The Gazette 1913-14

[FEBRUARY, 1914

The Gazette of the Incorporated Law Society of Ireland.

82

was inapplicable to the subsequent proceed ings, and that the allowance or disallowance of more than two counsel was a matter in which the Taxing Master should exercise his discretion. The bill of costs was directed to be sent back to the Taxing Master, with a declaration to that effect. The Court of Appeal held (reversing the King's Bench Division) that r. 65'(41), was applicable to proceedings subsequent to the trial, and that on the construction of the rule the only means of getting outside the dis qualification imposed by it was by obtaining the certificate of the Judge at the trial that more than two counsel were reasonable and proper. O'Brien, L.C.—There is no doubt that this case involves the construction of this sub-rule 41 under circumstances which have never before been considered by this Court. I say that distinctly because, although the rule may have had application to Aaron's Reefs Co., Ltd. v. Twiss, I am satisfied that it was not considered in that case at all, and it is our duty to consider it irrespective of Aaron's Reefs Co., Ltd. v. Twiss. In the present the action was for damages for negligence causing personal injuries to the plaintiff, and the case was tried before Mr. Justice Dodd, who did not give the certificate which r. 65 (41) of Or. LXV. contemplates. No doubt it appears from what subsequently happened he may have intended to do so, but we must deal with the case as a case in which the certificate enabling' it to be taken out of r. 41 was not given. Rule 41 is, in its essence, a rule imposing limitations on costs, and it deals in a rather hard and drastic method with cases in which the action ought to have been brought in the County Court, and it does this in words which do not admit of reasonable doubt. [His Lordship read the rule, j Taking these words simply as they stand they stamp the case as a two- counsel case—that is to say, a two-counsel case at the maximum. If the words in the first portion of the rule stood without qualifi cation, I can see nothing in the rule to limit their operation to the trial or to remove the stamp from the proceedings subsequent to the trial. Now, the only argument which has been offered to induce us to consider the rule as confined to the trial are the words " unless the Judge at the trial shall certify under his

Re'eeht Decisions affecting Solicitors. (Notes of decisions, whether in reported or unrepofted cases, of interest to Solicitors are invited from Members.) COURT OF APPEAL. (Before O'BRIEN, L.C., HOLMES and CHERRY, LJJ.) FLANAGAN v. DUBLIN UNITED TRAMWAYS Co... LTD. Jan. 13, 1914.— Costs—Taxation—Number of counsel — Certificate at trial — Or. LXV., r. 65 (41)— Construction. The action, which was one. for negligence, was brought by the plaintiff for personal injuries caused by the falling of a guard wire put up by the defendant company in pursuance of certain statutory rules. The accident was. brought about by the trolley of a tramcar breaking the guard wire, which, becoming electrified, fell on plaintiff and caused the injuries complained of. The action was tried before Mr. Justice Dodd and a special jury on the 10th and llth February, 1913, and resulted in a verdict for £40 damages in favour of the plaintiff. Plaintiff was represented by three counsel at the trial. No special certificate under Or. LXV., r. 65 (41), as to the number of counsel to be allowed was obtained from the Judge after the verdict, and a certificate given on the following day was set aside by the Court of Appeal on the technical ground that it was late under the rule. In the subsequent proceedings on the new trial motion and in the Court of Appeal the plaintiff was also represented by three counsel, and the items objected to and disallowed by the Taxing Master were in respect of the third counsel in the proceedings subsequent to the trial in the King's Bench Division and the Court of Appeal. The ruling of the Taxing Master was as follows :—" Having regard to Or. LXV., r. 65 (41), and to the order of H. M. Court of Appeal in Ireland, dated 17th June, 1913, I allow this objection. " Dated 31st October, 1913. V. K." The King's Bench Division (Madden and Kenny, JJ.), held that Or. LXV., r. 65 (41),