The Gazette 1994

GAZETTE

JULY 199*

He ld by Murphy J in dismissing the plaintiff's claim: (1) Where a tribunal is engaged in determining only a question of fact, it is not in itself a breach of natural or constitutional justice which would invalidate its decision for it to receive advice on a matter of law without inform- ing the parties as to the fact or nature of that advice. (2) The defendants' function was to determine, as a matter of fact, whether the allegations made against the plaintiff were well founded. Legal guid- ance was sought solely for the purpose of ensuring that they were acquainted with the requirements of natural and constitu- tional justice. Thus they were not re- quired to disclose it to the parties. (3) The defendants were not in the position of a disciplinary tribunal but instead were acting as an employer reviewing the con- duct of an employee. As such it was not incumbent upon them to enquire as to whether any further submissions were to be made in mitigation of the penalty. In any event, the plaintiff had been given ample opportunity to deal fully with the allegations made against him and the consequences which an adverse finding might have for him. (4) The criminal standard of proof was not applicable as the matter arose out of a civil claim between an employer and an employee. As in every civil action the matter fell to be determined on the balance of prob- abilities. Reported at [1994] 1 ILRM 58 * The People (Director of Public Prosecu- tions) v Rock: Supreme Court (FinlayCJ, O'Flaherty, Egan, Blayney and Denham JJ) 18 March 1993 Criminal Law - Larceny - Whether open to a court to convict on a charge of simple larceny where the evidence discloses an offence of larceny from the person or robbery - Whether simple larceny is an offence at common law - Larceny Act 7976, ss. 2, 14,23- Criminal Law (juris- diction) Act 1976, s. 5 Facts The accused had been charged with simple larceny contrary to s. 2 of the Larceny Act 1916. At the trial of the action, evidence was given which tended to disclose an offence of larceny from the person contrary to s. 14 of the Larceny Act 1916, or an offence of robbery con- trary to s. 23 of the Larceny Act 1916 as inserted by s. 5 of the Criminal Law (Jurisdiction) Act 1976. Counsel for the accused, submitted that it was not open to the court to find the accused guilty of simple larceny contrary to s. 2 of the Larceny Act 1916 where the evidence disclosed an offence provided for by the other provisions of the said Act. The trial judge accepted this submission and di-

rected the jury to enter a verdict in favour of the accused. The Director of Public Prosecutions, in the exercise of the pow- ers vested in him by the Criminal Proce- dure Act 1967 and the Prosecution of Offences Act 1974, then requested the Supreme Court to determine the follow- ing questions of law without prejudice to the verdict in favour of the accused: (1) Whether the trial judge was bound to follow the decision of the Court of Crimi- nal Appeal on the basis that it was a binding precedent upon him; and (2) Whether it is open to a court to enter a conviction against an accused on a charge of simple larceny where the evidence discloses that the larceny was larceny from the person or robbery. Held by the Supreme Court (O'Flaherty J; Finlay CJ, Egan, Blayney and Denham JJ concurring) in answering the questions posed in the affirmative, that: (1) S. 2 of the Larceny Act 1916 is a reference to what was the common law offence of simple larceny. Simple larceny, there- fore, is not an offence created by statute. (2) Thus, even if circumstances of aggra- vated larceny or robbery are forthcoming the prosecution is not precluded from laying the count in the indictment as contrary to s. 2 of the Larceny Act 1916. (The People (Attorney General) v Mills (1955) 1 Frewen 153 overruled). (3) There- fore, it is open to a court to enter a conviction agai nst an accused on a charge of simple larceny contrary to s. 2 of the Larceny Act 1916 even where the evi- dence discloses that the larceny was lar- ceny from the person or robbery, being offences punishable by the provisions of ss. 14 and 23 of the Larceny Act 1916 respectively. (4) The trial judgewas bound to follow the decision of the Court of Criminal Appeal if he considered that there was a conflict between it and a decision of the High Court since it was at the date of the trial a decision of a court of final jurisdiction, although it should now be overruled. Reported at [1994] 1 ILRM 66 Oblique Financial Services Ltd v The Promise Production Co. Ltd, Dennis Hall, Pen f i e ld Enterprises Ltd a nd John Mulcahy: High Court (Keane J) 24 Febru- ary 1993 Injunction - Interlocutory - Contract - Express term - Confidentiality - Plaintiff seeking to restrain publication pending hearing- Whether serious question to be tried - Whether obligation to respect confidentiality confined to parties to the contract - Whether right to publish pro- tected by Constitution - Balance of con- venience - jurisdiction of Courts and 8

Enforcement of Judgments (European Communities)Act 1988, s. 71 -Constitu- tion of Ireland 1937, Articles 40.6.1°, 40.3.1°. Facts The plaintiff was a company incor- porated in the United Kingdom engaged in organising financial support for film production. It entered into a contract with the first named defendant to finance a particular film, under the termsofwhich absolute confidentiality would be main- tained in relation to any information ob- tained by virtue of that agreement. The plaintiff complained that, in breach of the agreement, the first and second named defendants revealed the name of an in- vestor and the third and fourth named defendants intended to publish these dis- closures in Ireland. An interim injunction was granted restraining the third and fourth named defendants from publish- ing confidential information prior to the initiation of legal proceedings in the United Kingdom. The instant application for an interlocutory injunction was made by the plaintiff pursuant to s. 11 of the Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act 1988. The third and fourth named de- fendants claimed that they did not owe the plaintiff an obligation of confidence and that the grant of an interlocutory injunction would interfere with their con- stitutional right to freedom of expression under Article 40.6.1°. Held by Keane J in granting the interlocu- tory rel ief sought:(1) The i ntended use of confidential information by the third and fourth named defendants without the con- sent, express or implied, of the plaintiff was sufficient to establish that there was a serious question to be tried. House of Spring Gardens Ltd v Point Blank Ltd [1984] IR 611 applied.(2) An obligation to respect confidentiality which arises under a contract is not limited to those who are parties to the contract, but ex- tends to any third party to whom the information is communicated. (3) Free- dom to convey information is not pro- tected under Article 40.6.1 0 of the Con- stitution which deals with the formula- tion or publication of convictions or opin- ions, but rather by Article 40.3.1°. Attor- ney General v Paperlink Ltd [1984] ILRM 373 applied. Furthermore, such a right is not absolute but can be qualified by other legal constraints such as the right to con- fidentiality. (4) Whilst the damage, if any, suffered by the third and fourth named defendants through their inability to pub- lish the information was necessarily hard to quantify, this was insufficient to pre- vent the imposition of an interlocutory injunction, since the balance of conven- ience clearly lay with the plaintiff.

Reported at [1994] 1 ILRM 74