The Gazette 1981

D E CEMBER

19

GAZETTE

questioning the constitutionality of the statute may be overlooked if in the circumstances of the case there is a transcendant need to assert against the statute the con- stitutional provision that has been invoked." Per O'Higgins C J.: "Where the person who questions the validity of a law can point to no right of his which has, by reason of the alleged invalidity, been broken, endangered or threatened, then, if nothing more can be advanced, the Courts should not entertain a question so raised. To do sowouldbe to make of the Courts the happy hunting grounds of the busy-body and the crank. Worse still, it would result in a jurisdiction, which ought to be prized as the citizen's shield and protection, becoming debased and devalued. This is not to say, however, that if those whose rights are affected cannot act or speak for themselves the Courts should re- fuse to hear one who seeks to speak or act for them, even if his own rights are not affected. Such exceptional cases, hopefully rare, must, of course, be entertained." Cahill v. Sutton — Supreme Court (per Henchy J. with concurring judgment of O'Higgins C.J. and with Griffin, Kenny, Parke JJ.) - 9 July 1980 - unreported. GAMING Gaming on Licensed Premises is unlawful, unless exempted by Section 9 (2) or Section 9 (3) of the Gaming and Lotteries Act, 1956. The Defendant had been convicted in the District Court for having permit- ted gaming on his premises on 10 March, 1979, contrary to Section 9 (1) of the Gaming and Lotteries Act 1956 ("the Act"). An appeal to the High Court by the Defendant by way of case stated was decided before D'Arcy J. who dismissed the Defen- dant's appeal. The Defendant further appealed to the Supreme Court. The facts were that the Defendant permitted to be operated in his bar, a fruit machine slot machine. The playing of that machine was clearly "gaming" as defined by Section 2 of the Act i.e. "playing a game (whether of skill or chance or partly of skill and

tion 11 (2) (b) of the Act of 1957 did not contravene the Constitution and specifically Article 40.3.1 and 3.2. The Plaintiff appealed this con- stitutional issue to the Supreme Court. During the appeal the question of the locus standi of the Plaintiff was raised by the Defendant. The main ar- gument of the Plaintiff was that there was no protection in Section 11 (2) (b) for the person who was during the three year period ignorant of his claim (similar to the protection introduced by Section 1 (1) of the U.K. Limitation Act 1963). Held( per Henchy J. with concurring judgment of O'Higgins C J.): That as in fact the Plaintiff knew of her claim that she had no legal standing to put forward that argument: and that the Plaintiff could not act as the champion for the putative constitutional right of a hypo- thetical third party; and that such an indirect or hypothetical assertion of constitutional rights could not give a Plaintiff the standing necessary. Per Henchy J.: "If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is re- quired, as a condition of invoking the court's jurisdiction to strike down the law for having been un- constitutionally made, with all the dire consequences that may on occasion result from the vacuum created by such a decision, to show that the impact of the impugned law on his personal situation dis- closes an injury or prejudice which he has either actually suffered or is in imminent danger of suffering. This rule, however, being but a rule of practice must, like all such rules, be subject to expansion, exception, or qualification, when the justice of the case so requires. Since the paramount consider- ation in the exercise of the juris- diction of the courts to review legislation in the light of the Con- stitution is to ensure that persons entitled to the benefit of a con- stitutional right will not be pre- judiced through being wrongfully deprived of it, there will be cases where the want of the normal locus standi on the part of the person

Recent Irish Cases

CONSTITUTIONAL LAW Constitution -Locus Standi of Plaintiff and whether a Plaintiff had to have a personal or direct interest In the con- stitutional Issue being raised — Statute of Limitations 1957, Section 11 (2) (b). Interest necessary for Plaintiff. The Plaintiff sued the Defendant doctor for negligence and breach of contract. She alleged that in 1968 she was negligently supplied with wrong pills which caused her injury and disability. Her action for personal in- juries was commenced four years later in 1972, and was based on breach of contract as well as tort. In a preliminary case tried in the High Court it was held that the action was barred by Section 11 (2) (b) of the Statute of Limitations 1957, which provided as follows:— "An action claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision), where the damages claimed by the Plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, shall not be brought after the ex- piration of three years from the date on which the cause of action accrued." The High Court decision was appealed to the Supreme Court, where the issue of the constitutionality of the Section was raised and after leave to amend was allowed, the case was remitted to the High Court. The High Court (per Finlay P.) held that Sec-

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