Attorney-General v Whelan: 20 Dec 1933

(Court of Criminal Appeal – Ireland) The appellant had been tried as part of a conspiracy to steal and to receive stolen good. He was acquitted of the conspiracy, but now appealed against his conviction for theft despite his assertion that he acted only under coercion.
Held: He was acquitted: ‘ It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats. ‘

Murnaghan J
[1934] IR 518, [1933] IEHC 1
Bailii
England and Wales
Citing:
CitedOldcastle’s Case 1419
In a case of treason immediate fear of death can be a justification. . .
CitedAlexander MacGrowther’s Case 1746
In the rule that necessity might be a defence to a criminal charge, the distinction was drawn between threats directed against the person and threats upon property. ‘The only force that doth excuse is a force upon the person, and present fear of . .
CitedRex v Stratton 1779
It was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. The rule could be extended to cases of treason upon a general principle that it could to be extended . .

Cited by:
CitedHasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .

Lists of cited by and citing cases may be incomplete.

Crime

Updated: 25 November 2021; Ref: scu.223665

Dundon v The Governor of Cloverhill Prison: 19 Dec 2005

(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his request, the High Court made an order for his surrender. On 16 March 2005, thus following a significant further delay, the Supreme Court dismissed his appeal. He forthwith issued fresh proceedings in which, by reference to his rights under the Irish Constitution, he challenged the lawfulness of his continued detention after the expiry of 60 days following his arrest. Ireland had transposed the Decision into its law by the European Arrest Warrant Act 2003.
Held: Section 16(10) did not automatically entitle the appellant to release on the expiry of 60 days (nor, by analogy, did section 16(11) have that effect on the expiry of 90 days) from the date of his arrest. The terms of section 10 of the Irish Act provided: ‘Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
(a) against whom that state intends to bring proceedings for the offence to which the . . warrant relates, or
(b) . . that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.’ The appellant argued that, even if the terms of section 16(10) and (11) of that Act were not strong enough to secure the success of his appeal, the effect of section 10 was to bring the whole of the Decision into Irish law and that an overall reading of the Decision entitled him to release, and that, whereas section 16(10) and (11) place time limits of 60 and 90 days on the making only of the decision by the High Court, Article 17(3) and (4) of the Decision requires that the ‘final’ decision be made within those limits; and, by reference thereto, he appears also to have relied upon the significant further delay between the making of the order for his surrender and the hearing of his appeal. The terms of section 10 of the Irish Act required the Court to appraise the Decision in detail. Denham J described the time limits of 60 days and 90 days in Article 17(3) and (4) of the Decision as ‘exhortation’; and Geoghegan J explained that they were set ‘with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases’..

Murray CJ, Denham J, Hardiman J. Geoghegan J, Fennelly J
[2006] 1 IR 518, [2005] IESC 83, [2006] 1 ILRM 321
Bailii
Council Framework Decision of 13th June 2002
Cited by:
ApprovedFrench v Public Prosecutor of The Central Department of Investigation and Prosecution In Lisbon Portugal PC 13-Jun-2013
(Gibraltar) Mr French appealed against refusal of his request to have set aside an order for his extradition under a European Arrest Warrant. He argued that (in general) the court had failed to deal with the matter within the mandatory time limits. . .

Lists of cited by and citing cases may be incomplete.

Ireland, Extradition, European

Updated: 14 November 2021; Ref: scu.510851

Bell v Great Northern Railway Co of Ireland: 1890

The plaintiff was a passenger in a railway carriage which ran backwards downhill in terrifying circumstances. Medical witnesses testified that she was suffering from fright and nervous shock, one of them describing it as ‘profound impression on the nervious system’ and stating that the shock from which she suffered would be a natural consequence of the fright. Another said he was unable to detect any physical damage, and put down her symptoms to nervous shock.
Held: She succeeded. The negligent management by the defendants of the carriage in which she was seated was admittedly the cause of the injury she sustained. Murphy J said: ‘It appears . . immaterial whether the injuries may be called nervous shock, brain disturbance, mental shock, or bodily injury.’ She was awarded damages for her ‘nervous shock,’ although she had suffered no physical damage in the accident.

Murphy J
(1890) 26 LR Ir 428

Damages, Ireland

Leading Case

Updated: 02 November 2021; Ref: scu.464276

Vandeleur v Sloane: 1919

[1919] IR 116
England and Wales
Cited by:
CitedJ A Pye and Another v Graham and Another ChD 14-Mar-2000
The fact alone of being prepared to take a licence of land would not defeat an application for adverse possession, but a request for a licence would be relevant. The adverse possession commenced from the time when the licence expired, given that a . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 September 2021; Ref: scu.258605

Re Holidair Ltd: 1994

(Supreme Court of Ireland) The court considered whether a debenture created a floating charge over its book debts: ‘I am satisfied, accordingly, that the correct construction of the clause is that the trustee had a discretion to determine into what company account with what bank the proceeds of book debts should be paid from time to time. But there is no restriction in the clause on the companies drawing the monies out of these accounts. Accordingly, there is nothing in it to prevent the companies from using the proceeds of the book debts in the normal way for the purpose of carrying on their business. By reason of this the charge has also the third characteristic referred to by Romer LJ in his judgment in the case of In re Yorkshire Woolcombers’ Association Ltd and is accordingly a floating charge and not a fixed charge.’
Blaney J
[1994] 1 ILRM 481
England and Wales
Cited by:
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

These lists may be incomplete.
Updated: 20 February 2021; Ref: scu.228302

Attorney-General for Ireland v Jameson: CA 1905

The court was asked as to the valuation of shares. The shares were subject to restrictions on transfer.
Held: The price which the shares would fetch if sold on the open market should reflect the terms on which the purchaser would be entitled to be registered.
Holmes LJ said: ‘The Attorney-General and the defendants agree in saying that in this case there cannot be an actual sale in open market. Therefore, argues the former, we must assume that there is no restriction of any kind on the disposition of the shares and estimate that (sic) would be given therefore by a purchaser who upon registration would have complete control over them. My objection to this mode of ascertaining the value is that the property bought in the imaginary sale would be a different property from that which Henry Jameson held at the time of his death. The defendants, on the other hand, contend that the only sale possible is a sale at which the highest price would be andpound;100 per share, and that this ought to be estimated value. My objection is that this estimate is not based on a sale in open market as required by the Act. Being unable to accept either solution, I go back to my own, which is in strict accordance with the language of the section. I assume that there is such a sale of the shares as is contemplated by article 11, the effect of which would be to place the purchaser in the same position as that occupied by Henry Jameson.’
Fitzgibbon LJ said: ‘The price was to be that which a purchaser would pay for the right ‘to stand in Henry Jameson’s shoes,’ with good title to get into them and remain in them, and receive all the profits, subject to all the liabilities, of the position. The price was what the shares were worth to Henry Jameson.’
Holmes, Fitzgibbon LJJ
[1905] 2 IR 218
Finance Act 1894
Cited by:
CitedGrays Timber Products Ltd v Revenue and Customs SC 3-Feb-2010
An assessment to income tax had been raised after the employee resold shares in the company issued through the employees’ share scheme at a price which the Revenue said was above the share value. The company appealed against a finding that tax was . .
[2010] UKSC 4, Times 04-Feb-10, UKSC 2009/0044, [2010] WLR (D) 21, [2010] STI 393, [2010] 2 All ER 1, 2010 GWD 8-145, [2010] BTC 112, [2010] STC 782

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.396596

Alexander E Hall and Co v Mackenna: PC 1923

Viscount Haldane discussed the status of the Privy Council: ‘The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African body, or, for the future, an Irish Free State body . . I mention that for the purpose of bringing out the fact that the Judicial Committee of the Privy Council is not a body, strictly speaking, with any location. The Sovereign is everywhere throughout the Empire in the contemplation of the law.’
Viscount Haldane
[1923] IR 402
Cited by:
CitedSeaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .
[2009] UKPC 26, Times 10-Jul-09, [2009] 4 Costs LR 607, [2010] 1 WLR 312

These lists may be incomplete.
Updated: 14 December 2020; Ref: scu.375967

Murphy v The County Council of Wexford: 1921

(Eire)
[1921] 2 Ir R 230
Cited by:
CitedPhilips v Ward CA 1956
The Plaintiff had relied on a negligent survey to purchase a substantial Elizabethan property and land. The report did not mention that the timbers of the house were badly affected by death watch beetle and worm so that the only course left to him . .
[1956] 1 WLR 471, [1956] 1 All ER 874

These lists may be incomplete.
Updated: 13 December 2020; Ref: scu.259570

In re Cochrane: 1905

(Ireland) ‘as in these questions of revenue, matters of mere conveyancing form are immaterial; as we are to view the substance only of the transaction, and as ‘gift’ in the context means ‘beneficial gift,’ so, too, in the actual case before us, should it be held that the reservation of the ultimate trust to Sir Henry Cochrane cannot, per se . . render the entire capital subject to duty.’
Palles CB
[1905] 2 IR 626
Cited by:

  • Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998
    To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
    Held: The lease-back by the nominee was not void as . .
    [1998] UKHL 47, [2001] AC 293, [[1999] 1 All ER 297, [1999] 2 WLR 90, (1999) STC 37

These lists may be incomplete.
Updated: 10 December 2020; Ref: scu.223776

Re Cochrane: 1905

(High Court of Ireland) The court considered the effectivenmess of a gift with a reservation to the donor, distinguishing Earl Grey: ‘The limitation of this annuity, although prior to the gift, was, as well as being charged on the land, secured by the personal covenant of the grantee, and this covenant, according to The Attorney-General v Worrall [1895] 1 QB 99, made its subject-matter a reservation of the gift within the meaning of [the statute]; and therefore, even if Lord Halsbury’s words, ‘The settlement itself has reserved andpound;4,000 a year’ mean, as they probably do, ‘reserved out of the gift’ they are in no sense contrary to our present decision. The law made it a reservation out of the gift by reason of the personal covenant.’ Without a covenant to pay it the reservation of a rentcharge is not in itself a benefit reserved out of the property given but is merely property not given. The trust of surplus income and the ultimate contingent trust of corpus were expressly retained by the donor for himself on the face of the instrument, and never in any shape or form included in what he gave.
Palles CB
[1905] 2 IR 626
Citing:

  • Appealed to – Re Cochrane CA 1906
    (Court of Appeal of Ireland) The court considered the effectivenmess of a gift with a reservation to the donor. As to the Earl Grey case, if ever there was a case to which the statute applied it was The Attorney-General v Grey. The court referred to . .
    [1906] 2 IR 200
  • Distinguished – Grey (Earl) v Attorney General HL 1900
    The donor conveyed land to his son by way of gift but reserved an annual rentcharge during his life which was charged on the land conveyed and which his son covenanted to pay (together with the other liabilities of the donor), and retained the right . .
    [1900] AC 124

Cited by:

  • Appeal from – Re Cochrane CA 1906
    (Court of Appeal of Ireland) The court considered the effectivenmess of a gift with a reservation to the donor. As to the Earl Grey case, if ever there was a case to which the statute applied it was The Attorney-General v Grey. The court referred to . .
    [1906] 2 IR 200
  • Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
    The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
    Held: . .
    Times 11-Sep-97, Gazette 10-Sep-97, [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234
  • Cited – In re Nichols, deceased CA 2-Jan-1975
    The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
    Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .
    [1975] 1 WLR 534

These lists may be incomplete.
Updated: 10 December 2020; Ref: scu.223760

Cooke v Midland Great Western Railway of Ireland: HL 1909

Lord Atkinson said: ‘The duty the owner of premises owes to the persons to whom he gives permission to enter upon them must . . be measured, by his knowledge, actual or imputed, of the habits, capacities and propensities of those persons.’ and ‘The authorities from Lynch v Nurdin [1841] EngR 52; (1841) 1 QB 29 downwards establish, it would appear to me, first, that every person must be taken to know that young children and boys are of a very inquisitive and frequently mischievous disposition, and are likely to meddle with whatever happens to come within their reach; secondly, that public streets, roads and public places may not unlikely be frequented by children of tender years and boys of this character.’
Lord Atkinson
[1909] AC 229 HL(I), [1908-10] All ER 16
England and Wales
Citing:

  • Cited – Lynch v Nurdin 1841
    The defendant’s servant left his cart and horse on a street where children were playing. A child climbed on the wheel of the cart, other children disturbed the horse, and the child was injured.
    Held: The judge had correctly left it to the jury . .
    (1841) 1 QB 29, (1841) Arn and H 158, (1841) 113 ER 1041, [1841] EngR 52

Cited by:

  • Cited – British Railways Board v Herrington HL 16-Feb-1972
    Land-owner’s Possible Duty to Trespassers
    The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
    Held: Whilst a land-owner owes no general duty of care to a . .
    [1972] AC 877, [1972] 2 WLR 537, [1971] 1 All ER 749, [1972] UKHL 1

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.180941

Thomas Amory v Henry Luttrell: PC 5 Apr 1710

Lands of andpound;353 per ann. were devised in trust for the sole and separate use of K during the joint lives of herself and her husband ; the husband being afterwards outlawed for high treason, these lands became forfeited, and were granted by the crown to S. his brother, subject to all legal and just incumbrances. S having withheld the rents of these lands from K whereby she was reduced to great necessity, she was prevailed upon to release the same to S, in consideration of andpound;100 paid down, (though the arrears amounted to andpound;200) and an annuity of andpound;1200 per ann. during the joint lives of herself and her husband. But this release was set aside as fraudulent, and S. decreed to account, for the whole rents and profits.
(1709) 2 ER 108, [1710] EngR 45, (1710) 4 Bro PC 159, (1710) 2 ER 108
Commonlii, Commonlii

Updated: 07 December 2020; Ref: scu.391775

C and A Modes v C and A (Waterford) Ltd: 1978

(Supreme Court of Ireland) The plaintiff’s C and A department store in Belfast was entitled to mount a claim in passing off in the Irish Republic.
Henchy J was unhappy about the decision in Alain Bernardin, and said that there were in the Irish Republic ‘sufficient customers of [the] plaintiff’s business [in Belfast] to justify his claim’.
Kenny J rejected the argument that a passing off claim ‘should be limited to cases where the plaintiff had acquired some of its goodwill in the Republic by user or trading in this country’, and pointed out that the plaintiff in that case had customers in the Republic, where it had ‘carried out extensive advertising on television and radio and in the newspapers’. He also said that the decision in Alain Bernardin was wrong.
O’Higgins CJ, Henchy, Kenny JJ
[1978] FSR 126
Ireland
Citing:

  • Disapproved – Alain Bernardin and Cie v Pavilion Properties Ltd ChD 1967
    The owner of the Crazy Horse Saloon in Paris tried to stop a business in London under the same name. The plaintiff advertised in the UK but carried on no other activities here.
    Held: An injunction was refused. The plaintiff had reputation but . .
    [1967] RPC 581

Cited by:

  • Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
    The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
    [2015] ETMR 31, [2015] ECC 19, [2015] UKSC 31, [2015] WLR(D) 229, [2015] 1 WLR 2628, [2015] 3 All ER 469, [2015] FSR 29,#, UKSC 2013/0274

These lists may be incomplete.
Updated: 01 December 2020; Ref: scu.566010

O’Brien v Eason: 1913

(Ireland) Where comments of an alleged defamatory character were made upon an association called the Ancient Order of Hibernians, an individual member of the Order, who was not named nor in any way referred to, could not maintain an action of libel.
References: [1913] 47 Irish LT 266
Judges: Holmes LJ and Cherry LJ

Last Update: 27 November 2020; Ref: scu.463692

Attorney-General v Whelan; 20 Dec 1933

References: [1934] IR 518, [1933] IEHC 1
Links: Bailii
Coram: Murnaghan J
Ratio:(Court of Criminal Appeal – Ireland) The appellant had been tried as part of a conspiracy to steal and to receive stolen good. He was acquitted of the conspiracy, but now appealed against his conviction for theft despite his assertion that he acted only under coercion.
Held: He was acquitted: ‘ It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats. ‘
This case cites:

  • Cited – Oldcastle’s Case
    In a case of treason immediate fear of death can be a justification. . .
  • Cited – Alexander MacGrowther’s Case ([1746] Fost 13, Commonlii, [1746] EngR 782, (1746) Fost 13, (1746) 168 ER 8)
    In the rule that necessity might be a defence to a criminal charge, the distinction was drawn between threats directed against the person and threats upon property. ‘The only force that doth excuse is a force upon the person, and present fear of . .
  • Cited – Rex -v- Stratton ((1779) 21 How St Tr 1045)
    It was just possible to imagine cases in which the expediency of breaking the law was so overwhelming that people might be justified in breaking it. The rule could be extended to cases of treason upon a general principle that it could to be extended . .

(This list may be incomplete)
This case is cited by:

  • Cited – Hasan, Regina -v- HL (Bailii, [2005] UKHL 22, Times 21-Mar-05, House of Lords)
    The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .

(This list may be incomplete)

Last Update: 09-Jun-16
Ref: 223665

Dundon v The Governor of Cloverhill Prison; 19 Dec 2005

References: [2006] 1 IR 518, [2005] IESC 83, [2006] 1 ILRM 321
Links: Bailii
Coram: Murray CJ, Denham J, Hardiman J. Geoghegan J, Fennelly J
(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his request, the High Court made an order for his surrender. On 16 March 2005, thus following a significant further delay, the Supreme Court dismissed his appeal. He forthwith issued fresh proceedings in which, by reference to his rights under the Irish Constitution, he challenged the lawfulness of his continued detention after the expiry of 60 days following his arrest. Ireland had transposed the Decision into its law by the European Arrest Warrant Act 2003.
Held: Section 16(10) did not automatically entitle the appellant to release on the expiry of 60 days (nor, by analogy, did section 16(11) have that effect on the expiry of 90 days) from the date of his arrest. The terms of section 10 of the Irish Act provided: ‘Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person –
(a) against whom that state intends to bring proceedings for the offence to which the . . warrant relates, or
(b) . . that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision be arrested and surrendered to the issuing state.’ The appellant argued that, even if the terms of section 16(10) and (11) of that Act were not strong enough to secure the success of his appeal, the effect of section 10 was to bring the whole of the Decision into Irish law and that an overall reading of the Decision entitled him to release, and that, whereas section 16(10) and (11) place time limits of 60 and 90 days on the making only of the decision by the High Court, Article 17(3) and (4) of the Decision requires that the ‘final’ decision be made within those limits; and, by reference thereto, he appears also to have relied upon the significant further delay between the making of the order for his surrender and the hearing of his appeal. The terms of section 10 of the Irish Act required the Court to appraise the Decision in detail. Denham J described the time limits of 60 days and 90 days in Article 17(3) and (4) of the Decision as ‘exhortation’; and Geoghegan J explained that they were set ‘with a view to internal discipline within the member states and not with a view to conferring individual rights in individual cases’..
Statutes: Council Framework Decision of 13th June 2002
This case is cited by: