The Gazette 1983

GAZETTE

JANUARY/FEBRUARY 1983

Roy -v- Prior [1971 ] A.C. 470 Quartz Hill Gold Mining Company -v- Eyre (11 Q.B.D. 674) Tims -v- John Lewis and Co. [1951] 2 K.B. Tempest -v- Snowden [1952] 1 K.B. Abbott -v- Refuge Assurance Co. Ltd. [1962] 1 Q.B. 432. Pike -v- Waldrum [1952] 1 Lloyds Report 431, 451 Rooney -v- Byrne [1933] I.R. 609 Flynn -v- Buckley (24 April 1980) Barry -v- Buckley (9 July 1981 — reported) The Court Held that: (1) At common law an action for maliciously abusing the courts processes lay and such an action is not limited to claims arising from the institution of a criminal prosecution and to bankruptcy and winding-up proceedings. The authorities establish that a claim for damages at common law will lie for the institution or maintenance of a civil action if it can be shown that the action was instituted or maintained (a) without reasonable or probable cause (b) maliciously and (c) that the claimant had suffered special damages or that the impugned action was one which the law presumes will have caused the claimant damage. If it is shown that the proceedings had been instituted without reasonable or probable cause it is necessary to show in add i t i on that they were i ns t i tut ed or maintained maliciously. An intent to use the legal process in question for some other than its legally appointed and appropriate purpose can amount to "malice" in this connection. Obviously where a Plaintiff has obtained legal advice before instituting or maintaining legal proceedings the nature of that advice could be a highly material factor in considering whether he was motivated by an indirect or imprope/ motive, as it may assist in showing whether the Plaintiff was using the proceedings for some legally inappropriate purpose. 3. As to proof of damage, when a claimant shows he has suffered some special damages as a result of a civil action which has been 2.

brought or maintained without reasonable or probable grounds and maliciously, then a cause of action has been established. In the absence of Special Damages a claimant will have to show that the impugned action is one which the law regards as causing damage, e.g. if the claimant is injured "in his fair name". Applying these principles to the facts of the present case the Court Held that | (i) there was no legally binding agreement to grant a lease when the proceedings were launched; (ii) the proceedings were not instituted maliciously but they were maintained by Dorene to assist them in their negotiations; Accord- ingly the proceedings were not u s ed f or t h e ir appropriate purpose and were maintained malicious- iy; (iii) Suedes suffered damage; They would have sold their premises to a third party had Dorene discontinued the proceed i ngs and vacated the lis pendens in December '79; (iv) Suedes did not contribute to their loss by failing to apply to have the lis pendens vacated. The Court would take evidence at a future date on the quantum of damages. Dorene Limited and Dorene Separates Limited -v- Suedes (Ireland) Limited. (High Court) (per Costello, J.)[ 1982J ILRM 126. Franklin J. O'Sullivan COURTS ACT — Irish Language Failure to affirm an order that the Government and the Minister for Justice failed to fulfill the obligation imposed on them by section 72 of the Courts of Justice Act 1924. The complainant, Tomas Ó Monacháin, was twice convicted in the District Court in Bunbeg, Co. Donegal, on 2 February, 1976 and 11 May, 1976 respectively. On both occasions it was stated that he was responsible for development contrary to section 24 of the Local Government (Planning and Develop- ment) Act 1963 without the necessary

permission. On the first occasion before District Justice Keenan Johnson, who was on temporary duty that day, the complainant sought to have the case conducted through the medium of Irish, but the Solicitor for the County Council and also one of the Witnesses wished to give evidence in English, therefore the District Justice heard the case with the aid of an Interpreter. On the second occasion, District Justice Larkin also availed of the services of an Interpre- ter to translate to English the evidence given in Irish. The proceedings were commenced in the High Court by way of Plenary Summons in June 1976. The complainant claimed the following: (1) An Order affirming that the Government and the Minister for Justice failed to fulfill the obligations imposed on them by Section 71 of the Courts of Justice Act 1924. (2) An Order of Mandamus to compel the Government and the Minister for Justice to fulfill these obligations. (3) An Order of Certiorari to nullify the two convictions. (4) Damages for the period he spent in prison because he would not pay the fines. The complainant failed on all grounds in the High Court and on appeal to the Supreme Court the appeal was dismissed on the grounds that as Section 71 of the 1924 Act was the basis of the claim and the primary purpose of Section 71 being to provide Native Irish speakers with an opportunity to give evidence in their native language then when a Justice is appointed to an area in which the Irish language is in general use, he must be qualified to operate without an Interpreter when evidence is given in Irish. But the Court stated that it is not an unconditional right under Section 71 that a hearing of that sort would be available in every case. The onus was on the complainant to show that it was because of a lack of sufficient understanding of Local Irish that District Justice Larkin availed of an Interpreter. The com- plainant failed to satisfy that onus of proof and therefore he failed in every claim which he made in pursuance of the offences before District Justice Larkin. Walsh J. disagreed with Henchy J. on that point. He said he was satisfied that the Government and the Minister for Justice had failed to fulfill their statutory duties. District Justice Larkin was appointed to the district in question on 29 September, 1961 and there had been sufficient

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