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The Gazette of the Incorporated Law Society of Ireland.
[FEBRUARY, 1914
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),
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