185 / 736
house fit for human habitation, the defendents
were in breach of that obligation.
(Billyack v. Leyland, Construction Co., Ltd.
[1968] 1 All. E.R. 783).
Discovery—Duty of Solicitor
It is the duty of a Solicitor to ensure that his
clients appreciate their duty in regard
to dis
closure on discovery. The scope of discovery is
extremely wide and solicitors owe a duty to their
clients to ensure the preservation of relevant docu
ments that might otherwise be subject to destruc
tion in accordance with business routine.
At
the conclusion of
a
case held
in
the
Chancery division of
the High Court in Eng
land on March 20th, 1968, Megarry J. (Rockwell
Machine Tool Co. Ltd. v. E. P. Barrus (Con
cessionaires) Ltd.
and Others—and
associated
actions; stated, inter alia, "In preparing for trial
solicitors bear great responsibility and a heavy
burden. Not the least of these burdens is that of
discovery. This is of especial weight in a complex
case of passing off such as this was. Many liti
gants
(and not
least corporate
litigants) have
little appreciation of the scope of discovery, and
the duty of making full disclosure. So often they
neither know nor appreciate the requirement that
they must search for and disclose to their adver
sary any document which, in the classic phrase
of Brett, L. J., "may fairly lead him to a train
of inquiry" which may either advance his own
case or damage his opponent's. Observations of
the learned judge can be found in the all Eng
land Reports, May 7th, 1968.
(1968, 1 All E. R. page 98).
Costs
—
Discretion of the Supreme Court
The Testatrix, an Italian lady who had for many
years carried on a business in Dublin, had two
married children, a son and a daughter (Mrs.
Vella). She had made a Will with her usual
solicitor
leaving her property equally between
them, but about five years later (and several years
before her death) she made a second Will, while
estranged from her daughter who was then in
England, leaving everything to her son. This will
was prepared by a solicitor who had not acted
for her before and who was no longer in prac
tice, or in Ireland at the date of her death. The
daughter entered
a
caveat
shortly after her
mother's death, but allowed the time for renew
ing the caveat to expire, and the son obtained
a grant of administration with the second Will
annexed. The solicitor who prepared the second
Will was named therein as Executor but renoun
ced probate. The daughter issued proceedings to
have the second Will condemned. Very shortly
before issuing this Summons the daughter had
obtained statements from the Witnesses
to the
second Will. One of the Witnesses made a state
ment, verified by Affidavit, and subsesuently give
evidence to the effect that he was not present when
the Testatrix and the other witness signed the
Will, but that the document was brought to him
in his shop, already bearing the names of the
Testatrix and
the other witness, and
that he
signed it in his shop, in the absence of the other
witness. The other witness stated that he occup-
pied an office in the same building as the solicitor
who drew the Will; that he was requested to step
across to witness the Will; that he saw the Testa
trix sign and then signed as witness; that another
man whom he could not identify was there and
stepped up to the table as if to sign as witness,
but that he did not actually see him sign his
name. The solicitor gave evidence at the trial to
the effect that the Will was duly executed in his
office, but he could not
recollect
seeing
the
second witness sign his name. Davitt P. heard the
case, and, on the balance of probabilities, held
that the Will was properly executed and that the
recollection of the second witness was at fault.
He made no order as to the costs of the Plaintiff,
who appealed
to
the Supreme Court on
the
question of costs only. In the outcome the Plain
tiff was allowed costs of a two day hearing in the
High Court (the case having taken three days)
and the costs of her appeal. The Supreme Court
considering that the circumstances were such that
a full enquiry into the mode of execution of the
Will was properly required, in view of the state
ments made by the second witness.
The Supreme Court in its reserved judgment
noted two points (1)
that, by virtue of Article
34 of the Constitution, the Supreme Court has
an unfettered jurisdiction to deal with Appeals
from the High Court, including Appeals from a
descretionary order as to costs made by a High
Court Judge, and is at liberty to substitute its
descretion for that of the High Court, whether
or not it appears that the descretion of the High
Court has been exercised on a wrong principle;
and (2) that as a general rule a party to a pro
bate action who has unsuccessfully opposed the
Will is entitled to be allowed his costs out of the
estate if there were good grounds for requiring a
full enquiry into the circumstances in which the
Will was executed.
(Vella v. Morelli. I.L.T. & S.J., Vol. 102, p.
334).
43