The Gazette 1992

GAZETTE

SEPTEMBER1992

since these would be dealt with under the relevant legislation and in relevant courts for the determination of such issues; but it would be much easier for the Bench and for objectors if cases such as the present were dealt with under a codified system of licens- ing in which all relevant issues could be considered together rather than separately. Sheehan v Reilly High Court 19 April 1991 LICENSING - PUBLIC MUSIC AND PUBLIC DANCING LICENCES - REVOCATION - WHETHER LIMITED TO CASES IN WHICH CRIMINAL OFFENCE COMMITTED - WHETHER COURT GRANTING LICENCES ENTI- TLED TO GRANT REVIEWABLE LICENCE - IUDICIAL REVIEW - WHETHER LICENSEE CONSENTED TO GRANT OF REVIEWABLE LICENCE - Public Health Acts Amendment Act 1890, s.51 - Public Dance Hall Act 1935, s.6 The respondent Judge of the District Court had granted the applicant a public music licence under s.51 of the 1890 Act and a public dance licence under s.6 of the 1935 Act. The order of the Court stated that the objectors to the I icences were entitled to re- enter the matter at any time during the currency of the licences. On one such re- entry, the objectors stated that the licences were operated in such a manner as to cause a public nuisance and, having heard the evidence, the respondent Judge revoked the applicant's licences. The applicant sought judicial review of the revocation on the ground that the Judge had no jurisdic- tion to revoke the licence, and that the only basis for revocation under s.51 of the 1890 Act or s.6 of the 1935 Act was a conviction for a licensing offence. HELD by Barron J quashing the respondent's revocation: (1) the respondent had no jurisdiction to re- voke the licences in the instant case, having regard to s.51 of the 1890 Act and s.6 of the 1935 Act; having granted the licences he was functus officio, and he was not entitled to grant, in effect, a reviewable licence; (2) since the error went to jurisdiction, the applicant was not estopped from seeking judicial review by his failure to challenge the re-entry provision in the Order of the respondent. Smyth and Anor v Tunney and Ors (No.2) High Court 8 August 1991 PRACTICE - COSTS - COUNSEL'S BRIEF AND RE- FRESHER FEES - FUNCTION OF TAXING MASTER AND HIGH COURT IN RELATION TO SUCH FEES - SOLICITOR'S INSTRUCTION FEES WHETHER REA- SONABLE •- LENGTHY CIVIL ACTION INVOLVING ALLEGATIONS OF FRAUD - Rules of the Superior Courts 1986, 0.99, r.37(8), Appendix W The parties had been involved in a 17 day civil action in which the plaintiffs con- tended, inter alia, that the defendants had fraudulently concealed alterations to an agreement between the parties and the defendants argued that the proceedings constituted an abuse of the process of the courts and an attempt to blackmail them: see Smyth and Anor v Tunney and Ors (High Court, 6 October 1989). Each of the defendants was represented by one senior and one junior counsel. Senior counsel for the first defendant agreed in advance with his instructing solicitor a brief fee of 10,000 guineas, and a refresher fee of 2,000 guin- eas per day. The instructing solicitor con- sidered these fees reasonable. The Taxing

Master allowed a brief fee of 6,875 and a refresher fee of £1,000. The instructing solicitor for the first defendant sought an instruction fee of £90,000, which the Tax- ing Master reduced to £25,000. Reductions to £12,500 and £8,000 were made in the instructing fees of the two other solicitors for the defendants. On appeal to the High Court HELD by Murphy j: (1) the former practice of a solicitor marking a fee on a brief, which had the merit that the solicitor focused on the question of the appropriate fee for counsel, had fallen into disuse and it was not the court's function to seek to revive the practice. Dicta in Robb v Connor (1875) IR 9 Eq 373 referred to; (2) it was not the function of the Taxing Master in review- ing counsel's fees to determine whether such fees were correct, but he did have a discretion to review counsel's fees in that he was required to decide whether a rea- sonably prudent solicitor acting in a rea- sonable way would have offered such a fee. Dunne v O'Neill [1974) IR 180, Kelly v Breen [1978] ILRM 63 and The State (Gallagher Shatter & Co) v deValera (No.2) [1991] 2 IR 198 discussed; (3) the Taxing Master had erred in describing the fee charged by counsel as a special fee, since there was no evidence to support this; (4) having regard to the fact that a fee of more than 5,000 guineas had rarely been al- lowed on taxation, and since the instant case did not involve any special scientific evidence but was largely fought on ques- tions of fact, the fee of 10,000 guineas was not one which a reasonable solicitor would have offered; and the appropriate brief fee was 7,500 guineas and a refresher fee of 1,000 guineas; (5) in relation to the solici- tor's instructions fees, the Taxing Master was entitled to determine whether the fee sought was the correct fee, and for this reason the experience of the Taxing Master was especially relied on by the courts; (6) an instruction fee could not be used to compensate the solicitor in some way for the low levels of fees allowable under Ap- pendix W of the 1986 Rules in respect of other expenses, and in the instant case the solicitors' role was not dominant but its outcome depended primarily on the foren- sic skills of counsel; however, in the cir- cumstances the fees allowed by the Taxing Master were too low and instructing fees of £40,000, of £22,500 and of £16,000 should be allowed, bearing in mind that the solici- tor for the first defendant had completed much of the paperwork for the case; (7) the Taxing Master had correctly disallowed a fee of £1,500 for senior counsel and of £1,000 for junior counsel for thier attend- ance to take judgment in the case; (8) the Taxing Master had correctly allowed at- tendance fees for an estate agent and an architect who, although not called, were correctly regarded as witnesses whose at- tendance might be crucial. Duan v Freshford Co-Op Lid (1942) ILTR 220 applied. Aspell v O'Brien High Court 26 November 1991 PRACTICE - COSTS - STANDBY' FEES FOR MEDICAL WITNESSES - WHETHER REASONABLE CHARGES OR EXPENSES - WHETHER PRACTICE BY WHICH SUCH FEES ARE PAID BY SOLICITORS MADE THEMALLOW-

mation to the insurance company; (4 De- cember 1991) (4) as to whether the plaintiff was entitled to damages from the second defendant, the matter was to be approached on the basis of whether the plaintiff would have received insurance cover from an- other company if the plaintiff's arrest and conviction was revealed, the onus being on the plaintiff; (5) since evidence had been given for the plaintiff that such cover could have been obtained from an English com- pany, albeit at a higher premium, and this had not been disputed by the second de- fendant, the plaintiff was entitled to dam- ages under the same headings as those in the policy he had obtained from the first defendant; (6) the plaintiff was not entitled to any loss of profits beyond the one year in the policy since the plaintiff's inability to borrow to reinstate his premises was not a direct consequence of the second defend- ant's negligence, though if he had been able to boorow to reinstate he would have been entitled to claim from the defendant any interest on a loan. Murphy v McGrath [1981 ] ILRM364distinguished;(7) the plain- tiff was entitled to interest on his damages under s.22 of the 1981 Act since he would have been compensated over five years ago were it not for the second defendant's neg- ligence. The applicant company sought declara- tions under ss.15 and 16 of the 1960 Act that, having regard to substantial building works in progress and to planning permis- sion received, the premises in its ownership were suitable for the granting of an intoxi- cating liquor licence and a restaurant cer- tificate. The applicant indicated that it in- tended to apply for permission to operate the premises, located in Ranelagh in Dub- lin, as a disco up to 2 a.m. Local residents objected to the application on the basis of, i nter al ia, the nu isance which wou Id thereby becreated. They also objected on the ground that an application under ss.15 or 16 of the 1960 Act could not be made after building works had commenced. HELD by Johnson J granting the declarations sought: (1) the applications under ss.15 and 16 could be made at any time before the completion of the building works; (2) the extension to the premises clearly made it suitable for an intoxicating liquor licence under s.15 of the 1960 Act; (3) having regard to the fact that the premises in question were already in possession of a restaurant certificate for accommodation which was far inferior to that planned, and to the fact that planning permission had already been obtained for a restaurant, the applicant had made out a case that the premises were suitable to be certified as a restaurant under s.16 of the 1960 Act; (4) the declarations granted did not amount to permission for the premsies to be used at any time for any purposes, Application of Chariot Inns Ltd High Court 12 April 1991 LICENSING - INTOXICATING LIQUOR - RESTAU- RANT CERTIFICATE - APPLICATION FOR DECLARA- TION THAT PREMISES SUITABLE FOR LICENCES ON BASIS OF SUBSTANTIAL WORKS IN PROGRESS - WHETHER DECLARATION SHOULD BE GRANTED - EFFECT - LAW REFORM - Intoxicating Liquor Act 1960, ss.15, 16

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