The Gazette 1993

GAZETTE

APRIL 1993

Recent Irish Cases Complied fay Raymond Byrna, BCL, LLM, BL, Lecturer In Law, Dublin City University. The following case summaries have been reprinted from the Irish Law Times and Sollcltora Journal with the kind permission of the publishers

sion of the Oireachtas to propose an amend- ment to the Constitution contained in the Eleventh Amendment Bill. Wireless Dealers Association vMinister for Industry and Com- merce (Supreme Court, 14 March 1956) and Finn v Attorney General [1983] IR 154 applied. Per McCarthy J (concurring): the plaintiffs had been able fully to avail of their right of access to the courts since the High Court and the Supreme Court had not con- fined themselves to the question of whether leave to serve notice of application during the Vacation should be granted. [Note: the proposal to amend the Constitution, con- tained in the Eleventh Amendment Bill, was approved by referendum held on 18 June 1992, and accordingly the Bill was signed by the President as the Eleventh Amend- ment of the Constititon Act 1992. In re Wogan's (Drogheda) Ltd; Jenkins v Hill Samuel Bank Ltd Supreme Court 10 April 1992 CONTRACT - INTERPRETATION - WHETHER CON- DUCT AFTER MAKING OF CONTRACT MAY BEUSED TO INDICATE INTENTION OF PARTIES - COMPANY - CHARGE - WHETHER FIXED OR FLOATING - CHARGE OVER BOOK DEBTS - CREATION OF SPE- CIAL BANK ACCOUNT FOR RECEIPTS FROM BOOK DEBTS ENVISAGED IN DEBENTURE CREATING CHARGE - SPECIAL BANK ACCOUNT NOT CREATED IMMEDIATELY - WHETHER FAILURE TO CREATEMAY BE INTERPRETED AS INTENTION NOT TO CREATE FIXED CHARGE The bank held a debenture from the com- pany which created a charge over the book debts of the company. The debenture in- cluded a clause which provided that the bank, as lender, might designate a bank account into which receipts from book debts would be deposited by the company and over which the bank would have specified rights of control. In the High Court, the applicant examiner of the company sought a declaration that the debenture had not created a fixed charge over the company's assets. Denham J heard evidence to indicate that the special account referred to in the debenture had not been established at the time that the company was placed into examinership. She therefore concluded that the debenture had created a floating charge only. On appeal by the bank HELD by the Supreme Court (Finlay CJ, Hederman, McCarthy, O'Flaherty and Egan JJ allowing the appeal: (1) it was an important principle for the interpretation of all contracts that it was not legitimate to use as an aid in the construction of a contract anything said or done by the parties after the contract was made, and to depart from this principle would be likely to cause considerable mis- chief; and accordingly the trial judge had erred in admitting evidence as to whether a special account had been created after the debenture had been given by the company

McKenna v An Taoiseach and Ors High Court, 8 June 1992 CONSTITUTION - JUSTICIABLE CONTROVERSY - REFERENDUM - TREATY ON EUROPEAN UNION WHETHER GOVERNMENT ENGAGED IN PARTISAN CAMPAIGN - WHETHER ISSUE JUSTICIABLE WHETHER OBLIGATION ON GOVERNMENT TO FUND CAMPAIGN AGAINST GOVERNMENT VIEW ON REFERENDUM-WHETHER GOVERNMENT CAM- PAIGN IN BREACH OF ANY CONSTITUTIONAL RIGHTS - Constitution, Article 40.3, 40.6.1 .i - Treaty on European Union The plaintiff, a citizen and member of a political party, sought injunctive relief con- cerning the manner in which the govern- ment was conducting its referendum cam- paign seeking to amend Article 29.4.3 to enable it to ratify the Treaty on European Union, which had been signed by the gov- ernments of the member States of the Euro- pean Communities at Maastricht in Febru- ary 1992. The plaintiff argued that the gov- ernment was acting in breach of the Consti- tution by conducting a partisan campaign in favour of the Treaty; that it was obliged in such circumstances to provide funding for a 'no' campaign; that it was misleading the public on the contents and effects of the Treaty; and that the government had in- fringed the plaintiff's constitutional rights, inter alia, to express freely her convictions and opinions. Since the referendum was due to be HELD on 18 June 1992, the plaintiff's application for interlocutory relief was treated as if it was the trial of the action. HELD by Costello J dismissing the claim for relief: (1) although the plaintiff had a griev- ance that, as a person involved in a small political party opposed to the government's campaign, her campaign would be deprived of the benefits which the government had conferred on itself from public funds, such grievance was in the political and non- justiciable sphere and the judiciary was not empowered by the Constitution to remedy such a grievance since to do so would weaken the judicial role; and since the plaintiff's complaint was one of political misconduct (on which the Court would express no view) she had failed to establish any constitutional impropriety; (2) it was also inappropriate for the Court to express any view on the plaintiff's specific com- plaint that the government's 'Short Guide to the Maastricht Treaty' was misleading, since this complaint was the staple of political debate and not amatter on which the courts should adjudicate; (3) the plaintiff had not established that she had a constitutional right to oblige the government to act in accordance with the Constitution; (4) even if the plaintiff could establish that the gov- ernment's campaign had rendered less ef- fective the communications she wished to make to fellow citizens, this did not involve any i nfri ngement of her constitutional ly pro-

tected right to communicate, nor did it deprive her of her right to have equality of voting in the referendum vote. Per Costello J: although the motion for interlocutory re- lief was determined as if it had been the trial of the action, interlocutory relief would have been refused on the same basis. Slattery and Ors v An Taoiseach and Ors High Court, 8 June 1992; Supreme Court, 18 June 1992 CONSTITUTION - REFERENDUM - INJUNCTION TO RESTRAIN HOLDING OF REFERENDUM - SEPARA- TION OF POWERS - WHETHER COURTS HAVING ANY ROLE IN LEGISLATIVE PROCESS - Constitution, Article 6 - Eleventh Amendment of the Constitution Bill 1992 - Treaty on European Union The plaintiff instituted proceedings for an injunction to prevent the holding of a refer- endum seeking to amend Article 29.4.3 in order to al low the State to ratify the Treaty on European Union, signed by the govern- ments of the member States of the European Communities at Maastricht in February 1992. The plaintiffs argued that the government had failed to provide the citizens of the State with sufficient information on the Treaty which would enable them to cast their votes in the referendum in an informed manner. The Bill containing the text of the proposed amendments to Article 29.4.3, the Eleventh Amendment Bill, had been published in April 1992. The plaintiff instituted proceed- ings on 5 June 1992, three days after a referendum on the Treaty in Denmark had been defeated. The date fixed for the refer- endum in Ireland was 18 June. The plaintiffs sought leave to serve notice of application for interlocutory relief during the Trinity Vacation, which commenced on 5 June and was to end on 17 June. HELD by Costello J: (1) the plaintiffs had not made out a case for obtaining leave to serve notice of applica- tion during the Vacation, there being no valid reason why they had not instituted proceedings prior to 5 June; (2) in any event, leave would be refused on the ground that the plaintiffs were unlikely to succeed in obtai ni ng any rel ief at the i nterlocutory stage. McKenna v An Taoiseach and Ors (High Court, 8 June 1992)(supra) applied. On ap- peal by the plaintiffs HELD by the Supreme Court (Hederman, McCarthy and Egan JJ) dismissing the appeal: to grant the plaintiffs interlocutory relief on the ground that the government had failed to provide informa- tion on the effects of the Treaty on European Union would be a wholly unwarranted in- trusion by the courts into the legislative domain provided for under the Constitu- tion, by which the Oireachtas has the sole power to set in train the procedure for amending the Constitution; and the plain- tiffs had not made out any case that the government had acted in breach of the Constitution in carrying through the deci-

1