The Gazette 1981

D E CEMBER

19

GAZETTE

insurer in deciding whether to accept the risk or fix the premium. If this be proved, it is not necessary further to prove that the mind of the actual insurer was so affected. In other words the insured could not rebut the claim to avoid the policy because of a material mis- representation by a plea that the particular insurer concerned was so stupid, ignorant or reckless that he could not exercise the judgment of a prudent insurer and was in fact unaffected by anything the insured had represented or con- cealed." Held Per Kenny J.): 1. That it was material to the insurance efTected by Chariot that goods belonging to Chariot had been destroyed by fire in the Leeson Street premises owned by Consolidated; and that the cir- cumstances of thefire and the fact that Chariot ultimately got payment direct from the insurance company concerned for the damaged goods were matters which could reasonably have affected the judgment of a prudent insurer in taking the risk or in fixing the premium. 2. That in relation to the proposition by Counsel for the second-named Defendant brokers that the onus of establishing that the matter not disclosed was material to the risk lay on the first named Defendants and that to discharge the onus they had to establish that the matter not disclosed did afíect, and not might have affected, their judgment^, that the Court rejected the second part of that proposition and stated that it was necessary only to establish that the fact not disclosed would have reasonably affected the judgment of a prudent insurer. 3. That the appeal of the first-named defendants should be allowed. 4. That the second-named Defendant insurance brokers owed a contractual duty to their client to possess the skill and knowledge which they held themselves out to the public and to their client as having and to exercise this in doing their clients' business; and that they were also liable in tort if they failed to exercise that skill and knowledge; and that in fact the brokers were liable to Chariot in contract and

authorise members of teams and in- dividuals, who had been selected or approved, to compete in inter- national and friendly events. Its re- gulations, incorporated under the constitution and powers of the Federation, provided for a scheme under which competitors from each country at international events had to be entered by the country's own federation and thereupon each com- petitor competed at the international event in question as a representative of his country. In the High Court, Hamilton J. held that the Resolution was not ultra vires the power of the Federation but that it was a restraint of trade which could not be justified. Against the judgment and order of the High Court, the Defendants appealed to the Supreme Court. Held (per O'Higgins CJ.): Allowing the appeal, that the re- solution was intra vires the powers of the Federation and even though in restraint of trade, it was reasonable and justified in the Irish context. Per O'Higgins C.J.: "The need for the rule in the first instance and the object of main- taining it was and is to build up the Irish half-bred horse industry in the interests of equestrian sport generally in the country. It is the view of the Federation, fairly and reasonably held, that in doing so it is serving the interests of the generality of young riders of limited means and thereby serving the general interests of the public." Macken v. O'Reilly and Others, Supreme Court, (per O'Higgins C.J. with Griffin and Park J J. concur- . ring; and Henchy and Kenny J.J. dis- senting) — 31 May, 1979 — unreported.

in tort and Chariot therefore was entitled to such damages Chariot had sustained as a result of the broker's breach of contract and negligence. Chariot Inns Ltd. v. Assicurazioni General! S.P.A. and Coyle Hamilton Hamilton Philips Ltd., Supreme Court (per Kenny J.) with Henchy and Griffin J.J. concurring) — 23 January 1981 — unreported. RESTRAINT OF TRADE A resolution of the Equestrian Feder- ation of Ireland to the effect that hor- ses representing Ireland at inter- national equestrian events could only be Irish bred horses was intra vires the powers of the Federation, which had sole jurisdiction in respect of national equestrian affairs; neither was such a resolution in restraint of trade as it was reasonable and fair in the context of the Irish horse indus- try. The Plaintiff was a professional show jumper and had achieved world statute as a horseman. The proceed- ings against the Defendants who were members of and constituted the Equestrian Federation in January 1978. The effect of" this resolution was to reiterate and repeat the con- sistent policy of the Federation which was not to permit Irish competitors at International events to be mounted on other than Irish horses, but to make a special exception in favour of the Plaintiff, who was then resident in Germany, in respect of those inter- national events at which com- petitors from the different countries could compete as individuals. The Plaintiff, then resident in Ireland, complained that the decision incor- porated in this resolution interfered with his freedom to earn a livelihood and was a restraint of trade which could not be justified as being reasonable. The resolution was also attacked on the ground that it was 'Ultra vires' the powers of the Defendants as the Equestrian Federation of Ireland. Under its constitution, the Federation was declared to be "the body responsible for both the national and international aspects of all equestrian sports in Ireland." It had the power "at its discretion" to

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