The Gazette 1989

I

GAZETTE

MAY 1989

2. That if the proceedings had been other than under the malicious injuries code such a compromise could have been made privately. The Order was necessitated because the County Council had no power to compromise and therefore had to have a judgment. 3. If a local authority were estopped from denying malice then in subsequent proceedings the authority might be prevented from relying on further evidence which might have come to hand since the first proceedings. 4. That if estoppel arose there would have to be mutuality and it would have to apply against all other persons injured by the fire. Lynch J. adopted the reasoning of the Court of Appeal in Northern Ireland in the case of Sharon Shaw -v- James Sloan and Adrian Gribben and Frank Gribben 11982] N.I. 393. He found that the applicants sought to rely on a judgment obtained by another person with whom they were not in privity. It was perhaps easier to see how injustice could be worked in the converse case - if one party should bring a claim under the malicious code and should fail to establish malice because of insufficiency of evidence then all other persons injured by the fire would be barred from maintaining a claim. To deprive such a person of this access to the Courts would be a grave injustica Whilst there was a great deal to be said for treating one of several cases as a test case binding all other cases arising out of the same circumstances that had not been done in this case. The County Council had never lured the Applicants into a false sense of security and no question of any estoppel by their conduct arose. He therefore reversed the order of the Circuit Court refering the case back to that Court so that all issues therein might be tried. McCarthy Construction Limited -v- the County Council of the County of Waterford - 6 July 1987 - (High Court per Lynch J.) unreported. DAIRE M . MURPHY PROCEDURE Validity of summonses - Conviction on hearing in District Court within six mon t hs of O f f e n c es - wh e t h er Defendant could raise on appeal the defence open to him but not availed of at the Summa ry Trial - whether initiation of proceedings in the District Court within six months constituted a valid complaint. The Defendant was convicted on 1 January, 1986 of seven separate offences under the Road Traffic Acts, all alleged to have occurred on 11 September, 1985. A fine with imprisonment in default was imposed in respect of each summons. The Defendant did not appear and was not represented in the District Court but appealed the District Court decision to the Circuit Court. In the Circuit Court the Defendant submitted that the Summonses which had been issued had been issued in accordance with a procedure which, in the case of the State IClarke) -v- Roche 11987] ILRM 309 the Supreme Court had already held to be invalid. The Complainant, relying on the State IRoche) -v- Delap, 11980] I.R. 170

(ii) there was judicial support for the proposition that decisions of the Supreme Court by less than its full complement of members might be reviewed.

asserted that it was not open to the Defendant to make this point on appeal. The Defendant offered no further evidence in the Circuit Court. The matter then came before the Supreme Court by way of a case stated from the learned Circuit Court Judge wherein he raised five questions for determination by the Court as follows:- (a) Is the Respondent (Defendant) entitled to raise the question of the validity of the complaint in the Circuit Court at the hearing of the appeal? (b) If the answer to Question (a) is in the affirmative, is the respondent's right to raise the question of the complaint affected by the fact that he did not raise this issue in the District Court? If the answer to the above Question (a) is in the negative, are the facts that the District Justice has made the Orders herein and the Respondent has lodged a Notice of Appeal to the said District Court Orders and that the Res- pondent has appeared in the Circuit Court, sufficient to give jurisdiction to the Circuit Court to hear these appeals? (d) If the answer to Question (a) above is On the evidence given and accepted by the learned Circuit Court Judge, the Supreme Court was satisfied that, having regard to the decision in the State (Clarke) -v- Roche, no valid complaint had been made prior to the issue and service of the Summonses. Counsel for the Complainant did not seriously dispute that, but rather relied upon the initiation of the proceedings before the District Justice within six months as constituting a valid complaint under Section 10 of the Petty Session (Ireland) Act 1851. Furthermore, Counsel for the Complainant argued that if no complaint had been validly made this went as a fundamental matter to the jurisdiction of the Court to entertain the charges in the first instance. In such circumstances the District Court Orders could only be set aside on the basis of judicial review and not, as in the instant case, by way of appeal to the Circuit Court. The Complainant, in his submissions relied on the following authorities:- The Minister for Agriculture -v- Norgro, [1980] I.R. 155; Attorney General (McDonnell) -v- Higgins, [1964] I.R. 374; D.PR -v- GUI, 11980 II.R. 263; People -v- Keogh, [1985] I.R. 444; State (Roche) -v- Delap, 11980] I.R. 170; State (A.G.) -v- Connolly, [1948] I.R.176; State (McLoughlin) -v- Shannon, 11948] I.R. 439; A.G. -v- Mai/en, 11957] I.R. 344. Counsel for the Defendant advanced the following arguments:- 1. Failure to make a valid complaint within six months of the offences was a matter of defence. In view of the fact that the Circuit Court appeal was a hearing de novo, the Defendant was entitled to raise the point and it was immaterial whether or not it had been raised in the District Court. (c) in the affirmative, then on the evidence in these cases before me, was there sufficient evidence of the making of a valid complaint? Does the hearing of the case in the District Court within six months of the date of the offence amount to valid complaint? (e)

3. (Per Henchy and Griffin J. J. dissenting)

(i) the issue was ruled by the decisions in Corley -v- Gill and Dolan -v- Corn Exchange; and (ii) accordingly, because all the evidence which might have been adduced had not been heard, the Case stated by the Circuit Court was ultra vires. Raymond Doyle -v- Ciaran Hearne, Robert Dunne and Brendan Keegan (Supreme Court, Finlay C. J, Henchy, Griffin and McCarthy J. J. - Walsh J. concurring with Finlay C. J. and McCarthy J.) 31 July 1987. [1988] ILRM 318. PATRICK J. C. McGOVERN RES JUDICATA Whether e compromised consent High Court Order sgsinst a County Council in a claim under the Malicious Injuries Act 1981 is thereafter binding on third parties bringing claims arising out of the same incident in the Circuit Court. The Appellants were the original respondents in the Circuit Court to an Application under the Malicious Damage Act 1981 for compensation for damage to property owned by the applicants and stored in a Hotel premises at the time that the Hotel was destroyed by a fire. An application for compensation by the owners of the Hotel premises had previously been decided by the Circuit Court in their favour. This decision had been appealed by the County Council to the High Court where the parties compromised the case between them and an order was made inter alia to the following effect. "That the sum of £845,000 awarded to the applicant by the said Order for the damage complained of in the Notice of Application dated the 19th day of September 1978 be reduced to £422,500." The application, the subject matter of the present appeal, did not come on for hearing in the Circuit Court until after the above compromise had been reached. The argument in the present case, in the Circuit Court, centered on whether the finding that the fire was malicious in the proceedings by the owners of the Hotel premises bound the County Council in the proceedings by these applicants. The Circuit Court Judge found that the County Council were so bound and the County Council appealed this decision to the High Court. On appeal, Counsel for the Applicants argued that the issue of liability for the fire was res judicata and that the fact that it was a judgement by consent did not affect its capacity to be a judgment in rem. Counsel for the County Council sub- mitted:- 1. That the consent order in the High Court recognised that a substantial issue had arisen on the question of malice and that therefore the parties to that action had compromised that substantial issue on a commercial basis.

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