The Gazette 1991

GAZETTE

JULY/AUGUST

1991

he sustained in the explosion, he was a person of unsound mind within the meaning of s.49. A large amount of medical evidence was given as.to the plaintiff's mental con- dition since the explosion. In addition to challenging the assertion that the plaintiff was of unsound mind, the defendant argued that s.49 only applied to a person who was of unsound mind prior to the incident giving rise to the proceedings. HELD by Barron J determining that the claim was not statute barred: (1) where there was a conflict of evidence between the medical witnesses, the evidence for the plaintiff was more convincing and on this basis it had been established that the plaintiff was of unsound mind, in that he was now a person in the mildly mentally handicapped class; (2) having regard to the normal meaning of the words used in s.49 of the 1957 Statute, its terms applied to a person who was of unsound mind at any time on the date when any right of action accrued, and it was not confined to persons who were of unsound mind before the date on which the cause of action accrued. Kirby -v- Leather [1965] 2 QB 367 discussed. O'GRADY (INSPECTOR OF TAXES) -V- L ARAGAN QUARR I ES LTD H I GH COURT 27 JUNE 1990 Revenue — Income Tex — Construction oporetlone — Deduction at source — Haulage of quarry materials — Hauliers entering Into agreements by wh i ch they became owners of quarry materials — Whether haulage for hire — Finance Act 1970. s.17 - Finance Act 1976, s.21. A number of road hauliers entered into agreements with the respondent company by which they agreed to sell quarry materials to the respondent and also agreed to transport the material to the destinations specified by the respondent. The rate per ton of material was to be paid by the respondent together with the supply of all necessary fuel. All materials were to be purchased from another company, Hanley Bros Ltd, with which the respondent was associated. The hauliers entered into a simultaneous agreement with Hanley Bros Ltd by which all sums owed to Hanley Bros Ltd for the purchase of quarry materials be deducted from the amount owed to the hauliers by the respondent for the supply of quarry materials. The hauliers who regularly collected quarry material from Hanley Bros Ltd, were debited with the cost and then delivered the material to customers of the respondent. At the end of each month, the respondent prepared an account in which the cost price of the material due to Hanleys was debited against the sale price payable by the respondent and a cheque for the balance was paid to the hauliers. The respondent conceded that this cheque represented the total of the transport charges involved. The inspector argued that the payments were made in respect of 'haulage for hire of materials for use in construction operations' and that, pursuant to s.17 of the 1970 Act (as inserted by s.21 of the 1976 Act), a deduction of 35% should have been made át source and forwarded to the Revenue. In the Circuit Court, it was held that the payments did not come within s.17. On a case stated HELD by Murphy J: (1) while the Court should attempt to ascertain

the substance of a contract, it should not ignore the actual bargain between the parties by substituting an agreement more in harmony with the commercial realities of the situation; and while the parties own labels will not determine the outcome, the transaction itself must be examined. Gatien Motor Co Ltd -v- Continental Oil Ltd 11979] IR 406 applied. Dicta in Irish Shell & BP Ltd -v- J Costello Z.ft/11981] ILRM 66 explained; (2) having regard to the clear terms of the agreements entered into between the hauliers and the respondent, there was no reason why it should not take effect as such; and in this light the parties had deliverately arranged that the relationship between them should not in law constitute a hiring, so that s.17 of the 1970 Act (as inserted by s.21 of the 1976 Act) did not apply. PARAMOUNT PICTURES CORP AND ORS -V- CABLELINK LTD HIGH COURT 8 MARCH 1990 Injunction — Interlocutory — Stateable caee — Balance of convenlenco — Whether damagea adequate remedy — Breach of copyright — Transmission of films through cable TV and microwave d i s t r i b u t i on ( MMD S) s y s t ems - Whathar Injunction required — Deposit of sums pending trial of action — P r a c t i ce — De f e n ce — Wh a t h ar sustainable — European Communities — Abuse o f dominant position — Treaty of Rome (1957), Articles 85, 86. The plaintiffs were companies holding the copyright in numerous films; the defendant was a company which operated a cable TV system principally in Dublin. The plaintiffs claimed injunctions and damages from the defendant on the basis that the defendant breached the copyright in the films by transmitting them on the cable TV system without paying the plaintiffs the appropriate royalties. On the plaintiffs' original application for interlocutory in- junctions, the principal defence was that the plaintiffs were acting in breach of Articles 85 and 86 of the Treaty of Roma At the hearing of that application, an interlocutory injunction was refused but the order of the Court required the defendant to lodge a certain percentage of its income from the cable system in the bank account to meet any claim which the plaintiffs might establish. This condition was complied with. The plaintiffs renewed their application for an interlocutory injunction. The plaintiffs raised the fact that the defendant was now planning to transmit material through a multi-point microwave distribution system (MMDS) in addition to the cable system. They also argued that the defendant could not rely on any new defences (which now included, inter alia, constitutional challenges to copyright legislation) and were confined to the defence based on Articles 85 and 86 of the Treaty of Rome, which the plaintiffs argued did not disclose an arguable defence. HELD by Murphy J declining to alter the previous order made: (1) the fact that the defendant was now relying on new grounds of defence could not be used to cast doubt on the strength of its case, and they should be considered on their merits; and since the plaintiffs did not suggest that these new grounds were themselves unsustainable, the defendant would be permitted to rely on them; (2) the defence based on Articles 85 and 86 of the Treaty of Rome should, like all other defences, be considered on its merits,

without expressing a view on whether it would ultimately be successful; and in the instant case it would not be struck out since it disclosed an arguable' case that the plaintiffs were abusing their position by treating the defendant less favourably than companies in other EC countries. Dicta In British Leyland Motor Córp Ltd-v- Armstrong Patents Co. Ltd. [1981] 2 CMLR 75 applied; (3) the question as to whether the, proposed use of the MMDS systerf) raised néw issues in the instant application should be Judged against the background of the general principles applicable in interlocutory applica- tions; and having regard in particular to the question of the adequacy of damages if the plaintiffs were ultimately successful, the deposit of a specified amount 'bf the defendant's income was sufficient to meet the full justice of the case. Campus Oil Ltd -v- Minister for Industry and Energy (No 21 [1983] IR 88 applied; (4) the amount required to be placed on deposit by the defendant was not excessive, but having regard to the fact that it now amounted to a very substantial sum in total, the parties might arrange to have it invested in Government securities or some other procedure to protect their interests.

iv