The Gazette 1983

GAZETTE

JULY/AUGUST

1983

of the Irish Courts as compared to the Courts in England (where the first defendant was registered) * Pennsylvania (where the second defendant was registered) and France (where Total was registered) respectively favoured having the case tried in Ireland more especially since 79 potential witnesses were permanently resident in Ireland. 3. If the Plaintiffs had not joined Total in the proceedings the first-named Defendant would have applied to issue third party proceedings against them, because, in the event of the Plaintiff succeeding against the first- named Defendants, the first-named defendants would be seeking contribution or indemnity from Total. 4. These factors favoured having the Action tried in Ireland the deciding factor being whether the Defendants were liable to the Plaintiffs under the law of tort in Ireland. The application was refused and this decision governed the position in all thirty seven motions. Laurence O'Daly and Marie Claude Reverte v. Gulf Oil Terminals (Ireland) Limited, Gulf Oil Corporation and Total Compagnie Francaise de Navigation — High Court (per Barrington J.) (unreported) 7 July 1982. Kenneth Morris PRACTICE — certiorari — natural justice —Absolute order of Certiorari granted in respect of decision of Governor of detention Institution revoking a grant of temporary release as the principles of natural justice had not been applied. The prosecutor had been serving a sentence of twelve months detention in St. Patrick's Institution. On 19 May 1981 subject to certain conditions, he was granted full temporary release to the expiration of his sentence on 22 October 1981. On 15 June 1981, while on temporary release, the prosecutor was arrested under Section 30 of the offences against the State Act 1939. He was charged, with others, with attempted murder and possession of a fire-arm with intent to endanger life. The prosecutor was then remanded in custody to St. Patrick's Institution and given clothing appropriate to a person who had been sentenced. The prosecutor was told he was beingkept in custody because of the seriousness of

the offences alleged against him. On 23 September 1981, the prosecutor obtained a conditional order of certiQrari in respect ofthe order ofthe Governor of St. Patrick's Institution in revoking the grant of temporary release. The order was granted upon the ground that the decision of the Governor to terminate the temporary release was reached otherwise than in accordance with natural justice. The argument put forward by the prosecutor was that the Governor did not hold a hearing before revoking his temporary release. The Governor denied this claim and argued that the principles of natural justice had not been broken. The only evidence available to the Governor was that the prosecutor had been charged with serious offences. The Governor was not in possession of any evidence which related to a breach of any condition to which the prosecutor's temporary release was made subject The Court stated that it followed that there could not have been a hearing and, accordingly, not a hearing which followed fair procedures. The Governor also argued that there had been excessive delay on the part of the prosecutor in obtaining relief. Reference was made to State (Cussen) v. Brennan [1981] IR 181. The Court held in making absolute the conditional order that; 1. A hearing is required in any case where the rights of an individual are seriously threatened and such individual would not otherwise have any means either of seeking to vindicate himself or to alleviate the hardship which he might suffer. 2. In view of the potential loss of liberty ofthe prosecutor some hearing ofthe allegation against the prosecutor that he was in breach of a condition to which his release was made subject was required. 3. In die circumstances of this case the essentials of a valid hearing required: (a) Evidence from which it would have been fair to hold in favour ofthe allegation; (b) Notification to the Prosecutor of the nature of such evidence sufficient to enable him to prepare a defence; (c) Time for the prosecutor to prepare a defence; (d) An opportunity to make that defence. The hearing, however did not have to be of a very formal nature provided that the atove minimum requirements were met. 4. On the question of delay, there was

1. Counsel for Total submitted that the Irish Courts had no jurisdiction to try any of the thirty seven cases because all the victims were Nationals employed under French Contracts of Service, the ship was French registered and that in most, if not all, cases the victims lost their lives as a result of happenings on board a French ship on French national territory governed by French national law. In rejecting this submission the Court held that the disaster took place in Irish waters and within the Court's jurisdiction. In reaching this conclusion the Court adopted the reasoning of Lord . Atkin in Chung Chi Cheung v. R v [ 1938] 4 All ER 786 in prefFering the jurisdictional theory in International Law "that a public ship in foreign water is not and is not treated as territory of her own Nation." Whilst the present case dealt with a private ship and the law oftort, the argument in favour of subjecting a private ship to the Civil Law of the littoral state appeared equally strong, even if the occurrence was confined to the Betelgeuse entirely. 2. Immediately prior to the accident the Betelgeuse was berthed at a jetty owned by the first-named Defendant it seems reasonable to assume that the first and third-named Defend- ants while denying liability would blame each other and it would be strange if the Plaintiff were prevented from suing both Defend- ants in the jurisdiction where the tort was alleged to have been committed. 3. It was urged on behalf of Total relying upon the Statement of Haugh J. in Freedman v. Opdeheyde [1945] I.J.R. page 22 that save in exceptional circumstances the Plaintiff must seek out the Defendant in the Defendant's jurisdiction and the Court held that one of those exceptional circum- stances was when the action is founded on a tort alleged to have been committed by a foreign resident within the Irish jurisdiction. On the second question the Court Held: 1. It was argued that issues of French law best interpreted by a French Court were raised. In particular the fact that the Plaintiffs in these actions who were suing as Representatives or as dependants of deceased members of the crew, had received, and were receiving substantial compensation under the French Social Security system. 2. The Plaintiffs contended that the comparative costs and convenience

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