The Gazette 1993

GAZETTE

NOVEMBER 1993

professional fee income already taxed

at source in a relevant year-of

assessment without the benefit of a

tax credit for the tax already suffered

at source.

The plaintiff contends that section 18

of the said chapter III of the

Finance

Act, 1987,

as amended by section

26( 1 )(a) and (b) of the

Finance Act,

1990,

is invalid having regard to the

Constitution and Article 40 thereof in

that,

inter alia,

the plaintiff is deprived

of the benefit of and unable to obtain a

set-off for the appropriate tax suffered

against his total taxable income for the

relevant year of assessment to Income

Tax until the following Income Tax

year and penalties and interest for late

payment of Income Tax liabilities are

applicable in a relevant year of

assessment in disregard of

Withholding Tax already suffered at

source and available for credit in

another tax year.

The plaintiff claims damages and a

declaration that the relevant provisions

are invalid having regard to the

i Constitution and Article 40 thereof.

Lawbrief

hopes to keep readers

informed of the progress of the case as

it may have important ramifications

for barristers and solicitors.

Lawyers Warned in Judicial

Review Cases

The case of

-v-

Horsham District

| Council and Another, ex parte

j Wenman, The Times,

October 21,

1993, provided a warning for solicitors

i and barristers in England and Wales

! which may not go unheeded in this

jurisdiction. However, it is appreciated

that English law is more stringent than

| Irish law in relation to costs.

Brooke J in a reserved judgment in the

Queen's Bench Division stated that the

Bar Council could do well to arrange

the preparation and publication of a

i statement of professional standards to

be expected of counsel having the

conduct of judicial review proceedings

S if barristers were to be helped to avoid

heavy financial penalties

in orders for

' wasted costs made under section 51(6)

of the

Supreme Court Act, 1981,

substituted by section 4 of the

Courts

and Legal Services Act, 1990.

The Judge stated that if the new

statutory régime were to lead to those

! who held themselves out as competent

to practice in as complex a field of

| litigation as judicial review to decide

that they did not in fact have the

competence to enable them to avoid

the risk of wasted costs orders against

them, or to take more active steps to

pursue continuing education than was

now the norm in order to ensure that

they continued to possess the

standards of the reasonably competent

practitioner in the field, then it must be

assumed that those welcome

i developments were the intention and

I hope of Parliament when it passed the

j 1990 Act.

| The history of the proceedings

revealed areas of sloppiness of thought

and departure from proper practice

which had become all too

commonplace in the conduct of

judicial review proceedings before

single judges, according to Brooke J.

He stated that lawyers, for example,

should not regard it as unnecessary to

write a letter before taking action

! mainly because they believed it to be

! inevitable that the response would

deny their plaintiffs claim. A

fortiori,

judicial review proceedings, in which

the High Court was invited to

supervise the way in which inferior

bodies performed duties imposed on

them by statute, should not ordinarily

be embarked upon before the inferior

body had received a complaint and had

been given an opportunity to say

whether or not it accepted it and, if

not, to give its reasons.

"The history of the proceedings

revealed areas of sloppiness of

! thought and departure from

proper practice which had •

become all too commonplace..."

Judicial review proceedings,

furthermore, were wholly inappropriate

as the forum for the resolution of

issues of disputed fact and all material

matters, including that of the existence

| of an alternative statutory remedy, had

to be considered before the judge was

invited to grant leave.

The Judge stated that the case

disclosed many departures from good

! practice. However, certain elementary

errors had been made prior to October

1, 1991 and accordingly, the Judge

considered that a wasted costs order

should not be made.

Practice Direction

The Hon. Mr. Justice Declan Costello,

Acting President of the High Court,

i made the following

Practice

Direction

| on September 8, 1993.

The Use of Medical Reports and the

| Reports of other Expert Witnesses

i in Personal Injury and other

Actions.

1. In actions in which damages for

personal injuries are claimed,

counsel should consider whether

the attendance at the trial of

medical witnesses who have

provided medical reports is

necessary to explain or

supplement such reports. If it is

considered that attendance is not

necessary a request should be

made to the opposing side to admit

in evidence the contents of such

reports without the necessity of

adducing oral testimony. Should

the request be acceded to then

copies of all admitted reports

should be made available for the

Court.

2. When a medical witness is called

to give evidence, counsel in

his/her absolute discretion should

decide whether or not to make

available for the use of the Court

copies of any medical reports

furnished by the witness. Counsel

should not be required to give

reasons should the reports not be

made available. Should counsel

decide to make them available

they should first be shown to the

opposing party. If no objection is

taken, then counsel should indicate

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