The Gazette 1979

GAZETTE

SEPTEMBER 1979

Company was required to demand and, if necessary, enforce payment of specified debts; to lodge the proceeds of any such collections to its bank account; and to give the major creditors full access to its books and records. But nowhere was it suggested that the Company pay over the debts so collected to the major creditors. The absence of such an obligation supported, rather than weakened, the inference that it was intended that the Company was to be entitled to retain book debts as they were paid and to create new ones from time to time. In other words the Company was entitled to deal with its book debts in the ordinary course of its business until such time as the major creditors became entitled to intervene in the Company's affairs. The debenture, the Court concluded, must be so construed. The Court having dealt, as above, with the inferences to be drawn from the provisions of the debenture, continued its construction of the charge on book debts contained in clause 3(b) by applying the three tests of a floating charge as suggested by Romer L J . in the Court of Appeal in the Yorkshire Woolcombers Association case [1903] 2 Ch., at p. 295), namely — 1. Is it a charge on a class of assets of the Company present and future? 2. Is that class one which, in the ordinary business of the Company, is changing from time to tjme? 3. Is it contemplated by the charge that, until some further step is taken on behalf of those interested in the charge, the Company may carry on its business in the ordinary way as far as that particular class of assets is concerned? In applying these tests to the charge at clause 3(b) of the debenture under consideration the Court was satisfied 1. That the charge was a charge over moneys due or to become due to the Company from both existing and future debtors. 2. That the charge was a charge on a class of assets which in the ordinary course of the Company's business would be changing from time to time. 3. That the debenture contemplated that the Company should carry on its

business in the ordinary way, and receive payment from its debtors from time to time, without regard to the charge over the book debts until some future event happened which would justify intervention by the debenture holders in the Company's affairs. A submission made on behalf of the debenture holders that the charge on book debts was divisible as between existing book debts and future book debts and that sub-clause 3(b) created a fixed charge on existing book debts whilst sub-clause 3(e) created a floating charge over future book debts, i.e. book debts coming into existence at a future time, was rejected by the Court. Held (per Costello J.) that the debenture was invalid by virtue of the provisions of Section 288 of the Companies Act, 1963 to the extent to which it purported to charge the book debts of the Company in favour of the creditors to whom it was issued. In the matter of Lakeglen Construction Limited (In Liquidation) and In the matter of the Companies Act, 1963 — High Court (per Costello J.) — 20 December, 1978 — Unreported. CRIMINAL LAW Jurisdiction of District Court to try minor offences. Extent of Section 2(2) of Criminal Justice Act, 1951. Purpose of Section is to prevent accused being deprived of his right to trial by jury upon a non-minor offence. Purpose not necessarily defeated by inadequate summary of facts upon which a District Justice formed the opinion that an offence constituted a minor offence. On 18 July, 1978 the Prosecutors, both members of the Ga d ra Siochana, appeared before the District Court charged with assault occasioning bodily harm. Each elected to be tried in the District Court and in reply to the District Justice the solicitor for the Director of Public Prosecutions stated that the assault alleged was one in which the victim had received a swollen face but was not a bad assault. The case was heard on 15 and 20 December, 1978, and during the course of the hearing it was alleged that the

Prosecutors had pursued the injured party in a motor car and forced him into their motor car and then assaulted him to compel him to reveal the whereabouts of his brother, that the injured party's brother was compelled to give one of the Prosecutors £5 and that in the course of the motor journey threats of violence were made against the injured party. On 20 December, 1978, the Prosecutors were each convicted of the offence charged and each sentenced to six months imprisonment. On 21 December, 1978, the Prosecutors applied for and obtained conditional Orders of Certiorari against the District Justice on the ground "that the said District Justice did not conduct any enquiry as to whether the facts alleged constituted a minor offence and did not form the opinion that the facts alleged did constitute a minor offence". The Prosecutor's original affidavit was controverted by the District Justice who showed cause. The Prosecutors filed further affidavits stating that no proper or adequate general statement of the facts of the case was heard by the District Justice before he embarked on the hearing and that the facts alleged could not possibly be considered a minor offence. They were allowed to argue this further ground. The argument centred on the provisions of Section 2(2Xa) of the Criminal Justice Act, 1951, which permitted an indictable offence (such as each of the Prosecutors was charged with) to be tried summarily in the District Court provided two conditions were fulfilled, namely, (1) the Court was of opinion that the facts proved or alleged constituted a minor offence fit to be so tried and (2) the accused on being informed of his right to be tried with a jury does not object to being tried summarily. The High Court referred to the decision of Butler J. in The State (Nevin) v. Tormey, [1976] I.R. 1 which held that it was not sufficient for the District Justice to hear the evidence and then, if satisfied that it was a minor offence, to convict; but the District Justice must, before embarking on the trial of the offence and as a necessary preliminary to jurisdiction, have formed the opinion