The Gazette 1992

SEPTEMBER1992

GAZETTE

Recent Irish Cases Compiled by Raymond Byrne, BCL, LLM, BL, Lecturer In Law, Dublin City University. The following case summaries hove been reprinted from the Irish Law Times and Solicitors Journal with the kind permission of the publishers.

not appropriate to grant interlocutory man- datory relief as there was no guarantee that this would give the plaintiff the remedy she sought, namely review of her transfer by another body, since the court was not capa- ble of ru I i ng on her competence as a teacher and this would in any event be intruding on the rights of others to take the action ojjen to them. Campus Oil Ltd v Minister for Industry and Energy (No.2) [1983] IR 88 distinguished. MacGairbhith v Attorney General High Court 13 November 1991 CONSTITUTION - ACCESS TO COURTS - STAMPING FEES - WHETHER UNREASONABLE INTERFERENCE WITH ACCESS TO COURTS - LOCUS STANDI - WHETHER PLAINTIFF ACTUALLY INHIBITED FROM GAINING ACCESS TO COURTS - Constitution, Article 40.3 The plaintiff instituted proceedings claim- ing that his right of access to the courts had been infringed by the requirement that stamp duty be paid on legal documents. He also claimed that access was restricted by the failure of the State to make available a law library for lay litigants. HELD by O'Hanlon J dismissing the claim: (1) to resolve the difficult question raised by the applicant would require detailed evidence of the intervention by the State in the work of the law courts for the purpose of raising rev- enue, and it would be difficult to establish that all such interventions involved a breach of constitutional rights without regard to the question of whether hardship resulted; and in the absence of actual evidence, it was not appropriate to determine the issue; (2) since it was apparent that the plaintiff had exer- cised his right of access to the courts on a number of occasions and there was no evidence that he had actually been pre- vented from exercising his right, the ques- tion of his locus standi to raise the issue was in doubt, and this was another reason why the resolution of the matter should be left to another time. Per O'Hanlon J: the frighten- ing cost of litigation, made up in part by the heavy stamp duties levied by the State are a major deterrent to access and may in many cases actually prevent parties from availing of rights nominally guaranteed to them under the Constitution; and a similar claim to that in the instant case had been upheld in the United States. Boddie v Connecticut, 401 US 371 (1971) referred to; (3) while lay litigants were afforded every opportunity by judges and court staff to present their cases as an aspect of the right of access to the courts, the further provision by the State of a law library to lay litigants was not an unenumerated right under the Constitu- tion. Trustee Savings Bank Dublin v Maughan High Court 8 October 1991 CONTRACT - BANKER AND CUSTOMER - CURRENT ACCOUNT LOAN SUBJECT TO 'CHARGES' AND

O'Dea v O Briain and Ors High Court 22 October 1991 ADMINISTRATIVE LAW - FAIR PROCEDURES - WHETHER APPLICABLE TO EXERCISE OF POWER OF RELIGIOUS SUPERIOR OVER NUN - NUN ALSO EN- GAGED AS MEMBER OF TEACHING STAFF IN SCHOOL - BOARD OF MANAGEMENT REQUESTING TRANSFER OF NUN - WHETHER TRANSFER POWER VALIDLY EXERCISED - INTERLOCUTORY INJUNC- TION - WHETHER MANDATORY INJUNCTION SHOULD BE GRANTED The plaintiff, a nun who was a member of the Congregagtion of St Louis, was also a teacher in a St Louis school. The board of management of the school communicated their dissatisfaction with the plaintiff's sick leave absence and other aspects of her performance to the plaintiff's religious su- perior. The board stated that they could take action against the plaintiff but requested the superior to transfer the plaintiff to an- other school in exercise of the religious superior's powers. The plaintiff's superior held two meetings with the plaintiff con- cerning the board of management's dissat- isfaction. Subsequent to this meeting the plaintiff was informed that she was to be transferred to a school in Monaghan. The plaintiff claimed a mandatory injunction preventing the transfer from proceeding pending full consultation with her on the issue of her transfer. The plaintiff stated on affidavit that while the dissatisfaction with her was discussed in her meeting with her religious superior, no mention was made of the plaintiff's relocation to another school. Her superior stated that such discussion had taken place. On the plaintiff's applica- tion for an interlocutory mandatory injunc- tion HELD by Murphy J refusing the relief: (1) while on an interlocutory application it was not necessary to decide whether the plaintiff could succeed in her claim, there was great difficulty for her in sustaining her action, since the issue of fact as to whether her transfer was discussed was likely to be resolved in favour of the plaintiff's religious superior, and it was unlikely that manda- tory relief would be granted to restrain an action which could be remedied merely by holding an interview; (2) while any action by the board of management would, as it had acknowleged, require compl iance with the rules of natural and constitutional jus- tice, there was no authority for the proposi- tion that these rules applied to a decision made by a religious superior in relation to his or her community; the decisions of a religious superior were not necessarily made to ascertain truth but might also be made to inculcate humility or to advance the inter- ests of the religious order, whereas a lay tribunal was required to ascertain truth and vindicate rights; and, without expressing a final view on the matter, the power of a religious superior appeared to be absolute or virtually absolute, the vow of obedience being a converse of that power; (3) it was

'USUAL TERMS AND CONDITIONS' - WHETHER BANK ENTITLED TO CHARGE COMPOUND INTER- EST AND TO CAPITALISE OVERDRAFT - INTERPRETA- TION OF CONTRACT The defendant entered into an agreement with the plaintiff bank in 1983, in which the bank furnished the defendant with a current account overdraft facility of £5,000. On 11 August 1983, the defendant signed an ap- plication form which stated that 'charges may be made on this account, at a scale that the bank may from time to time decide.' On 23 August, the bank sent the defendant a letter stating that the overdraft was 'on the usual terms and conditions including inter- est repayable on demand.' On that date, the defendant had already drawn a cheque of over £4,000 on the account. In September 1983, the defendant obtained a further loan of £2,000 from the bank. On the defend- ant's default on the loans, the bank insti- tuted proceedings claiming it was entitled, under the terms of the agreement, to com- pound interest annually and also to charge a default rate of interest of 6% over its normal rates for overdrawn current ac- counts. On the bank's calculations, the amount due in July 1991 in respect of the £7,000 loans amounted to £32,906.01. HELD by Costello J: (1) the bank was not entitled, under the 11 August application form, to compound interest or to charge a default rate of interest, since the proposal referred to 'charges' and not to interest, and the bank was thus entitled to simple interest only; (2) the letter of 23 August could not be effective to impose any new terms on the agreement reached on 11 August, since the contract had largely been performed on that date; (3) the loan of 2,000 was subject to the letter of 23 August, but there was nothing in that letter which would allow the bank to compound interest annually or to a default rate of interest, since the courts lean against compound interest in the absence of special agreement; and accordingly the bank was entitled to a sum of 21,313.14. Passage in Paget's Law of Banking, 10th ed, p.247 approved. Hourigan v Kelly and Ors High Court 26 April 1991 CRIMINAL LAW - FIREARMS - SHOTGUN LICENCE - REVOCATION - FAIR PROCEDURES - BASIS FOR REVOCATION NOT PUT TO LICENCE HOLDER - FIREARM IN POSSESSION OF GARDAI - Firearms Act 1925, s.5 The applicant, a farmer, had held a shotgun licence under the 1925 Act. In 1990, he was involved in an incident with a neigh- bour. No assault had taken place and no firearms had been involved, but the Gardai requested both parties to surrender their shotguns with a view to their licences being revoked and both parties complied with this request. The first respondent revoked the applicant's licence based in part on a report of the incident. He also had regard to

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