The Gazette 1984

GAZETTE

JULY/AUGUST 1984

an adjournment and evidence was given by him and by Cassidy's Solicitor. Gannon J. dealt with the case and in his Judgment he said: "The position is that the Plaintiff has a good award as regards the Circuit Court proceedings. The Circuit Judge has determined the issue and evaluated the damage. Satisfaction of this Judgment was offered. Therefore my decision is that the Plaintiff has a Judgment in the Circuit Court which has been satisfied. I therefore dismiss his Appeal and as no costs are looked for by the Plaintiff, I make no Order in this respect." The Order of Gannon J. states: ". . . that the appeal do stand dismissed and the Court doth affirm the Circuit Court Order and makes no Order as to the costs of the said Appeal." Cassidy's High Court Action for damages for personal injuries against O'Rourke then came on for hearing. Before the substantive issue was heard, the matter came before Carroll J. in the High Court, on a preliminary issue as to whether, in the light of what transpired in the Circuit Court proceedings, Cassidy's claim in the High Court proceedings was Res Judicata. Cassidy's Solicitor in evidence before Carroll J. stated that at the hearing of the Appeal in the High Court on Circuit, he only produced correspondence and was asked one question. There was no attendance by the insurance company who had authorised payment of the Circuit Court claim. The Court found as follows: 1. The letters of 20 July, 1981, from the insurance company to O'Rourke's Solicitor and 26 July, 1981, from O'Rourke's Solicitor in reply were not before the High Court on Circuit as they would not have been in the possession of Cassidy's Solicitor. 2. The Order of the High Court on Circuit in dismissing the Appeal was incorrectly drawn up. Gannon J. dismissed the Appeal but he did not affirm the Circuit Court Judgment because to do so, would have decreed Cassidy by High Court Order for a sum of £422.72p in respect of a Judgment already satisfied. Therefore, only the Circuit Court Judgment was left standing upon which O'Rourke could make a claim of Res Judicata there being no High Court Decree against Cassidy. 3. In view of the fact that the cheque for £422.72p which was sent without admission of liability, was accepted by O'Rourke or on his behalf without further comment he cannot now set up the payment as a bar to High Court proceedings. In this Carroll J. applied the principle of Estoppel similar to that applied by the Supreme Court in Doran -v- Thompson Limited [1978] I.R. at p.223. XIII

HELD: The Order of the High Court on Circuit was only a dismissal of the Circuit Court Appeal without further Order thus leaving the Circuit Court Order as the only Order on which there was a finding on the issues. In the circumstances O'Rourke having accepted the payment on the basis that there was no admission of liability is estopped from relying on the Circuit Court Order and is not entitled to enter a plea of Res Judicata to the High Court proceedings. Henry Cassidy -v- Charles Noel O'Rourke - High Court (per CarrollJ.), 18 May, 1983, - unreported. George Bruen COMMERCIAL Banking — Documentary Credits —Time at which Documentary Credit ought to be opened or established —contract — implied term — consensus ad idem — Section 4 of Sale of Goods Act 1893. The Supreme Court heard an appeal brought by the Defendants (I.G.B.) against the judgment given against them in the High Court in an action brought by the Plaintiffs (Tradax) for breach of contract. The amount of damages awarded in the High Court was £215,000 which amount was not disputed by I.G.B. on appeal in the event of their liability being proved. Tradax alleged that I.G.B. had entered into a binding oral contract on 23 March 1978 to sell to it two lots of grain: (1) 20,000 metric tonnes at £99.50 per tonne delivered f.o.b. for shipment from New Ross subject to a minimum loading rate of 800 tonnes per weather working day and (2) 5,000 metric tonnes to be delivered ex-store, either from Mullingar or Edenderry, at £96.50 per tonne. Each lot was to be paid for by letter of credit maturing for payment on 1 May 1978. Tradax alleged that the contract, whilst in the course of performance, was wrongfully cancelled and repudiated by I.G.B. by way of a letter addressed from the latter to Tradax dated 21 April 1978. I.G.B. in the High Court and on this appeal disputed Tradax's claim on the following three grounds (1) that no contract was concluded on 23 March 1978. there being no consensus ml idem between the two contracting parties; (2) that even if an oral contract or contracts were entered into on such date that the same were unenforceable for non- compliance with Section 4 of the Sale of Goods Act 1893; (3) that the failure of Tradax to open a letter of credit for the price agreed prior to 21 April 1978 entitled I.G.B. to repudiate the contract and to refuse further performance thereof as from that date. HELD: (1) (McCarthy J. dissenting) that there was sufficient evidence on which Gannon J. in the High Court could have concluded that there existed agreement between the contracting

Recent Irish Cases

Edited by Gary Byrne, Solicitor

ROAD TRAFFIC / RES JUDICATA Dismissal of Appeal from Circuit Court — no affirmation of Circuit Court Order — matter not Res Judicata in relation to High Court proceedings — payment of Circuit Court Decree without admission of liability no bar to High Court Action. On 24 April, 1979, Mr. Cassidy, a motor cyclist, was very seriously injured in a road traffic accident when he collided with a motor car, the property of Mr. O'Rourke. On 28 September, 1979, O'Rourke's Solicitor issued a Civil Bill claiming damages against Cassidy. On 9 July, 1980, Cassidy's Solicitor issued a High Court Plenary Summons claiming damages for personal injuries against O'Rourke. At the hearing of the Circuit Court proceedings on 5 November, 1980, the Court found Cassidy 100% negligent and gave a Decree to the Plaintiff for £422.72p. Mindful of the effect of the J u d gm e n t, C a s s i d y 's So l i c i t or immediately appealed to the High Court. This Appeal was not supported by Cassidy's insurers who through their representative were negotiating directly with O'Rourke's Solicitors. Because of a threat by O'Rourke's Solicitors of High Court proceedings against them the insurance company issued a supplement cheque for £422.72p. The covering letter stated— "We have received your letter of 30 June, and we now attach cheque for £422.72p in favour of Mr. O'Rourke being the amount of the Decree". At a later stage the letter says: "We await hearing from you and in the meantime we draw your attention to the fact that our payment of £422.72p is made without admission of liability." O'Rourke's Solicitor replied to this letter on 26 July, 1981, saying: "We note the contents of your letter of 20 July last." Subsequently the matter of the costs of O'Rourke's Solicitor was disposed of. On 22 October, 1981, Cassidy's Appeal to the High Court on Circuit came before Gannon J. O'Rourke's Solicitor opposed