under the Constitution. (2) The defendant claimed that the Court of Criminal Appeal was incorrect in dismissing his appeal. He admitted that his solicitor had instructed his counsel not to proceed with the appeal but these instructions were ill-founded and did not come from him. Held that in the circumstances it could not have held otherwise at that time. If there had been an error the defendant should have acted immediately and not waited for three years as he had done. (3) The defendant claimed that the indictment under which he was tried in the Special Criminal Court was defective in that it bore the stamp of the Dublin Circuit Court and that it referred to trial by jury. Held that these were superficial defects and that the defendant was not misled in any way. Accordingly application for certificate to appeal to Supreme Court refused. D.P.P. v. Kenneth Littlejohn — Court of Criminal Appeal (Henchy, Gannon, MacMahon J.J.) — Unreported — 19 July 1978.

MORTGAGE Mortgage Suit — Mortgage created by deposit of land certificate by c ompany to s ecure bank accommodation — loan negotiated by persons not authorised by company — whether borrowing ratified by company — Purpose of loan to finance acquisition of company's own shares — bank having constructive but not actual notice of such purpose — whether transaction void under Section' 60, (14) Companies Act, 1963. This was an Appeal brought by the plaintiff bank against the decision of the High Court (McWilliam, J.) refusing the Plaintiff a declaration that a sum of £169,689.29 for principal and interest was, by virtue of an equitable mortgage created by the deposit of the land certificate, well charged on certain lands (and the hotel premises erected thereon) in County Wicklow of which the defendant company has registered as full owner. In the High Court the defendant did not dispute the amount of the plaintiffs claim but contended that the loan, having been raised by persons who had no authority to act on its behalf and who were neither directors or employees of the defendant at the relevant time, was not binding on the defendant or, if it was, that the whole transaction was voidable as being in contravention of the provisions of Section 60 of the Companies Act, 1963 which Section prohibited a company f r om financing, directly or indirectly, its own stores. The High Court held that the borrowing transaction had been ratified by the defendant but was in contravention of Section 60, and refused the declaration sought by the plaintiff. Against this decision the plaintiff appealed. Held (per Kenny J.) (1) (as had the High Court) that the loan transaction had been adopted and ratified by the defendant. Kenny J. referred to the principles governing ratification of an act by a principal when the agent had not authority to act for the principal as stated by Wright, J. in Firth v. Staines [ 1897] 2 Q.B. 70, and cited the following passage:— "I think the case must be decided upon the ordinary principles of the doctrine of ratification. To constitute a valid ratification three conditions must be satisfied: first, the agent whose act is sought to be