The Gazette 1992

SEPTEMBER 1992

GAZETTE

plaintiff had not exercised an independent judgment on the correctness of the fee to senior counsel; and it was to be presumed, in the absence of contrary evidence, that a brief- ing solicitor would do his duty conscien- tiously and would consider the appropriate level of fee payable; (2) having regard to the transcript of the trial of the action, the Taxing Master had not taken into account the actual complexity of the case even though the ques- tions put to the jury appeared to focus on the issues of false imprisonment; (3) the Taxing Master had erred in concluding that the fee agreed with the senior counsel was a 'special fee' within the meaning of 0.99, r.37(18) of the 1986 Rules, and the briefing solicitor had been correct to inform the plaintiff in advance of the potential fee he might be exposed to if the claim was unsuccessful; (4) the Taxing Master shou Id have al lowed the pre-trial opi n- ion under 0.99, r.37(18) having regard to the complexity of the case. The plaintiff, a clerical officer with the De- partment of Posts and Telegraphs, was in- terned pursuant to the Offences against the State (Amendment) Act 1940 between July 1957 and November 1958. On release, he was requested to sign a declaration to respect the Constitution of Ireland and not to support or assist any unlawful organisation. Between 1958 and 1983, the plaintiff declined to sign this declaration and he was suspended as a clerical officer. In 1983, he signed the decla- ration and he was restored to his position. He instituted proceedings claiming a salary with- out regard to the interruption arising in his suspension from duties. In the course of the action, the defendants claimed privilege from discovery of certain documents relating to the plaintiff's internment and also in connection with communications with the Gardai. Held by Murphy J ordering discovery of some Gormley v Ireland and Ors High Court 7 March 1991 PRACTICE — DISCOVERY — PRIVILEGE — GOVERN- MENT DEPARTMENT COMMUNICATIONS — INTERN- MENT OF PERSON — WHETHER MATERIAL PRIVI- LEGED — COMMUNICATIONS WITH GARDAI.

documents: (1) while some of the memo- randa and letters prepared in connection with the plaintiff's internment were confidential and sensitive, they could not be regarded as involving national security, and it was in the public interest that they be disclosed for the purposes of the proceedings; and likewise documentation concerning the alleged re- fusal of the plaintiff to sign the declaration should also be disclosed, except for some elements which concerned legal advice, which should be pasted over; (2) certain communications with the Gardai concerning internment were highly confidential and while they might be of some value to the plaintiff they were in no sense fundamental to it and discovery would not be ordered of these documents. Ambrose v CRegan Supreme Court 20 De- cember 1991 PRACTICE — EVIDENCE — IRRELEVANT CONSIDERA- TIONS—ROADTRAFFIC—WHETHER DRIVER OF CAR HAVING CONSENT OF OWNER — TRIAL JUDGE TAK- ING IRRELEVANT CONSIDERATIONS INTO ACCOUNT — Road Traffic Act 1961, s.118. In 1974, the plaintiff was injured while a passenger in the defendant's car which, at the time, was being driven by the defendant's son. The plaintiff issued proceedings against the defendant, but the question of compensa- tion was then addressed in the context of the Agreement operated by the Motor Insurance Bureau of Ireland (MIBI). The case ultimately came before the High Court in 1990 on the question as to whether the defendant's son was driving with the defendant's consent within s.118 of the 1961 Act. In holding that the defendant's son had not been driving with her consent, the trial judge (MacKenzie J) stated that the plaintiff was ultimately entitled to be compensated for his injuries and that the case was an attempt by the MIBI to offload responsibility onto the defendant. On appeal by the plaintiff Held by the Supreme Court (Finlay CJ, McCarthy and O'Flaherty JJ) al- lowing the appeal: the trial judge had taken into account irrelevant considerations in his judgment; and although the evidence in the

case supported a conclusion one way or the other, it was appropriate to order a re-trial of the action bearing in mind that the onus lay on the defendant todisprove consent. Buckley v Musgrave Brook Bond Ltd 11969] IR 440 followed. Merriman v Dublin Corporation and Dublin County Council High Court 29 November 1991 TORT — BREACH OF STATUTORY DUTY — FAILURE TO MAINTAIN SEWER— CONCURRENT WRONGDO- ERS—WHETHER ESTABLISHED—Public Health (Irl) Act 1878, ss.2, 15 The plaintiff was injured when he fell into an open gully on the side of a roadway. The gully, road and adjacent housing had been built by the Corporation in the Council's administrative area, but the roadway had not been taken in charge by the Council at the time of the accident. A grill on the gully had been removed at some unknown stage prior to the plaintiff's accident. The gully consti- tuted a 'sewer' within the meaning of s.2 of the 1878 Act. Held by Costello finding for the plaintiff against the Council only: (1) the Corporation owed no duty of care at common law to the plaintiff nor was it in breach of statutory duty to the plaintiff either as sanitary authority or as a road authority; (2) although the Council had not taken in charge the road in question, it was in breach of statutory duty since the gully constituted a 'sewer' under s.2 of the 1878 Act and it was obliged to keep in repair all sewers belonging to it under s. 15 of the 1878 Act. White v Hindly Local Board LR 10 QB 219 applied; (3) although the Corpo- ration had agreed with the Council to main- tain the road in question until it was taken in charge, this did not create any statutory obli- gations towards third parties and so the de- fendants were not 'concurrent wrongdoers' under s.11 of the 1961 Act and the Council was not therefore entitled to an indemnity from the Corporation; (4) the plaintiff had not been a candid witness in relation to the extent of his injuries and having regard to the medi- cal evidence he was entitled to £10,000 in damages.

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