The Gazette 1991

JULY/AUGUST. 1991

GAZETTE

SHOULD BE TAKEN TO MEAN 'OR' - WHETHER STATUTORY PROVISION MEANINGLESS IF 'AND' INTERPRETED CONJUNCTIVELY - Malicious Injuries Act 1981, ss.5,6. The applicant was the owner of a jewellery shop. The shop was entered by a three man gang, who committed extensive property damage inside the shop, struck the applicant on the arm with a baseball bat (breaking the arm in three places) and stole a number of trays of rings and other items of jewellery. The gang escaped in a car driven by a fourth member. The jewellery stolen was valued at £10,650, while the damage done to the display cases in the shop was in the sum of £750. The applicant claimed damages against the Corporation under s.6 of the 1981 Act, which provides that a malicious injuries claim for stolen property can be made arising from a situation in which 'three or more persons . . . are tumultuously and riotously assembled together. . ." The applicant's claim was dismissed in the Circuit Court. On case stated HELD by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) affirming the Circuit Court: (1) to construe the word 'and' in s.6 in a disjunctive sense would be to amend the section, and such an interpretation was impermissible having regard in particular to s.5 of the Act (which dealt with claims for damage to property aa opposed to stoker, property), which hod w a d the phrase t 'urttawfutty, rioutousty or tumuhuousty'; I2> I while the reference to *thrae or more persons' in s.6 of the 1961 Act might not | be readily consistent w i th the cuncapt of a i 'tumultuous* as woh as a 'riotous' saMiiSjh, ) this did not render s.6 inoperable; and the proper meaning of the section was that a successful claim would be confined to cases where looting had taken place as part of a riot; and so construed, the necessity to prove a tumultuous assembly separately and in addition to a riotous assembly became plain and meaningful. Dicta in Dwyer Ltd -v- Metropoiitan Mice District Receiver [1967] 2 QB 970 and Fosters of Castlereagh Ltd. -v- Secretary of State [1976] NI 25 approved. FALCON TRAVEL LTD -V- OWNERS ABROAD GROUP PLC (TRADING AS FA LCON LE I SURE GROUP) H I GH COURT 28 J UNE 1990 TORT - PASSING OFF - WHETHER PECUNIARY LOSS AN ESSENTIAL INGREDIENT - WHETHER APPROPRI- ATION OF REPUTATION MOST SIGNI- FICANT FACTOR - TOUR OPERATOR USING SAME NAME AS ESTABLISHED TRAVEL AGENT - NO INDICATION OF FINANCIAL LOSS - REMEDY - INJUNCTION - WHETHER DAMAGES MORE APPROPRIATE REMEDY The plaintiff company for a number of years carried on the business of travel agent primarily in the Wicklow and Dublin areas. The defendant company was a substantial tour operator and it published holiday brochures which circulated originally in the UK area. In 1988, the defendant decided to extend its operations to this State and indicated that it intended to trade as a tour operator under the name 'Falcon'. The plaintiff objected that this would lead to confusion in the mind of the public. The defendant responded that since it would

only carry on business as a 'wholesale' operator, this would not affect the plaintiff's business as a 'retail' travel agent. The plaintiff instituted proceedings for passing off claiming injunctive relief. It was accepted by the plaintiff that the confusion com- plained of did not cause any loss of customers to the plaintiff but it was argued that the tort had been established in that the plaintiff's reputation had become submerged in the defendant's. HELD by Murphy J: (1) it was correct to say that damage of some kind must be shown in order to establish the tort of passing off, but such damage arose primarily from the wrongful appropriation of the reputation attaching to the business which brings the complaint; and it was not always a question of establishing pecuniary loss. Dicta in C & A Modes -v- C & A (Waterford) Ltd [1976] IR 198 approved. Dicta in Erven Warnink BV -v- J Townsend & Sons Ltd. [1979] AC 731 discussed; (2) in the circumstances the Court would ex- ercise its discretion against granting an injunction, and award damages to the plaintiff which would be of such a level as would enable the plaintiff to mount an advertising campaign to explain to the public and thosa in the business the real difference between the parties. CHILDREN CONSIDERED - PRACTICE - COSTS — Guardianship of Infants Act 1964, s.11 - Status of Children Act 1987, s.38. The plaintiff husband issued proceedings under s.11 of the 1964 Act seeking, aa guardian, a declaration concerning the welfare of two of his wife's (the defendant's) children. The wife sought an order under s.38 of the 1987 Act requiring the plaintiff and the two children to submit to blood tests; she claimed that the plaintiff was not the father of the children, though at the time they were conceived she was lawfully married to the plaintiff and was having sexual relations with him. Having reserved judgment, the High Court (Lavan J) granted the order under s.38. He awarded the plaintiff the costs of the motion on the ground that there was an agreement between the parties that he would not be required to pay costs of separation. On appeal HELD by the Supeme Court (Griffin, Hederman and McCarthy JJ): (1) while s.38 of the 1987 Act was silent as to how the Court might exercise its discretion as to whether to order a blood test, it was clear that the discretion must be exercised judicislly by tsking account of relevant matters and disregarding irrelevant ones; but there was no indication that the trial judge had failed to take into account the welfare of the children or the relationship between the husband and the children; and the order under s.38 of the 1987 Act would be upheld; (2) there was no evidence to support the High Court judge's reference to an agreement between the parties concerning costs in a case such as the present, and the costs of the s.38 motion would be reserved to the full action under s.11 of the 1964 Act. JLFJL COURT m FAMILY LAW - VtfBERNTTY - BLOOD TESTS - DNA FINGERPRINTING - HUSBAND BRINGING GUARDIANSHIP 'PROCEEDINGS - WIFE DENYING PATERNITY - JUDGE ORDERING BLOOD TESTS - WHETHER WELFARE OF

D.B. (D. O'R) -V- N. O R. SUPREME COURT 13 DECEMBER 1990 FAMILY LAW - NULLITY - CONSENT - WHETHER REAL OR APPARENT - PETITIONER HAViNG SPENT MOST OF HER LIFE IN ORPHANAGE - WHETHER AWARE OF CONSEQUENCES OF MARRIAGE - DURESS AND UNDUE INFLUENCE - WHETHER ESTABLISHED - PREGNANCY OF PETITIONER - DELAY - WHETHER NULLITY DECREE SHOULD ISSUE The petitioner was 16 years of age when she married the respondent in 1966. At the time, she had spent'most of her life in a convent orphanage, in which she had been placed by her parents. The petitioner regarded the nun in charge as her mother. The petitioner had met the respondent after she had begun her first job. They had intercourse, and she became pregnant. Her parents became angry and sent her back to the orphanaga When the pregnancy was confirmed, the nun in charge contacted the respondent who was living in England and he agreed to marry the petitioner. The marriage arrangements were not discussed with the petitioner until shortly before the ceremony. After the marriaga they lived together for almost 20 years and had five children in all. The marriage appeared to break down in 1983 and the petitioner started to go out with friends. She had a liaison with a married man, there were violent disagreements with the respondent and the petitioner ultimately obtained a barring order against him. She moved out of the family home in 1988 and began living with another man. In the High Court, she applied for a decree of nullity primarily on the ground of duress or undue influence from the nun in charge of the orphanaga Carroll J dismissed the petition (High Court, 29 July, 1988) (1989) 7 ILT Digest 82. On appeal, the petitioner abandoned the argument based on duress and undue influence but argued that the petitioner's consent was not full and frea HELD by the Supreme Court (Finlay CJ, Hederman and O'Flaherty JJ) allowing the appeal: (1) the finding by the trial judge that the nun in charge would have helped the petitioner if she had indicated that she did not wish to go through with the marriage did not dispose of the consent issue; (2) since the petitioner had never been given any instruction on the nature of marriage, had been abandoned by her parents and was not offered any alternative to marriage, she was not in a position to give her consriet, and her consent was not real but apparent. Dicta in N.(K) -v- K. [1986] ILRM 75; [1985] IR 733 applied; (3) the Court should be reluctant to grant a decree of nullity where there was a long delay, as in the instant casa but having regard to the evidence (including the forth- right evidence of the respondent) as to the petitioner's lack of real consent to the marriage, the Court would grant a decree of nullity. DUGGAN -V- DUBL IN CORPORATION SUPREME COURT 4 DECEMBER 1990 MALICIOUS INJURIES - STOLEN PROPERTY - THEFT OF JEWELLERY FROM SHOP BY THREE PERSON GANG - WHETHER PROPERTY STOLEN BY PERSONS WHO ARE 'TUMULTUOUSLY AND RIOTOUSLY ASSEMBLED' - STATUTORY INTERPRETATION - WHETHER 'AND'