The Gazette 1991

GAZETTE

JULY/AUGUST

1991

revealed the defects complained of; and the plaintiffs were entitled to damages in respect of these defects, as well as damagps for discomfort which would arise principally when the work on the defects would be carried out. HANAFIN -V- GAYNOR HIGH COURT 29 MAY 1990 Negligence — Solicitor — Purchese of lend — Requisitions on title — Plennlng permieelon — Defects resulting In property being of diminished velue — Whether plsnnlng permission properly Investlgstéd by eolicitor — Test of liability The defendant, a solicitor, acted on behalf of the plaintiff in connection with the pur- chase of property in 1981 for £540,000. Certain documents were furnished to the defendant at contract stage, including a 1970 planning permission for a proposed industrial building on the property. The defendant processed requisitions on title in connection with the property, which revealed the existence of a 1973 planning permission but which was stated not to affect the property in question. After the transaction was completed, the plaintiff be- came aware of a 1972 planning permission which severely affected the value of the property, and the property was eventually sold for £150,000 in 1985. The plaintiff claimed damages in negligence and/or breach of contract, primarily on the basis that the defendant should have discovered by means of proper requisitions on title the existence of the 1972 permission. The plaintiff also claimed that he had entered into the contract on the basis of a representation by the defendant that the property was worth £1.2 million. HELD by Egan J dis- missing the claim: (1) there was no evidence that the defendant had to any time made any representation to the plaintiff as to the value of the property; (2) the defendant could only be held liable in negligence if guilty of such a failure as no other solicitor of equal status and skill would be guilty of if acting with ordinary care, unless the practice which the solicitor was following had inherent defects which ought to have been obvious to any person giving the matter due consideration. Roche -v- Pei/ow [1986] ILRM 189; [1985] IR 232 and Dunne -v- National Maternity Hospital [1989] ILRM 735; [1989] IR 91 followed; (3) the defendant had prepared proper requisitions on title in connection with the purchase^ and the answers received when the 1973 planning permission was revealed gave no grounds for the defendant to query its accuracy or to believe that there was a 1972 permission in existence; and having regard to the fact that a search con- ducted by professional law searchers shortly after the contract had been completed also failed to reveal the existence of the 1972 permission, it could not be said that the defendant was guilty of such failure as no other solicitor of equal status and skill would be guilty of if acting with ordinary care. DIRECTOR OF PUBLIC PROSECUTIONS -V- KENNY HIGH COURT 8 MARCH 1990 Criminal law — Road traffic — Driving w i th Iaval of Intoxicant aa to bo In- capabla of controlling vohlclo — Opinion

prejudice to any constitutional rights which might have been affected by his orders. The applicant sought an inquiry and release under Article 40.4.2 of the Constitution. HELD by Hamilton P ordering his release: (1) the preliminary examination conducted by District Justice Mahon was null and void and the Circuit Criminal Court thus had no jurisdiction to try him. The People -v- Boggan [1958] IR 67 applied; (2) while the applicant did not have a constitutional right to a .prelimjpary examination, the applicant's trial was not conducted in due course of law within Article 38.1 of the Constitution, and so the 1988 Act had not validated the applicant's trial since it was enacted on the express basis that the Oireachtas did not intend to infringe any person's constitutional rights. Shelly -v- Mahon [1990] IR 36 applied; (3) having regard to the fact that the applicant had served over 3 years in prison, it would be unjust and inequitable to return the matter to the District Court and the applicant would be released immediately. On appeal by the respondents HELD by the Supreme Court (Griffin, Hederman, McCarthy, O'Flaherty and Keane JJ) dismissing the appeal : (1) a trial in due course of law within Article 38.1 of the Constitution required compliance with steps provided for in legislation, including those which are required as preliminary to a trial on indictment, and the applicant thus had a constitutional right to have a preliminary examination conducted by a District Justice duly appointed in accordance with the Constitution. O'Shea -v- Director of Public Prosecutions [1989] ILRM 309; [1988] IR 655 discussed. Quaere per O'Flaherty J (Hederman J concurring): whether it would be constitutionally permissible for legislation to be enacted which would remove the right to have a preliminary examination prior to trial on indictment; (2) since the 1988 Act by its terms did not purport to validate any orders made in conflict with constitutional rights, it did not alter the invalidity of the preliminary examination conducted in the applicant's case, and since the return for trial was null and void the applicant was entitled to the relief sought. Shelly -v- Mahon [1990] IR 36 applied; (3) once the applicant's conviction had been found invalid, the High Court must immediately order his release and it was not within its competence to consider whether the case should be returned to the District Court, this being a matter for the Director of Public Prose- cutions. ROHAN -V- BORD NA MONA HIGH COURT 10 MAY 1990 Limitation of actions — Extsnalon of tlmo — Parson of unsound mind — Whsthsr sstabllshod In svidsncs - Whsthsr axtsnslon applicable whars Incldsnt giving rlss to proceodlngs rasults in unsoundnass of mind — Statute of Limitations 1957, s.49. In February 1985, the plaintiff sustained serious head and facial injuries as a result of an explosion which occurred in the course of his employment with the defendant. Proceedings claiming damages against the defendant were not issued until September 1988. The plaintiff claimed to be entitled to an extension of the normal three year time limit under s.49 of the 1957 Statute on the ground that, by reason of the injuries which

of modlcal practitioner aa to fltnoaa of accuaod to drive — Presonca of modlcal practltionar in polica station — Whether In broach of accuaod'a right to privacy - Road Traffic (Amendment) Act 1978, s.13 — Constitution, Article 40.3. The defendant had been charged with driving a mechnically propelled vehicle when he was under the influence of an intoxicant to such an extent as to be incapable of having proper control of his vehicle, contrary to s.49 of the Road Traffic Act 1961, as amended. The defendant had been arrested under s.49 and brought to a Garda station where he consented to having a registered medical practitioner take a blood sample No analysis was made of this sampla At his trial in the District Court, the defendant objected to evidence being given by the medical practitioner as to his opinion of the de- fendant's level of intoxication. The objection was on the ground that such evidence was obtained in breach of the defendant's right to privacy. On a case stated HELD by Barron J: (1) the defendant had a right to privacy while in police custody, but since the de- fendant had not argued that there was an abuse of s.13 of the 1978 Act, under which the medical practitioner was in the Garda station, the full nature of that right did not arise in the present case; (2) where the defendant had consented to the sample being taken by the medical practitioner, it was perfectly permissible for the doctor to give evidence of his observation of the defendant. Kennedy -v- Ireland [1988] ILRM 472; [1987] IR 587 referred to ; dicta in Sullivan -v- Robinson [1954] IR 161 distinguished. GLAVIN -V- GOVERNOR OF TRAINING UN IT MOUNT JOY PR I SON H I GH COURT, 11 MAY 1990; SUPREME COURT, 21 DECEMBER 1990 Constitution - Administration of justice - Trial of offoncos - Failure to issuo warrant continuing district justice In office due to mistake as to his age - Sub s equent l e g i s l a t i on v a l i d a t i ng Justice's orders - Preliminary axamlna- lon conducted prior to passing of legislation - Whether null and void - Whether trial conducted In due course of law - Lapse of time - Whether matter to bo remitted to District Court - Criminal Procedure Act 1967, Part II - Courts (No. 2) Act 1988 - Constitution, Article 38.1 The applicant had been charged in 1986 with offences under the Larceny Act 1916, as amended. He appeared before District Justice Mahon, who conducted a preliminary examination under Part II of the 1967 Act and sent him forward for trial in the Circuit Court. There, the applicant pleaded guilty and was sentenced to 10 years imprisonment. In 1987, the Court of Criminal Appeal reduced this to 6 years. At the time that District Justice Mahon conducted the preliminary examination in the applicant's case, he had in fact reached retirement age, but due to a misundertanding as to his correct age no warrant continuing him in office had been issued under the Courts of Justice (District Court) Act 1949. The Courts (No. 2) Act 1988 purported to validate retrospectively orders made by District Justice Mahon, but without

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