224 / 274
GAZETTE
January-February 1976
constitutionality of the Section was
not considered). The accused had
an opportunity to deny belonging
to such an association on oath,
which he had not availed of.
Counsel applied for leave to
appeal to the Supreme Court on
the important question of how our
Courts were to approach the ques-
tion of privilege in a criminal trial,
but the Court refused leave to
appeal, the Chief Justice stating
that the Court considered that in
civil or criminal proceedings, the
document must be decided in
relation to it.
People (D.P.P. v. Desmond Fer-
guson — Court of Criminal Appeal —
(O'Higgins
C.J.,
Mumaghan
and
McMahon JJ.) per the Chief Justice
— unreported — 27th October, 1975.
As Taxing Master has not exer-
cised his discretion
properly,
counsel's fees would be allowed in
full.
Motion for Review of Taxation of
Costs awarded to the plaintiff. The
action was to have admitted to
Probate in solemn form the Will
dated 15 th May, 1961, of Josephine
Heffernan, who died on 16th
January, 1967. The plaintiff was the
sole surviving executor, and the
defendant claimed there had been
undue influence. On the 5th day
of the Trial, the defendant with-
drew opposition to the Will and
executed a Consent which was
made a rule of Court, and the
Court affirmed the Will.
The plaintiff's costs were duly
taxed by the Taxing Master on
10th May, 1971. The solicitor for
the plaintiff was dissatisfied with
the quantum of allowances made,
and duly applied for a review of
taxation in respect of specified
items. The Taxing Master con-
sidered most objections on 23rd
November, 1972, but only con-
sidered items relating to solicitor's
instructions, and to Counsel's fees
and refreshers on 19th January,
1973, and duly issued a report on
these matters on 2nd May, 1974.
Notice of Motion to the High
Court to review the taxation was
lodged by plaintiff's solicitors on
26th February, 1974. It was con-
tended that. as in the action the
judge had directed the plaintiff's
costs to be taxed on Solicitor and
Client basis, these items should
have been allowed in full, particu-
larly as the outlay incurred had
actually been paid.
As regards advice sought by
Counsel, the Taxing Master thought
that Junior Counsel was sufficiently
competent to advise. He accord-
ingly allowed him a fee of £5.25,
and disallowed Senior Counsel's
Fee. The Taxing Master reached
the same conclusion with regard to
the settlement of the Plenary
Summons,
and
only
allowed
Junior Counsel's Fees. The Taxing
Master disallowed any fee to Coun-
sel for settling the Notice of
Motion before the Master. He also
considered that the General Instruc-
tion fee of the solicitor included
the instructions and briefing of
Counsel on a Motion before the
Master. In regard to Fees paid to
Senior Counsel on the brief, it was
thought that £84.00 was reasonable
in the circumstances, and corres-
ponding fee of £56.00 for Junior
Counsel. Refresher fees of £36.75
were allowed to Senior Counsel,
and of £24.50 to Junior Counsel.
Gannon J. held that the Taxing
Master had not exercised his dis-
cretion correctly in placing the
onus on the solicitor for the
plaintiff to justify in detail items
of outlay, and of substituting his
own assessment of the value of
Counsel's work. All the items
which the Taxing Master objected
to should have been allowed until
it was shown that they had been
unreasonably incurred. The Taxing
Master was incorrect in disregard-
ing the fact that these fees to
Counsel had been actually paid by
the solicitors, in a taxation of
costs on a solicitor and client basis,
when the onus of objection is cast
on the party opposing taxation.
There is no evidence in this case
that the party opposing the costs
attempted to argue that the items
in this case were of an unusual
nature, or that the fees payable to
Counsel were special fees. Accord-
ingly the objections brought in by
the solicitor for the plaintiff were
well-founded, and the taxation did
not properly accord with a taxa-
tion on the solicitor and client
basis. The disallowance of any of
these items would not be justified
on this basis, and the numbered
items listed in the judgment will
accordingly be allowed in full.
Re Josephine Heffernan Deed. —
Heffernan v. Heffernan — Gannon J.
—unreported—2nd December, 1974.
Interlocutory Injunction restraining
unlawful picket upheld.
Appeal from Parke J. who granted
to the plaintiffs an Interlocutory
Injunction restraining an alleged
official picket of the Amalgamated
Union of Engineering Workers
(hereinafter called AUEW) from
picketing the premises.
There is no statutory trade dis-
pute in this case, as the strike was
called on the sole authority of the
District Committee, without any
vote to strike being taken by the
Union Members in the shop or
plant involved. Insofar as the Dis-
trict Committee is authorised by
the Rules to approve or disapprove
of members in a shop leaving their
employment in the case of a shop
dispute, this presupposes that the
members concerned must vote
upon the issue. The union alleges
a spurious national policy that,
when a shop steward is dismissed,
the District Council have the
power to call a strike, but this is
not contained in the Rules.
The plaintiffs are Union mem-
bers who work in the factory and,
in view of the probable closing of
the factory if this picket continued,
wish to safeguard their livelihood.
It is essential for them that the
status quo
should be restored. As
this picket is not official in accord-
ance with the Union Rules, the
appeal is unanimously dismissed,
and the interlocutory injunction
granted by Parke J. is affirmed.
Brennan and Others v. Glennon
and Others — Supreme Court (O'Hig-
gins, C.J., Henchy and Kenny JJ.)
per the Chief Justice — unreported
—26th November, 1975.
Declaration given that testator
failed in his moral duty to make
provision for his children, and
direction given that half of the
estate was to be distributed in
accordance with specific percen-
tages for the children.
The plaintiffs claim a Declaration
that the Testator failed to make
proper provision for them accord-
ing to his means, and for a direc-
tion by the Court for proper pro-
vision under S.117 of the Succes-
sion Act 1965. As Kenny J. stated
in McNaughton Deed. — (1973)
I.L.T.R. 1 — normally it is not the
duty of the Court to make a new
will for a testator. If there has been
a material change in the circum-
stances since the will was made, it
is not proper for the Court to specu-
late upon the intention of the
testator had he known the altered
circumstances, and normally the
Court should not necessarily strive
to achieve equality between the
children. But these principles can-
not apply invariably.
The deceased, a rich cattle dealer,
died on 16th March, 1973, having