The Gazette 1992

GAZETTE

MARCH 1992

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, 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.

dant had appeared to accept the validity of the plaintiff's unsworn account at the trial of the action, the Court would order a retrial on liability in the Circuit Court hav- ing regard to the fundamental nature of the rule that evidence be given on oath, since the plaintiff's interests could be preserved by an award of interest under s.22 of the Courts Act 1981 if he were ultimately to be successful. Per curiam : where it appears that a child does not understand the menaing of an oath, the proper course is to adjourn the trial so that the child may be adequately instructed on its meaning. COMPANY - WINDING UP - SECURED CREDITOR - SALE OF SECURED PROPERTY BY LIQUIDATOR WITH CONSENT OF SECURED CREDITOR - AGREEMENT BY LIQUIDATOR TO DISCHARGE SECURED CREDI- TOR IN FULL FROM PROCEEDS - WHETHER SUBJECT TO PAYMENT OF PROPORTION OF EXAMINER'S FEES - ESTOPPEL - WHETHER INTEREST PAYABLE ON DEBT AFTER WINDING UP - Supreme Court and High Court (Fees) Order 1986 - Companies Act 1963, s.284 The company was put into liquidation in 1987. Hill Samuel & Co (Irl) Ltd (the Bank) was a secured creditor in respect of a substantial site. The Bank agreed with the liquidator to the sale of the site. On depos- iting the deeds of the site with the liquida- tor, the Bank stated in writing that its con- sent was subject to full discharge by the liquidator of the sum due under its security together with interest up to payment. The liquidator agreed, in writing, that this was the basis of the consent to the sale. On completion of the sale, the I iqu idator sought to deduct from the amount payable to the Bank a portion of the costs of the Examiner incurred under the 1986 Fees Order. There was also dispute as to whether interest was payable on the secured amount. In the High Court, Costello J HELD that the rel- evant Examiner's costs were correctly de- ductible and that no interest was payable after the commencement of the winding up. On appeal by the Bank HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) allow- ing the appeal: (1) in view of the express agreement between the liquidator and the Bank at the time of the consent to the sale of the site, which was enforceable notwith- standing the failure at that time to advert to the question of fees, the liquidator was precluded from arguing that the Bank should pay a portion of the Examiner's fees in- curred; (2) assuming that Court approval for such agreement would have been re- quired, the liquidator could not now make a case on that point since no such applica- tion for approval had been made to the High Court; (3) where a creditor chooses not to bring the property over which it has an interest into the winding up, as the Bank In re McCairns (PMPA) pic (In Liquida- tion) Supreme Court 18 July 1991

did in the instant case, then it would appear logical that the creditor is entitled to rely on the terms on which it granted the security, including the claim to interest, so that the liquidator's claim is limited to the equity of redemption of the property; (4) the Bank was therefore entitled to claim interest after the date of the winding up and the trial judge had thus erred in deciding that s.284 of the 1963 Act had incorporated the rule in bankruptcy which would exclude such an award of interest. In re Humber Iron- works and Shipbuilders Co (1869) LR 4 Ch App 643 not approved. In re Egan Electric Co Ltd [1987] IR 398 overruled. Cox v Ireland and Ors Supreme Court 11 July 1991 CONSTITUTION - PERSONAL RIGHTS - PROPERTY RIGHTS - CONVICTION IN SPECIAL CRIMINAL COURT - FORFEITURE OF AND DISQUALIFICATION FROM EMPLOYMENT BY STATUTORY BODY OR ONE FUNDED BY THE OIREACHTAS - WHETHER STATE ENTITLED TO ENACT FORFEITURE LAWS TO MAIN- TAIN ITS AUTHORITY - WHETHER PARTICULAR LAW IMPERMISSIBLY WIDE IN SCOPE - WHETHER CON- STITUTING FAILURE TO PROTECT CONSTITUTIONAL RIGHTS AS FAR AS PRACTICABLE - Constitution, Arti- cle 40.3 - Offences against the State Act 1939, s.34 The plaintiff, a qualified vocational teacher, pleaded guilty in the Special Criminal Court to certain firearms offences and was sen- tenced to two years' imprisonment. While serving his term of imprisonment, his posi- tion was filled on a temporary basis. On his release, he was informed that by virtue of s.34 of the 1939 Act, his teaching position had been forfeited and that he was dis- qualified from holding the position for a period of seven years. The plaintiff insti- tuted proceedings claiming that s.34 of the 1939 Act was in breach of the Constitution. In the High Court, Barr J granted the decla- ration sought (High Court, 2 October 1990) (1991) 9 ILT Digest 170. On appeal by the defendants HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ) dismissing the ap- peal : (1) s.34 of the 1939 Act constituted an attack and major inroad on the unenumerated right of the person involved to earn a living and also on certain property rights of that person protected by the Con- stitution, such as the right to a pension or the right to the advantages of a subsisting contract of employment; (2) the State was entitled, for the protection of public peace and order and to maintain its own stability, to provide by law for far-reaching penalties to deter major crimes threatening the State, and to ensure that persons who commit such crimes are not involved in carrying out the functions of State, but such laws must also protect the constitutional rights of the citizen; (3) since s.34 of the 1939 Act was mandatory in terms and since forfei- ture followed a conviction in the Special Criminal Court without any reference to

Mapp v Gilhooley Supreme Court 23 April 1991 PRACTICE - EVIDENCE - UNSWORN EVIDENCE OF CHILD - WHETHER ADMISSIBLE IN CIVIL TRIAL - TRIAL JUDGE SATISFIEDTHATCHILD UNDERSTOOD IMPORTANCE OF TELLING TRUTH - WHETHER MIS- TRIAL RESULTING - ACQUIESCENCE OF PARTIES TO TRIAL PROCEDURE - WHETHER ESTOPPEL ARISES - Constitution, Article 40.1, 40.3 The plaintiff, who was 8 years of age at the date of the trial of his action, instituted proceedings in the High Court claiming damages arising from personal injuries sus- tained while a pupil in the school managed by the defendant. When he was called to give evidence, he was asked by the trial judge whether he understood the oath, and the plaintiff stated he did not. The trial judge was asked by the plaintiff's counsel to hear his evidence and to judge it as best he could. The trial judge told the plaintiff that it was very important to tell the truth and then proceeded to hear the plaintiff's account of the incident in the school. The trial judge also heard the sworn evidence of teachers who had been supervising the plaintiff, their account of the incident in question being different from the plaintiff. The trial judge concluded that he preferred the plaintiff's account, found that the de- fendant had been negligent and awarded the plaintiff £8,000 damages. On appeal, the defendant argued only that the proce- dure adopted by the trial judge in hearing the plaintiff's unsworn evidence amounted to a mistrial. HELD by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) allowing the appeal and ordering a retrial on liability: (1) a fundamental principle of the common law was that viva voce evi- dence in civil or criminal trials must be given on oath or affirmation, subject to certain exceptions contained in legislation applicable to criminal trials only; since the purpose of the rule is that such evidence shall be true by the provision of a moral or religious and legal sanction against delib- erate untruth, such a rule cannot be re- garded as inconsistent with the Constitu- tion, either on the basis that it is discrimina- tory or as being an impermissible restric- tion on the right of access to the courts; (2) the practice by which documentary evi- dence can be accepted as proof of mátters by agreement of the parties does not consti- tute an exception to the rule of evidence by oath or affirmation, since such agreement is a method of avoiding the giving of evi- dence; (3) the inevitable consequence of acting on unsworn viva voce evidence in a civil case is that a mistrial has occurred; and a party could only be prevented from seeking to argue a mistrial in such a case on the basis of estoppel by acquiescence or on the ground that to allow an appeal would amount to a virtual fraud or an abuse of the process of the courts; (4) while the defen-

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