459 / 462
GAZETTE
SEPTEMBER1992
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.
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
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,
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-
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