The Court of Appeal has re-sentenced a man for seventy-five counts of theft contrary to s.26 of the Criminal Justice (Theft and Fraud Offences) Act 2001, amending his sentence from a custodial sentence of two years and six months, and suspending the final ten months for a period of two years from the date of his release, on condition that he enter into a bond in the sum of €100 to keep the peace and be of good behaviour.
9 March 2016
The UK Supreme Court has dismissed the appeal of a company which claimed a rival had infringed its design of a ride-on suitcase for children, affirming criticisms made by the Court of Appeal that the Community Registered Design (CRD) for the product was not simply a claim for a suitcase shape but for an animal with horns; that the absence of decoration reinforced the horned animal impression and that the CRD claimed a shape of two contrasting colours.
9 March 2016
The Supreme Court has overturned the High Court’s decision to dismiss a case as “bound to fail”, brought by a construction company against a bank, concerning the ability to benefit from the sale of an incomplete development.
8 March 2016
The Court of Appeal has ordered a retrial of a case concerning a man's last will and testament following an application by his surviving civil partner, which was originally refused by the President of the High Court. The case concerned two testamentary documents. The first had been executed by Mr Brian Earls, a noted diplomat, in March 2013, and left his house to his civil partner Mr Said Laaser, as well as bequests to his family and a specific bequest of some €50,000 to a Mr Ararat Andressian, an Armenian friend of his. This will had been executed after the presence of a lump in the deceased’s mouth was discovered following a dental procedure. Although his initial prognosis for recovery was good, he returned to hospital at the end of June 2013 because of a recurrent infection which was impeding the continuation of his chemotherapy treatment. On July 2nd, however, his family received the unpleasant and deeply distressing news that he had developed secondary forms of cancer and that the prognosis was now extremely bleak. The testator was ultimately to die at about 4am on the morning of Friday, July 5th, 2013. Mr Maurice Earls was a brother of Brian Earls, and executor and beneficiary under both the March and July wills. He was the first named defendant and chief witness. Mr Earls gave evidence that on Wednesday July 3rd, the testator had indicated to Mr Earls that he intended writing a new will and that he was dividing his assets between Mr Lasser and his siblings. Mr Earls therefore brought the March will to the hospital, where he drafted a new will following discussions with the testator. Mr Earls typed up a draft, and returned on the afternoon of the 4th July. Realising that his brother was too physically weak to sign the will, he asked a nephew who was a legal practitioner, who said an “X” would suffice. The will was then executed at about 6.30pm in the presence of Mr Earls and his witnesses, namely, his nephews, Mr Fitzgerald and Mr Roberts. Mr Earls went home briefly and returned at about 10pm. He stayed with his brother through the night, reading to him a review from The Times Literary Supplement. Mr Earls acknowledged that his brother’s articulation at that point was not “great”, but that at times he saw his brother nodding through an oxygen mask in acknowledgment. Evidence was also heard from Fr. Gerard Deignan, who was called to give Brian Earls Last Rites. He did not know the testator, but formed the view that the testator had the capacity to receive spiritual ministration of this kind. Ms Mary Early, the testator’s sister, gave evidence that she had read the will to her brother, and that she considered that he had consciousness until about 9pm that evening. The nephews who had acted as witnesses also gave evidence that the testator knew that it was his will and that he knew what he was signing, and that they did not know the content of the will. Mr Laaser testified that he was aware that a new will had been prepared, but he had not been present for its execution. He emphasised that the testator was asleep or otherwise barely conscious for much of July 4th. He had no recollection of the testator talking during that day. While Mr Laaser wanted to communicate with the testator, there was either no response or a minimal response any time he tried to speak with him. Mr Laaser objected to the will on the ground that he was not satisfied that the July will truly represented the will and wishes of the testator. The President of the High Court Kearns P. originally dismissed Mr Laaser’s challenge, finding that “in all the circumstances I am satisfied to admit this will to proof in solemn form of law and will so direct”. On appeal, the Court found that the principal issue was whether the testator had sufficient competence in the circumstances to execute the will of July 4th, 2013. Section 77(1)(b) of the Succession Act 1965 (“the 1965 Act”) provides that in order to be valid, a will “shall be made by a person who…is of sound disposing mind. The Court cited the Supreme Court’s decision in In bonis Corboy I.R. 148, a case which is generally regarded as the leading authority on testamentary capacity. That case found that “it was vitally important that testamentary capacity on the evening should be firmly established. It would seem to be that nothing less than firm medical evidence by a doctor in a position to assess the testator’s mental capacity could suffice to discharge the onus of proof of proving him to have been a capable testator.” The Court of Appeal Judge Hogan found that: “I cannot see that the present case is really any different in principle from Corboy…If the Supreme Court considered that affirmative medical evidence was required in Corboy to establish the testamentary capacity of the testator, the present case cannot realistically be regarded any differently.” He also distinguished the case from the Supreme Court’s decision inRe Glynn, deceased 2 I.R. 326, citing “the all important difference between Glynn and the present case in that in the former case the instructions for the will had been given at a time when the testator’s testamentary capacity was not in doubt. That cannot be said in the present case.” The Judge noted that: “There remains for consideration the fact that the evidence as to capacity which was given on behalf of the defendants was not directly challenged in cross-examination by Mr. Laaser, even though the testator’s testamentary capacity was the critical part of his case.” The Judge observed that there may have been a misunderstanding between Mr Laaser, who, it was noted, was originally from Morocco, not familiar with the court system in Ireland, and representing himself, and the High Court judge, who asked him to keep his cross-examination to the circumstances surrounding the making of the second will. It appeared from the transcript that this may have “given Mr Laaser the (wrong) impression that he could not pursue issues arising from the March will and his cross-examination appears to have somewhat abruptly ended at that point”. Further, Judge Hogan noted that: “Mr Earls stated in evidence that Dr Osman, the testator’s treating consultant, had told his sister, Ms Mary Early, that the testator was “capable”. This evidence was clearly inadmissible hearsay, as Dr Osman did not give evidence and Ms Early did not address this point in her testimony.” Concluding, Judge Hogan noted that the onus of demonstrating testamentary capacity in the circumstances rested with the defendants: “In the light of the circumstances in which the July 2013 will came to be executed, the effect of the Supreme Court’s decision in Corboy is that this could only have been done by means of affirmative medical evidence led by the defendants as to that capacity. Insofar as the President dismissed the action even though such evidence was never led by the defendants, I fear that in the light of Corboy that he was in error.” He therefore found that in light of the need for medical evidence and the failure of Mr Laaser to pursue the question of testamentary capacity in cross-examination, the fairest course of action in the circumstances would be to order a complete re-trial.
7 March 2016
Supreme Court finds Health Service Executive’s changes to dental treatment policy not a breach of contract
The Supreme Court has dismissed an appeal by two dentists who claimed that unilateral alterations to their contracts, with regards to which treatments given to medical card holders could be funded, were a breach of contract.
4 March 2016
The Court of Justice of the European Union (CJEU) has confirmed that citrus fruit labelling indicating the preserving agents and other chemical substances used in post-harvest processing is compulsory.
4 March 2016
The Court of Justice of the European Union (CJEU) has ruled that authorised Daimler dealers are not responsible for advertisements which, despite their efforts to have them removed, continue to associate their name with the trade mark “Mercedes-Benz” on the internet and Daimler cannot require those dealers to take steps to remove such advertisements from websites where they have not been ordered.
4 March 2016
Court of Appeal refuses to order discovery of correspondence leading to settlement between the Central Bank and INBS
The Court of Appeal has upheld the decision of the High Court, not to order the discovery of the without prejudice correspondence leading to the settlement passing between the Central Bank and Irish National Building Society (“INBS”), as requested by former executive director and secretary John Purcell.
3 March 2016
No violation of article 6 after evidence found in unlawful search used against man, Strasbourg rules
The European Court of Human Rights (ECtHR) has ruled the article 6 right to a fair trial of a German man was not violated after he complained that evidence found coincidentally during an unlawful house search had been admitted in criminal proceedings against him.
3 March 2016
The case between Ewaen Fred Ogieriakhi and the Minister for Justice and Equality, Ireland, the Attorney General and An Post had spanned ten years, and been before a number of High Court judges, the Supreme Court, the European Court of Justice and finally the Court of Appeal.
2 March 2016
The President of the High Court Mr Justice Kelly has made an order of costs in respect of a number of backdated practising certificates, in which he criticized the Law Society for claiming an entitlement to seek €350 in costs from each solicitor who applies to have their practising certificate backdated.
1 March 2016
, the Court found that the criteria did not amount to a policy, as it emerged from a consideration of the current political landscape.
29 February 2016
A man convicted of murder and the possession of a firearm with intent to endanger life has been granted a Certificate pursuant to s. 29 of the Courts of Justice Act 1924, to the effect that the decision of the Court of Criminal Appeal raised an issue of exceptional public concern, and that it was in the public interest that an appeal be taken to the Supreme Court.
26 February 2016
The Court of Appeal have dismissed an appeal brought by a road haulage company against the severity of a €1 million fine imposed on it following its plea of guilty on 18th December 2012 to an offence contrary to ss. 12 and 77(9) of the Safety Health and Welfare at Work Act 2005.
25 February 2016
An asylum appeal is to be re-heard after the High Court found that the introduction to the Refugee Asylum Tribunal’s decision had incorrectly stated that the Refugees Application Commission had found no or minimal basis for the application.
24 February 2016