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
j
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
R.
-v-
Horsham District
| Council and Another, ex parte
j Wenman, The Times,
October 21,
j
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
i
conduct of judicial review proceedings
S if barristers were to be helped to avoid
I
heavy financial penalties
in orders for
' wasted costs made under section 51(6)
of the
Supreme Court Act, 1981,
as
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
j
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
j
to be considered before the judge was
j
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,
j
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
(Continued on page 344)
342