The Gazette 1979

JULY-AUGUST

1979

GAZETTE

J., with Griffin and Parke JJ.) — 14 February 1979 — unreported.

Civil Liability Act required a Defendant to serve a third party notice where it was possible for him to do so; and he is then precluded from proceeding for contribution except under the third party procedure, and the Court has a discretion to refuse an Order for contribution if a third party notice has. not been served as soon as was reasonably possible. It would not be possible for a Defendant to serve a third party notice if the evidence which might support a claim for contribution was not discovered until the injured party's action had been disposed of. In such a case a Defendant could pursue by a separate action a claim for contribution. Consequently, where the Court refused a Defendant liberty to serve a third party notice, he should be free to bring an independent action for contribution and should not be bound by the condition requiring service of a third party notice where it was impossible for him to comply with it. (Gilmore v. Windle [1967] I.R. 323). In this action it was admitted that the Plaintiffs could have served a third party notice in the course of the injured person's action. Held (per McMahon J.) that the Plaintiffs were now precluded from claiming contribution but were not precluded from claiming damages for negligence or breach of contract. Those damages might be an indemnity for the damages and costs recovered by the injured person or might be that amount but reduced because of contributory negligence. The Plenary Summons however disclosed a cause of action and the motion to strike out was accordingly dismissed. A & P (Ireland) Limited v. Golden Vale Products Limited, trading as Golden Vale Engineering — High Court (per McMahon J.) — 7 December 1978 — unreported. SALE OF LAND — RECEIVER Validity of Attestation of the Seal of a Company by the Receiver — Validity of Execution by Receiver of Deed as Attorney for Company. This case arose out of an application against a refusal by the land registry to register a transfer of a Co. Cork Folio of which the Cork Shoe Company Limited ("the Company") was the registered owner and the Bank of Ireland ("the Bank"), the

interest therein". The husband executed the Statutory Declaration and the sale was closed on the 17 August 1976. In April 1977 the Plaintiff having improved the Artane house agreed to sell it for £10,800. The purchaser's building society solicitors sought proof that Section 3 of the Family Home Portection Act ("the Act of 1976") had not been breached, but the Defendant refused to give a retrospective consent. The Plaintiff sought an order under Section 4 of the Act of 1976 dispensing with the Defendant's consent. The High Court (per Doyle J.) held that the Defendant's consent was not necessary and the defendant thereupon appealed to the Supreme Court. The question for determination by the Court was whether the Plaintiff was an assignee "who in good faith acquired an estate or interest in the property", as provided by Section 3 (6) of the Act of 1976. Having reviewed the history of the doctrine of notice and noted the extension of the doctrine of Constructive Notice effected by the amendment of Section 3 of the Conveyancing Act 1882 by Section 3 (7) of the Act of 1976, the Court considered whether on the facts of the case the Plaintiff ought reasonably through her solicitor have ascertained the fact that the Defendant had a prima facie valid proprietary interest in the family home which the Defendant's husband was selling. The Court, noted that the Statutory Declaration prepared by the Plaintiff's solicitors was inaccurate in fact and unfounded in law, having been prepared without a sight of the Separation Agreement, and that the Plaintiff's solicitors had allowed themselves to be fobbed off with the excuse that the Separation Agreement could not be supplied because of the FLAC Law Centre holidays. Held (per Henchy J.) that the true facts both as to the contents of the Separation Agreement and as to the existence and nature of the Defendant's claim would have come to the Plaintiff's knowledge if such "enquiries and inspections had been made as ought reasonably have been made" and that what the Plaintiff acquired was not acquired in good faith. The assurance by the Defendant's husband to the Plaintiff was therefore void. Sandra Somers v. Sheila Margaret Weir — Supreme Court (per Henchy

CONTR I BUT I ON

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CIVIL

LIABILITY ACT 1961 Failure to serve third party notice does not necessarily preclude independent claim for contribution under Civil Liability Act 1961. The Plaintiffs manufactured pharmaceuticals and chemicals in a factory in Innishannon, Co. Cork and the plant at the factory included fermenting tanks which were supplied to the Plaintiffs by the Defendants. In December 1975 an accident took place in the factory which injured one of the Plaintiffs' employees who brought an action for damages against the Plaintiffs alleging that by reason of the negligence and breach of statutory duty of the Plaintiffs, a cover blew off one of the fermenting tanks and caused his injuries. That action was settled before hearing in July 1977, and Judgment was entered against the Plaintiffs by consent for £17,500 damages and costs. The Defendants were not aware of the accident or of the action by the injured employee until they received a letter in August 1977 from the Plaintiffs' Solicitors claiming indemnity on the ground that the cause of the accident was a design fault in the tank. The Defendants rejected the claim, relying on Section 27(1) (b) of the Civil Liability Act 1961 which they contended required that any claim against them should be made by third party procedure during the currency of the injured person's action. When the Plaintiffs issued a Plenary Summons against the Defendants claiming damages for negligence and breach of contract in the design, supply and installation of the fermenting tank, the Defendants brought a motion claiming an Order under O. 12, r. 16, of the Rules of the Superior Courts 1962 setting aside the service of the Plenary Summons. It was agreed between the parties that the matter be dealt with on the basis that the Plenary Summons included a claim for contribution and that the application be brought under O. 19, r. 28 of the Rules of the Superior Court to strike out the Plenary Summons on the ground that it disclosed no cause of action.

McMahon J. concluded that the provisions of Section 27(1) (b) of the