The Gazette 1976

GAZETTE

January-February 1976

constitutionality of the Section was not considered). The accused had an opportunity to deny belonging to such an association on oath, which he had not availed of. Counsel applied for leave to appeal to the Supreme Court on the important question of how our Courts were to approach the ques- tion of privilege in a criminal trial, but the Court refused leave to appeal, the Chief Justice stating that the Court considered that in civil or criminal proceedings, the document must be decided in relation to it. People (D.P.P. v. Desmond Fer- guson — Court of Criminal Appeal — (O'Higgins C.J., Mumaghan and McMahon JJ.) per the Chief Justice — unreported — 27th October, 1975. As Taxing Master has not exer- cised his discretion properly, counsel's fees would be allowed in full. Motion for Review of Taxation of Costs awarded to the plaintiff. The action was to have admitted to Probate in solemn form the Will dated 15 th May, 1961, of Josephine Heffernan, who died on 16th January, 1967. The plaintiff was the sole surviving executor, and the defendant claimed there had been undue influence. On the 5th day of the Trial, the defendant with- drew opposition to the Will and executed a Consent which was made a rule of Court, and the Court affirmed the Will. The plaintiff's costs were duly taxed by the Taxing Master on 10th May, 1971. The solicitor for the plaintiff was dissatisfied with the quantum of allowances made, and duly applied for a review of taxation in respect of specified items. The Taxing Master con- sidered most objections on 23rd November, 1972, but only con- sidered items relating to solicitor's instructions, and to Counsel's fees and refreshers on 19th January, 1973, and duly issued a report on these matters on 2nd May, 1974. Notice of Motion to the High Court to review the taxation was lodged by plaintiff's solicitors on 26th February, 1974. It was con- tended that. as in the action the judge had directed the plaintiff's costs to be taxed on Solicitor and Client basis, these items should have been allowed in full, particu- larly as the outlay incurred had actually been paid. As regards advice sought by Counsel, the Taxing Master thought

Union of Engineering Workers (hereinafter called AUEW) from picketing the premises. There is no statutory trade dis- pute in this case, as the strike was called on the sole authority of the District Committee, without any vote to strike being taken by the Union Members in the shop or plant involved. Insofar as the Dis- trict Committee is authorised by the Rules to approve or disapprove of members in a shop leaving their employment in the case of a shop dispute, this presupposes that the members concerned must vote upon the issue. The union alleges a spurious national policy that, when a shop steward is dismissed, the District Council have the power to call a strike, but this is not contained in the Rules. The plaintiffs are Union mem- bers who work in the factory and, in view of the probable closing of the factory if this picket continued, wish to safeguard their livelihood. It is essential for them that the status quo should be restored. As this picket is not official in accord- ance with the Union Rules, the appeal is unanimously dismissed, and the interlocutory injunction granted by Parke J. is affirmed. Brennan and Others v. Glennon and Others — Supreme Court (O'Hig- gins, C.J., Henchy and Kenny JJ.) per the Chief Justice — unreported —26th November, 1975. Declaration given that testator failed in his moral duty to make provision for his children, and direction given that half of the estate was to be distributed in accordance with specific percen- tages for the children. The plaintiffs claim a Declaration that the Testator failed to make proper provision for them accord- ing to his means, and for a direc- tion by the Court for proper pro- vision under S.117 of the Succes- sion Act 1965. As Kenny J. stated in McNaughton Deed. — (1973) I.L.T.R. 1 — normally it is not the duty of the Court to make a new will for a testator. If there has been a material change in the circum- stances since the will was made, it is not proper for the Court to specu- late upon the intention of the testator had he known the altered circumstances, and normally the Court should not necessarily strive to achieve equality between the children. But these principles can- not apply invariably. The deceased, a rich cattle dealer, died on 16th March, 1973, having

that Junior Counsel was sufficiently competent to advise. He accord- ingly allowed him a fee of £5.25, and disallowed Senior Counsel's Fee. The Taxing Master reached the same conclusion with regard to the settlement of the Plenary Summons, and only allowed Junior Counsel's Fees. The Taxing Master disallowed any fee to Coun- sel for settling the Notice of Motion before the Master. He also considered that the General Instruc- tion fee of the solicitor included the instructions and briefing of Counsel on a Motion before the Master. In regard to Fees paid to Senior Counsel on the brief, it was thought that £84.00 was reasonable in the circumstances, and corres- ponding fee of £56.00 for Junior Counsel. Refresher fees of £36.75 were allowed to Senior Counsel, and of £24.50 to Junior Counsel. Gannon J. held that the Taxing Master had not exercised his dis- cretion correctly in placing the onus on the solicitor for the plaintiff to justify in detail items of outlay, and of substituting his own assessment of the value of Counsel's work. All the items which the Taxing Master objected to should have been allowed until it was shown that they had been unreasonably incurred. The Taxing Master was incorrect in disregard- ing the fact that these fees to Counsel had been actually paid by the solicitors, in a taxation of costs on a solicitor and client basis, when the onus of objection is cast on the party opposing taxation. There is no evidence in this case that the party opposing the costs attempted to argue that the items in this case were of an unusual nature, or that the fees payable to Counsel were special fees. Accord- ingly the objections brought in by the solicitor for the plaintiff were well-founded, and the taxation did not properly accord with a taxa- tion on the solicitor and client basis. The disallowance of any of these items would not be justified on this basis, and the numbered items listed in the judgment will accordingly be allowed in full. Re Josephine Heffernan Deed. — Heffernan v. Heffernan — Gannon J. —unreported—2nd December, 1974. Interlocutory Injunction restraining unlawful picket upheld. Appeal from Parke J. who granted to the plaintiffs an Interlocutory Injunction restraining an alleged official picket of the Amalgamated