The Gazette 1984

GAZETTE

JULY/AUGUST

1984

Recent Irish Cases

preference in a bankruptcy matter. HELD: Approval was expressed for the judgment of Sir Robert Megarry, V.C., in Barclay-Johnson -v- Yuill[ 1980] 1 W.L.R. 1259. Here it was pointed out that there were two lines of authority with regard to such injunctions. The older, which he called the Lister -v- Stubbs line established the general proposition that a Plaintiff cannot prevent a Defendant from disposing of his assets pendente lite merely because he fears that by the time he obtains judgment in his favour the Defendant will have no assets against which the judgment can be enforced. The newer, called the Mareva line, established that such an injunction may be granted where it is just and reasonable to do so. The Vice-Chancellor appeared to discard any distinction between foreigners and citizens and went on to say that "the Mareva prohibition against disposition of the assets within the country is a normal ancillary of the prohibition against removing the assets from the country, . . . ." The progress of the Mareva lines of cases seems to lead to the conclusion that the injunction may be granted where it appears to the Court that dispositions are likely to be made for the purpose of preventing a Plaintiff from recovering the amount of his award, as distinct from conducting the normal business or personal affairs of the Defendant. In the present case, from the reluctance of the Defendants to disclose their assets and their dispositions and proposed dispositions of them combined with the fact that their businesses were not personal but were conducted by a group of companies, it appeared to the Court that the Defendants were probably mainly interested to deprive the Plaintiff of the opportunity of recovering. Accor- dingly, the injunction was continued. Powerscourt Estates -v- Patrick Gallagher and Paul Gallagher - High Court (per McWilliamJ.), 18May, 1982 [1984] ILRM 123. Ken Murphy ROAD TRAFFIC ACTS Section 13 Road Traffic (Amendment) Act, 1973, does not require proof of the time of driving or attempting to drive a mechani- cally propelled vehicle. On 23 March, 1980, Garda John Costello went to the scene of a traffic accident in Dublin which involved three motor vehicles, one of which was driven by the Defendant. The Defendant admitted driving the vehicle. The Garda got a strong smell of intoxicating liquor from the Defendant's breath and noticed that his speech was slurred and very indistinct. When he got out of his car he stumbled and almost fell and was unsteady on his feet. His eyes were bloodshot and bleary. The Guard formed the opinion that the Defendant was unfit

to drive a mechanically propelled vehicle due to the consumption of intoxicating liquor and arrested him under Section 49 (6) of the Road Traffic Act, 1961, as inserted by Section 10 of the Road Traffic (Amendment) Act, 1978, and then conveyed the Defendant to Finglas Garda Station. He was handed over to the Sergeant who asked the Defendant if he was aware that he had been arrested for driving his car while drunk and being involved in the accident and the Defendant said that he was so aware. The Sergeant told the Defendant that he was sending for a registered medical practi- tioner so that a specimen of blood or urine could be taken from the Defendant. He asked the Defendant if he would like to have his own Doctor present and he said that he would not. The Doctor arrived and the Defendant was told that under the Road Traffic Acts when a person is arrested for drunken driving he is obliged to supply a specimen of either blood or urine to the designated registered medical practitioner. The Sergeant requested the Defendant to supply either a specimen of blood or urine to the Doctor and explained the conse- quences of a refusal to do so. The Defendant said he understood. The Sergeant again asked which specimen he would wish to give and the Defendant then said that he was refusing to give any type of specimen. The Sergeant asked him if he understood the possible conse- quences of his refusal and the Defendant said that he did. The Defendant was allowed to leave the Station a short time later and took a taxi home. No evidence was given on behalf of the Defendant but it was submitted by his Solicitor that the Defendant should be acquitted as there was no case to meet on the grounds that there was no evidence of the time when it was alleged that the Defendant was driving or attempting to drive a mechanically propelled vehicle while under the influence of drink or drugs in contravention of Section 49 (6) of the Road Traffic Act, 1961, as amended by Section 10 of the Road Traffic (Amendment) Act, 1978. Before giving a ruling on the submissions the District Justice stated a case asking the following questions namely:— 1. In a prosecution under Section 13(3) of the Road Traffic (Amendment) Act, 1978, is it necessary to prove that the requirement to provide a sample was made of the Defendant within three hours of his driving his vehicle? 2. Is it necessary that the requisition be made within three hours of driving, attempting to drive or being in charge? Would he, the District Justice, be correct in dismissing the charge in the absence of evidence of time? 3. In a prosecution under Section 13(3) is proof of the time of driving a necessary proof for any reason?

Edited by Gary Byrne, Solicitor

INJUNCTION Where it is found that a Plaintiff with a prima facie case has reasonable grounds to fear that a Defendant will charge or dispose of his assets in order to prevent recovery on foot of any award which might subsequently be obtained a Court may grant an interlocutory injunction. The Defendants were directors of the companies comprising the Gallagher Group and, as part of a transaction concerning certain property at St. Stephen's Green, jointly and severally guaranteed the repayment to the Plaintiff by Lambert Jones Estates Limited on or before 27 April, 1982, of the sum of £500,000 lent by the Plaintiff to that company, together with interest. When no part of this sum was repaid on the date in question, the Plaintiffs issued a Plenary Summons on 12 May, 1982, to recover the loan, together with interest, amounting to a total sum of £588,046.97. This injunction was in the instant case sought to be continued pending the hearing of the action. Affidavits filed on behalf of the Plaintiff stated the deponent's belief that the Defendants owned substantial amounts of property and were involved in transactions whereby they were charging, or proposing to charge, their personal assets so that certain of the Defendants' other creditors would be preferred to the Plaintiff. It was further stated in the Affidavits that it was apprehended that the Defendants would charge or dispose of some or all of their property and that money or chattel property might be removed out of the jurisdiction and so defeat the prospect of the Plaintiff executing on a Judgment. In opposing this interlocutory applica- tion it was argued on behalf of the Defendants that a "Mareva" type injunction of this sort can only be granted where a Defendant outside the jurisdic- tion has property inside the jurisdiction, or where it is shown that a Defendant, because of his foreign nationality or domicile or otherwise, is likely to take his property out of the jurisdiction, and that it is not to be confused with fraudulent

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