The Gazette 1991

JULY/AUGUST.

1991

GAZETTE

ratlrad — Annual Revision of Rateable Property (Ireland) Ame n dme nt Act 1860, s.7. The applicant company operated a grain silo. The silo consisted of a number of grain bins, each of which was fed by a number of conveyers and elevators and other machinery. The respondent Commissioner accepted that the machinery was not rateable as it constituted manufacturing plant for the purposes of the 1860 Act. In the Circuit Court, Judge Fawsitt found that the silo also constituted a manufactory for the purposes of the 1860 Act. The Com- missioner requested a case stated. Judge Fawsitt had retired at the time when the High Court heard the case stated. HELD by Barron J: (1) on the authorities, the silos constituted machinery within s.7 of the 1860, Act; (2) the silos did not constitute a manufactory within s.7 since the essential purpose of a silo was to handle grain; and while various functions were performed on the grain to make it suitable for sale to the company's customers these did not purport to produce a different product. Dicta in Cronin -v- Strand Dairy Ltd (High Court, 18 December 1985) applied; (3) there was no evidence in the case stated to justify the findings of the Circuit Court that the silos constituted a manufactory within s.7 of the 1860 Act, and since Judge Fawsitt had retired the correct approach was to order that the silos were not exempt from rating. North Western Health Board -v- Martyn [1988] ILRM 519; [1987] IR 565 dis- tinguished; (4) although the Commissioner's concession that the machinery in the silos was not rateable.must have been based, in part, on a view that the entire plant was a manufactory, he was not estopped from raising an issue of fact in the instant case; nor was it relevant that Judge Fawsitt had found that similar plant in the premises next door to the applicant was exempt from rating and that this decision had not been appealed. D.P.P. (CROWLEY) -V- CONNORS H I GH COURT 10 MAY 1990 Criminal Law — Road Traffic — Driving w i t h axcasa of alcohol — Cartlficata of Me d i c al Buraau of Road Safaty — Evldenca of non-delivery of certificate to accueed — Whathar charge ahould be dismissed — Presumption of compllanes w i t h statutory duties — Practice — Case Stated — Lack of clarity — Road Traffic (Amendment) Act 1978, ss.22, 23. The defendant had been charged with driving a mechanically propelled vehicle when the level of alcohol in his system was in excess of the permitted levels, contrary to s.49 of the Road Traffic Act 1961, as amended by the 1978 Act. At his trial in the District Court, he gave evidence that he resided at a campsite on which a number of persons with his first and last name also resided. He also stated that he did not receive a copy of the certificate of the Medical Bureau of Road Safety as to the results of the blood test carried out by the Bureau under the terms of the 1978 Act. Evidence given by a postman was that he had delivered the certificate to one of the houses on the site, but that he was aware that there were a number of persons living there with the defendant's name. The District Justice dismissed the charge against the defendant on the ground that it had not been shown that the Bureau had complied with its statutory duty to forward the test

results to the defendant as required by s.22 of the 1978 Act. On case stated HELD by Lavan J remitting the matter to the District Court: having regard to the presumption of compliance with statutory duties in s.23 of the 1978 Act it was not sufficient to establish that the Bureau was in breach of its duties for the defendant to indicate that the Bureau's certificate had not been delivered to him; and the case should be re- entered in the District Court to enable the Justice ,to hear any submissions which might be made by the defendant as to whether the Bureau was in breach of such duties, the onus of establishing non- compliance being on the defendant. Director of Public Prosecutions -v- Walsh [1985] ILRM 243 applied. Par Lavan J: there was a difficulty identifying the precise question of law posed in a case stated where the legal submissions made in the lower court are not identified in the case stated itself and where a general question is posed. CORCORAN A ND ORS -V- ELECTRICITY SUPPLY BOARD H I GH COURT 10 MAY 1 9 90 Employment — Dismissal — Allegations of serious m i s c o n d u ct d u r i ng strike — S t r i k e s e t t l e m e nt I n c l u d i ng n o n- v l c t l m l s a t l on clause — Whether pre- cluding dismissal In absence of criminal c o n v i c t i o ns — Wh a t h ar p r o c e d u r es a d o p t ed fair. In the course of a lengthy unofficial dispute by the defendant Board's employees, allega- tions were made that some of the strikers engaged in physical violence towards and intimidation of the Board's management and, in some instances, intimidation of their wives and children and also interference with and damage to property of staff mem- bers and of the Board. As part of the strike settlement, a non-victimisation clause was agreed. In clarifying the clause, the Board's Industrial Council stated that 'proven serious cases of endangering life or limb, mis- appropriation or damage to property or other matters with legal connotations could not of course be covered by a no victimisation clause'. The Board decided that those em- ployees who had engaged in the activities mentioned should be dismissed. The plain- tiffs were informed that the Board's dismissal procedure would be invoked in relation to them. The plaintiffs did not participate in the procedures at local level, but were represented at the later regional stages by their trade union officials. The plaintiffs were dismissed. The plaintiffs challenged the validity of the dismissals on the grounds that the procedures adopted were not in accordance with fair procedures and that the no victimization clause precluded the Board from dismissing them in the absence of criminal convictions concerning the actions alleged to have taken place during the strike. HELD by Barron J dismissing the claim: (1) the plaintiffs could not complain of the alleged deficiencies in the procedures adopted at local level since they were not participating in the process at the time; nor could they complain in relation to the procedures at regional level since their union representatives had insisted that such procedures be adopted; (2) as a matter of construction and having regard to the clarification from the Board's Industrial Council, the non-victimisation clause could not be interpreted as precluding the Board from adopting the dismissal procedures only where criminal charges had been brought against the plaintiffs.

Recent Irish Ca s es

Compiled by Raymond Byrne, B.C.L., ll.m., 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. M A H ON -V- BURKE A ND ANOR H I GH COURT 16 MAY 1990 Practice — A c t i on — Survival of action — Deceased c omp r om l a l ng action — Whether dependants entitled to maintain a c t i on n o t w l t h a t a n d l ng c omp r om i se — Statute — Interpretation — Civil Liability Act 1961, ss.7, 48, 49. The plaintiff's deceased husband had been under the care of the defendants in hospital. The deceased had instituted proceedings against the defendants in negligence arising from the treatment he received, and these proceedings were compromised prior to the deceased's death. After her husband's death, the plaintiff instituted the instant pro- ceedings claiming damages pursuant to s.48 of the 1961 Act as a dependent of the deceased as well as claiming funeral ex- penses. She also claimed on behalf of a number of other persons who were related to the deceased: The defendants argued that the proceedings were not maintainable. In the Circuit Court, it was held by Judge Gleeson that the plaintiff was entitled to funeral expenses only under s.49. On appeal HELD by Lavan J dismissing the plaintiff's entire claim: (1) since the plaintiff's husband had compromised his action prior to his death there was no longer vested in him before his death a cause of action within the meaning of s.7 of the 1961 Act, and so the plaintiff could not maintain the proceedings under s.48 of the 1961 Act. Dicta in Gamme/I -v- Wilson [1982] AC 27 approved; (2) s.49 was to be interpreted according to its ordinary meaning, and in allowing for funeral expenses it was confined to claims by a person entitled to sue pursuant to s.48, and since the plaintiff was not entitled to maintain a claim under s.48 she was not entitled to funeral expenses under s.49. D. COAKLEY ft CO LTD -V- COMM I S- SIONER OF VALUATION H I GH COURT 2 9 MAY 1990 L o c al g o v a r n m a nt — R a t i ng — Ma n u f a c t o ry — Sltos uaod f or grain h a n d l i ng — Wh a t h ar uaa of alloa producaa d i f f e r e nt p r o d u ct — Practice — Caaa Stated — No roaeon given f or f i n d i ng In lower c o u rt — J u d ge having