The Gazette 1983

GAZETTE

JANUARY/FEBRUARY 1983

Respondent had proposed to him. The Respondent was subsequently introduced to the Petitioner's mother and sisters and the parties became formally engaged. The Petitioner maintained that he was ill at the time .and had no intention of marrying. Meanwhile the Petitioner's mother became ill and she died in January 1978. The Petitioner moved to live with one of his sisters who found him to be very depr e s s ed. The Respondent was unaware of the extent of his depression as the petitioner displayed a more cheerful disposition to her, she put any hesitations he had down to pre- marital nerves. The Petitioner did express» hesitations about the fortcoming marriage but never stated clearly that he did not wish to proceed with the marriage. He maintained that he attempted to break off the relationship from the Sunday before the wedding but did not get the opportunity. Prior to the wedding the petitioner made a will referring to the Respondent as his intended wife. Very shortly after^the marriage there were a number of rows and minor assaults on the wife. After eight months the Respondent left the family home as she felt the Petitioner did not want her. The court heard evidence from three Psychiatrists who treated the Petitioner but none of them had seen the Petitioner either immediately before or after the marriage. The psychiatric evidence was to the affect that the Petitioner understood the nature of marriage but might find it difficult to understand and face up to relationships within marriage. The court accepted that both before and after his marriage the petitioner suffered from some sort of personality de f ect or illness similar to schizophrenia, and that this made it difficult for him to have a successful marriage. In answering questions 1 and 2 the court considered the evidence was coercive that the Petitioner was at all material times able to understand the nature, purpose and consequences of the marriage contract. It was equally clear from the facts of the case that there was no pressure, fear, duress or undue influence exercised by the Respondent on the Petitioner. Accordingly the reply to question 1 is No, and the reply to question 2 is Yes. On the third question the Court stated that there is no precedent in Irish Law for this argument. Counsel for the Petitioner submitted that even if he had freely entered into the

marriage and knew the implications thereof, he was still not capable of contracting a valid marriage as he was so ill, he was unable to sustain a normal relationship with his wife. It was further submitted that marriage implied an intention on behalf of both parties to live in some form of society and if one party (through illness as suggested in this case) has not the capacity to sustain a relationship with the other, a real marriage becomes impossible. The court drew an analogy between the argument submitted on behalf of the Petitioner and impotence as a ground for avoiding a marriage. The court was of the view that what was contended here was a more serious impediment to marriage than that of impotence. The court further considered that the illness of one of the parties, they both in other respects being capable of contracting a valid marriage, could not make the marriage void providing both knew of the illness. To hold otherwise would be an unwarranted interference with the right to marry. By contrast the court accepted that if it could be shown that at the date of the marriage the Petitioner through illness lacked the capacity to form a caring or considerate relationship with his wife then the court would enterain this as a ground on which a decree of nullity might be granted. The court drew a further analogy with the law of impotence in holding that if such a ground were to be successful it would make a marriage voidable and thus would only void the marriage if the other party had previously repudiated the marriage. In conclusion the court stated that it found the Petitioner's own evidence in many respects unsatisfactory and was not satisfied that he had proved that on the date of his wedding he was so incapacitated as to make the marriage void or voidable. Even if it were voidable the marriage would be voidable only at the instance of the wife and there was no evidence in the case that the wife had repudiated the marriage. The petition was accord- ingly dismissed. R.SJ. v. J.S.J. (High Court) (per Barrington J.) [1982] ILRM 263. Mary Griffin TORT Malicious abuse of Court Process — claim for Damages where proceedings for specific perform- ance and registration of Lis

Pendens instituted and main- tained maliciously and without reasonable or probable cause, resulting in damage. Negotiations took place between the parties Estate Agents and then their Solicitors in 1979 for the leasing of the Defendants ("Suedes") factory premises in Clanbrassil Street in the City of Dublin. In the course of corre- spondence Suedes offered a lease to the first named Plaintiff ("Dorene") "subject to contract" and other con- ditions. On 9 October 1979 Suedes informed Dorene that it was no longer interested in granting a lease. Dorene instituted proceedings for specific performance and damages for mis- representation and registered a lis pendens against the property. Suedes immediately replied by telling Dorene that if it went on with its action Suedes would claim damages as the proceedings were preventing a sale of its property to a third party. In December 1979 Dorene were advised by Counsel that their action would not succeed but they did not then discontinue their action but continued the proceedings. But in the meantime proceedings had been filed and Suedes had counterclaimed damages for the wrongful institution and maintenance of the proceedings; its claim, in effect, being one for damages for the malicious abuse of the Court's process. Dorene's Counsel firstly argued that the Defendant had no cause of action. He accepted that a claim for maliciously instituting criminal proceedings lies and also for maliciously instituting proceedings in bankruptcy and to wind up a Company, but that no action lies for instituting a civil action (even one maliciously brought) because the basis of the tort is damage done to the public by the wrongful institution of proceedings and no such injury is suffered by a Defendant in an ordinary inter-partes action. Alternatively it was argued that if an Action lay for maliciously instituting a claim for specific performance, on the facts of this case Suedes' claim was unsustainable. The Court examined the following authorities and case law:— Holdsworth: History of English Law (Vol. 81. p. 385 et seq). Salmond on Torts: 16 Ed. p. 427 Wylie: Irish Conveyancing Law The Walter D. Wallet (1893) P. 202 Saville -v- Roberts (1698) 1 Ld.Ray. 374

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