McMahon J

Murphy & Ors -v- Gowan Distributors – Personal guarantees, arrears of rent, set-off

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Murphy & Ors -v- Gowan Distributors [2011] IEHC 126 (McMahon J, 5 April 2011)

HIgh Court holds: i. that guarantors of liquidated company were personally liable for its arrears of rent to landlord company, and that landlord company was not guilty of bad faith or misrepresentation; ii. that landlord company was entitled to set-off against moneys owed to said guarantors in their capacity as head lessors; iii. that company was not entitled to set-off against outside investors who co-owned premises with head lessors. (Full text.)

Claim against company for arrears of rent – claim by company on personal guarantees – whether rents properly due – car dealership – whether dealership arrangement terminated – whether company acted in bad faith or made misrepresentations – whether limitation on liability of guarantors – whether company entitled to set-off against outside investors.

Little -v- Financial Services Ombudsman – Appeal, extension of time

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Little -v- Financial Services Ombudsman [2011] IEHC 137 (McMahon J, 11 March 2011)

High Court extends time to bring appeal against decision of Financial Services Ombudsman, where patent error in decision. (Full text.)

Appeal against decision of Financial Services Ombudsman – application to extend time – s 57CL(3), Central Bank Act 1942 – appeal outside 21-day time limit – whether mistake on part of applicant – whether prejudice to ombudsman in extending time – functions and powers of ombudsman – patent error in ombudsman’s decision – role of ombudsman as “consumer’s champion”.

Eire Continental Trading Co., Ltd. v. Clonmel Foods, Ltd. [1955] I.R. 170
Brewer v. Commissioner of Public Works [2003] 3 I.R. 539
Square Capital Limited v. Financial Services Ombudsman [2009] IEHC 407

Delany -v- Judge Ó Buachalla; Judicial review, conviction of drunk driving.

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Delany -v- Judge Ó Buachalla [2011] IEHC 138 (McMahon J, 24 March 2011)

High Court refuses judicial review of District Court conviction of drink driving, where date on charge sheet was incorrect and judge refused to grant direction. (Full text.)

Judicial review – District Court conviction – drink driving – failure to grant direction – submission that there was no evidence of the accused driving on date on summons – failure to give reasons – whether within jurisdiction – alternative remedy – decision-making process – whether court “fell into unconstitutionality” – bias – adequacy of reasons – whether the fact that the date on the charge sheet was incorrect affected the fairness of the trial.

Director of Public Prosecutions v. Cunniffe(Unreported, High Court, Ó Caoimh J., 10th February, 2003)

Grodzicka v. Ní Chondúin[2009] IEHC 475, (Unreported, High Court, Dunne J., 30th October, 2009)

Lennon v. District Judge Clifford[1992] 1 I.R. 382

Doyle v. Judge Connellan & Anor.[2010] IEHC 287

Truloc Ltd. v. District Judge MacMenamin[1994] 1 I.L.R.M. 151

Sweeney v. Brophy[1993] 2 I.R. 202

Buckley v. Kirby[2000] 3 I.R. 431

Chief Constable v. Evans[1982] 1 W.L.R. 1155

The State (Holland) v. Kennedy[1977] I.R. 193

Dublin Wellwoman Centre Ltd. v. Ireland[1995] 1 I.L.R.M. 408

Fogarty v. Judge O’Donnell[2008] IEHC 198

O’Mahony v. Ballagh[2002] 2 I.R. 410

Kenny v. Judge Coughlan[2008] IEHC 28

Sisk v. Judge O’Neill[2010] IEHC 96

Lyndon v. Collins[2007] IEHC 487

D. P. P. -v- Judge Hunt, Hybrid offence, return for trial

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D. P. P. -v- Judge Hunt [2011] IEHC 56 (McMahon J, 18 February 2011)

High Court grants judicial review of refusal of Circuit Court judge to make order in respect of person accused of “hybrid offence”, and declaring that Circuit Court should deal with matter on foot of existing return for trial. (Click here for full text of judgment.)

Judicial review – hybrid offence – return for trial – exercise of discretion to refuse summary jurisdiction – Circuit Court judge refuses jurisdiction on grounds that accused not properly sent forward – whether Circuit Court should deal with matter on foot of existing return for trial – whether charge was “hybrid offence” – whether District Court had directed trial on indictment.

Reade v. District Judge Reilly and the Director of Public Prosecutions [2009] 2 I.L.R.M. 467

Gormley v. District Judge Smyth and the Director of Public Prosecutions [2010] IESC 5

Kelly v. The Director of Public Prosecutions [1996] 2 I.R. 596

Dillon v. Judge McHugh, the Director of Public Prosecutions and the Judges of the Dublin Circuit Criminal Court (Unreported, High Court, Kearns J., 14th January, 2011)

Brady v. Judge Fulham and Director of Public Prosecutions [2010] IEHC 99, (Unreported, High Court, 26th March, 2010)

Release Speech Therapy Ltd -v- H. S. E., Judicial review of refusal of state contract

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Release Speech Therapy Ltd -v- H. S. E. [2011] IEHC 57 (McMahon J, 18 February 2011)

High Court refuses judicial review of decision to award tender, on grounds that the respondent was entitled to conclude that the applicant was not qualified. (Click here for text of judgment.)

Judicial review – decision not to award contract for speech and language therapy services – sole tenderer – Council Directive 2004/18/EC – whether applicant disqualified on grounds of providing only group therapy – applicant indicated at interview refusal to provide individual therapy – whether certiorari appropriate.

Commission v. Ireland (C-226/09)

Wall A.G. (Case C 91/08)

SIAC Construction Ltd. v. County Council of the County of Mayo (Case C-19/00) [2001] E.C.R. 1-7725

The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R. 381

Sharon Howard v. District Judge William Early & Director of Public Prosecutions (Unreported, Supreme Court, 4th July, 2000)

Joyce (a minor) v. Watkin [2007] 3 I.R. 510

 

Murphy [Nee Condon] -v- Roche, Personal injuries, assessment of damages

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Murphy [Nee Condon] -v- Roche [2011] IEHC 35 (McMahon J, 26 January 2011)

High Court grants plaintiff €212,608 in damages for personal injury, including €55,692 for loss of future earnings.

Personal injuries – soft tissue – loss of earnings – anxiety concerning pregnancy – whether previous accidents relevant to claim – assessment of damages – future loss of earnings.

Hanrahan -v- Minister For Agriculture, Fisheries And Food, Breach of contract, failure of government department to return property

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Hanrahan -v- Minister For Agriculture, Fisheries And Food [2010] IEHC 442 (McMahon J, 26 November 2010)

High Court awards plaintiff €304,320 arising from the failure of the defendants to return his livestock pursuant to an agreement.

Assessment of damages – breach of contract – compensation of plaintiff for failure to return livestock – losses incurred because of delay in determination of legal dispute – loss of profits – “consequential losses” – loss of income from milk from seized cattle – value of animals not returned – cost of purchase of animals – double compensation – loss of farm waste management grant – loss of winter milk bonus – interest – stress, upset and inconvenience.

Hadley v Baxendale (1854) 9 Ex 341
Lennon v. Talbot Ireland Ltd (Unreported, High Court, 20th December 1985)
Lee v. Rowan (Unreported, High Court, 17th November, 1981,)
Grafton Ct. Limited v. Wadson Sales (Unreported, High Court, 17th February, 1975)
Hanrahan v. Merck Sharpe and Dohme (Ireland) Ltd. [1988] ILRM 629

K. -v- Commissioner of An Garda Síochána & Ors [2010] IEHC 460 (McMahon J, 17 December 2010)

By Mark Tottenham BL in McMahon J No Comments Tags: ,

Court dismisses plaintiff’s case on grounds that she failed to prove that force used by Gardai was disproportionate or unreasonable.

Arrest – custody – alleged assault by Garda – search of plaintiff and bag while in custody – plaintiff resists search – plaintiff restrained by a number of Gardai – plaintiff alleges she was kicked in leg – diabetes – Cushings disease leading to bruising – whether force used by Gardai disproportionate and unreasonable in the circumstances.

Victory & Anor -v- Galhoy Inns Ltd [2010] IEHC 459 (McMahon J, 16 December 2010)*

By Mark Tottenham BL in McMahon J No Comments Tags: , ,

Court finds defendants liable for nuisance and trespass but declines to grant injunction on grounds of acquiescence. Damages measured at €150,000. (Full text.)

Right of way – dominant tenement absorbed into larger property – whether right of way extended to larger property – extension of licensed premises – whether authorisation of servient tenement required to extend user of right of way – whether right of way “for all purposes” extended to use as emergency exit for persons on neighbouring premises – whether right of way permitted owners of dominant tenement to erect lights or dig trenches – whether acquiescence in changes to neighbouring property – whether injunction appropriate – measure of damages.

Harris v. Flower & Sons [1905] 74 L.J.Ch. 127

Peacock & Anor v. Custins & Anor [2002] 1 W.L.R. 1815
Macepark (Whittlebury) Limited v. Sargeant [2003] 2 P.C.R. 12
Shaw & Anor v. Applegate [1977] 1 W.L.R. 970
Wilmot v. Barber [1880] 15 Ch. D. 96
Electrolux Limited v. Electrix Limited [1954] 71 R.P.C. 23
Solomon v. The Red Bank Restaurant Limited [1938] I.R. 793;
Bracewell and Anor. v. Appleby [1975] 1. All E.R. 993
Bracewell v. Appleby [1975] 1 All E.R. 993
Wrotham Park Estate Company Limited v. Parkside Homes Limited [1974] 2 All E.R. 321, [1974] 1 W.L.R. 798
Conneran & O’Reilly v. Corbett & Sons Ltd [2006] IEHC 254

Walsh & Anor -v- Sligo County Council [2010] IEHC 437 (McMahon J, 20 December 2010)*

By Mark Tottenham BL in McMahon J No Comments Tags:

High Court refuses plaintiff’s claim and makes declaration that public right of way exists over the plaintiffs’ property.

Public rights of way – inferred or express dedication – user without force, secrecy or permission – whether user “as of right” – animus dedicandi – evidence as to user – permission v. acquiescence – obstructions at entrances – exceptions to hearsay rule – admissions – inclusion of right of way in county development plan – property owned by ward of court – expenditure of public monies on estate roadways – whether ward of court capable of dedicating rights of way.

Connell v. Porter (1972) [2005] 3 I.R. 601
Bruen. v. Murphy (Unreported, High Court, McWilliams J., 11th March, 1980)
Smeltzer v. Fingal County Council [1998] 1 I.R. 279
Murphy v. County Council of Wicklow (Unreported, Kearns J., High Court, 19th March, 1999)
Bland P., Easements, 2nd Ed., (Dublin, 2009) at pp. 459 et seq
Carroll v Sheridan and Sheehan [1984] I.L.R.M. 451
Dawes v Hawkins (1860) 8 CB (N.S.) 848
Regina (Godmanchester Town Council) v. Secretary of State for the Environment, Food and Rural Affairs [2007] 3 W.L.R. 85
Folkestone Corporation v. Brockman [1914] AC 338
Farquhar v. Newbury Rural District Council [1909] 1 Ch.12
R. v. Oxfordshire County Council, and Another, Ex. p.. Sunningwell P.C [2000] 1 A.C. 335
Davies v Stevens (1836) 7 C. & P. 570
Dawes v. Hawkins [1860] 8 C.B. (N. S.) 848

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