The Gazette 1991

JANUARY/FEBRUARY 1991

GAZETTE

IR 1 discussed. Dicta in The State (Keegan) v- Stardust Victims Compensation Tribunal [1987] ILRM 202; [1986] IR 642 applied. Sembie: the Minister would have been clearly right if he had taken into account half of what had been awarded in the applicant's damages claim. BULA LTD AND ORS -v- CROWLEY AND ORS SUPREME COURT 29 JUNE 1990 PRACTICE - DISCOVERY - PRIVILEGE - LEGAL PROFESSIONAL - WHETHER AFFI- DAVIT MUST LIST INDIVIDUAL DOCU- MENTS FOR WHICH PRIVILEGE CLAIMED - DISCOVERY OF COMMUNICATIONS MADE AFTER COMMENCEMENT OF PROCEEDINGS - PURPORTED EXCLUSION OF DOCUMENTS AS IRRELEVANT - Rules of the Superior Courts 1986, 0.31, rr.12, 13. The plaintiffs instituted proceedings against the defendants which involved, inter alia, claims of negligence and breach of duty in connection with lending transactions made between the defendants and the plaintiffs. The proceedings were instituted in 1986 and they related to transactions made between the defendants and the plaintiffs. The pro- ceedings were instituted in 1986 and they related to transactions dating back to the early 1970s and continuing thereafter. In the course of the proceedings, an affidavit of discovery filed on behalf of one of the defendants claimed legal professional privilege in respect of certain documents without identifying the precise documents in question. Another defendant also resisted discovery in respect of communications generated after the institution of the pro- ceedings. Finally, discovery was also resisted in respect of certain documents relating to loan transactions made prior to 1974. Another defendant had acknowledged, in a previous affidavit of discovery, the relevance of pre-1974 documents to the proceedings. HELD by the Supreme Court (Finlay CJ, Griffin and O'Flaherty JJ): (1) whatever the practice may have been in the past, privilege could not be claimed in a blanket manner in an affidavit of discovery, and the appropriate form under the 1986 Rules was to identify each document in question and the parti- cular basis on which privilege was claimed. Bula Ltd. -v- Tare Mines Ltd (Supreme Court, 5 February 1990) and Smurfit Paribas Bank Ltd. -v-AAB Export Finance Ltd. [1990] ILRM 588 applied; (2) while a court should be satisfied as a matter of probability of the relevance of documents to the proceedings and in particular should not allow a party to indulge in an exploratory or fishing expedi- tion in seeking further discovery, there was sufficient indication from the statement of claim that documents generated after the institution of the proceedings could be relevant; (3) since the relevance of documents concerning loans given by the defendants to the plaintiffs prior to 1974 had been acknowledged already by another defendant, and having regard to the wide ranging nature of the claim in the proceed ings, such documents were discoverable. W.J. PRENDERGA8T & SON LTD. -v- CARLOW COUNTY COUNC IL SUPREME COURT 30 MAY 1990 PRACTICE - SUPREME COURT - APPEAL - WHETHER APPEAL LIES - MALICIOUS INJURIES - CIRCUIT COURT HEARING - APPEAL TO HIGH COURT ALLOWED - WHETHER APPEAL BY WAY OF CASE

STATED LIES TO SUPREME COURT - WHETHER APPEAL ON POINT OF LAW LIES TO SUPREME COURT - Courts of Justice Act 1936, ss.38, 39 - Malicious Injuries Act 1981, ss.17, 18. The applicant brought proceedings in the Circuit Court under the 1981 Act seeking compensation from the respondent Council. The applifant was successful on the issue of liability in the Circuit Court, but on appeal to the High Court, O'Hanlon J held that compensation was not payable under the 1981 Act (High Court,, 3 June 1988). The applicant then purported to lodge an appeal to the Supreme Court against the decision of the High Court. The applicant also applied to O'Hanlon J for a case stated to the Supreme Court. O'Hanlon J held that no case stated could lie having regard to the terms of the 1936 Act. HELD by the Supreme Court (Finely CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ): neither an appeal on a point of law nor appeal by way of case stated could lie from the High Court in the circumstances of the instant case, since the statutory scheme of the 1981 Act indicated that it was subject to the provisions of ss.38 and 39 of the 1936 Act, and this affirmed the finality of a High Court decision in a Circuit appeal; but that under the .terms of the 1981 Act it was possible, by way of consultative case stated, for a malicious injuries claim to be referred to the Supreme Court either from the District Court or from the Circuit Court. FAMILY LAW - NULLITY - PARTY TO MARRIAGE HAVING HOMOSEXUAL ORIENTATION - OTHER PARTY UNAWARE OF SUCH ORIENTATION AT TIME OF MARRIAGE - WHETHER MARRIAGE A NULLITY - WHETHER LAW RECOGNISES INABILITY TO FORM NORMAL MARITAL RELATIONSHIP AS GROUND FOR ANNUL- MENT - ORIGINS OF NULLITY JURISDICTION OF COURTS - Marriage Law (Ireland) Amendment Act 1870, s.13. The petitioner entered into a ceremony of marriage with the respondent in 1981. The parties had had a sexual relationship prior to their marriage, and their sexual relation- ship continued for some time thereafter. By 1984, however, the respondent had begun to use excuses to sleep in a separate bedroom. The petitioner confided her prob- lems to a woman friend who told her that the respondent had been a homosexual for many years. The petitioner sought a decree of nullity on the ground that the respondent was, by virtue of his homosexual nature, unable to form a normal marital relationship. In the course of evidence a psychiatrist stated that the respondent was almost ex- clusively homosexual, with occasional heterosexual experiences. In the High Court (24 May 1989) (1990) 8 ILT Digest 106, Keane J dismissed the petitioner's claim for a nullity decree. On appeal by the petitioner HELD by the Supreme Court (Finlay CJ, Griffin, Hederman, McCarthy and O'Flaherty JJ) allowing the appeal: (1) the incapacity of one of the parties to a marriage to form or maintain a normal marital relationship with the other party, by virtue of a homo- sexual nature, is a valid ground for nullity; and it was appropriate in this context for the courts to use as an analogy the case law on F.(U.) (FORMERLY U.C.) -v- C.(J.) SUPREME COURT 11 JULY 1990

Recent Irish

Compiled by Raymond Byrne, B.C.L., llm., b.l, Lecturer in Law, Dublin City University

The following case summaries have been reprinted from the Irish Law Times and Solicitors Journal, with the kind permission of the publishers. BREEN -v- MINISTER FOR DEFENCE SUPREME COURT 20 JULY 1990. DEFENCE FORCES - PENSION - TERMINATION ON FOOT OF AWARD IN PERSONAL INJURIES ACTION - WHETHER INJURIES SUFFERED CONSTITUTED WOUND - WHETHER MINISTER EXERCISED DISCRETION TO TERMINATE PENSION ULTRA VIRES - WHETHER UNREASONABLE - Army Pensions Act 1923, s.13(2) - Army Pensions Act 1927, s.3(1). The applicant had been a member of the Defence Forces. By virtue of a road traffic accident in an Army vehicle, the applicant suffered severe personal injuries, and in a subsequent claim recovered £60,000 damages, though a large portion of this award went to meet debts of the applicant and to meet solicitor and client costs. In the meantime, the applicant had been awarded a disability wound pension under the 1923 and 1927 Acts. The Minister, after lengthy correspondence with the applicant's solicitors, purported to terminate the appli- cant's wound pension, pursuant to his powers under s.13(2) of the 1923 Act, as amended by s.3(1) of the 1927 Act. In the High Court, O'Hanlon J declined to grant judicial review of the Minister's decision: [19881 IR 242. On appeal by the applicant HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ) allowing the appeal: (1) a wound pension could be abated under the 1923 and 1927 Acts even where such wound was not sustained on active service; (2) while the courts would not interfere with an administrative discretion merely because the courts might have reached a different conclusion, nonetheless the Minister in the instant case would not appear to have responded to the representa- tions made on the applicant's behalf as to why the pension in the instant case should not have been abated; and although a decision of this kind did not in all cases require a reasoned judgment, the Minister's decision was ultra vires for unreasonable- ness, on the basis that it appeared not to have taken into account the individual circumstances of the applicant, and accordingly the Minister's abatement of the pension would be quashed. The State (Thornhiii) -v- Minister for Defence 11986]

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