152 / 328
the trial judge had been correct. Sellers L. J. said
that those who took part in the administration of
justice must be free from fear of civil proceedings.
It had been sought to draw a distinction between
actions for defamation and actions for conspiracy.
Whatever the form of action there could be no
difference in principle. The rule of law was that no
action lay against evidence prepared, produced or
procured in the course of legal proceedings. The
appeal was accordingly dismissed.
(Merrinan
v.
Vibart & anor. Solicitors Journal, August loth,
1962, page 649).
Test of Obscenity.
A bookshop proprietor and his assistant were
charged with publishing obscene articles contrary
to section 2 (i) of the Obscene Publications Act, 1959
and with conspiracy to contravene the Act. Two
plain-clothed police officers had bought the photo
graphs in the shop. As a result of this the shop was
searched and articles were seized which formed the
basis of the conspiracy charges. The police officers,
who were experienced in this type of work, agreed
under cross-examination that they had seen thousands
of similar photographs and that they did not arouse
any feelings in them whatsoever. A submission that
there was no case to go to the jury was rejected
and the defendants were convicted on both counts.
On appeal it was held that the test of obscenity was
whether the effect of the article in question on the
person was such as to tend to deprave or corrupt
him. The court could not accept the prosecution's
contention that there was such a thing as inherent
obscenity. The degree of inherent obscenity had to
be related
to
the susceptibility of the viewer.
Accordingly
the conviction on
the charge of
publishing obscene articles would be quashed.
It
was held also that the defendants were rightly
convicted on the charge of conspiracy. The appeal
was accordingly allowed in part.
(R.
v,
Clayton,
R.
v.
Halsey. Solicitors Journal, August loth, 1962,
page 652).
Trustees Costs: Counsel's Fees: Correct basis for
Taxation.
The plaintiff trustees, who were a bank, brought a
summons for a review of taxation of their costs in
an administration matter. As administrators they
had issued an originating summons raising a number
of questions which arose on the administration of
the estate and on determination thereof it was
ordered that the matter be referred to the Taxing
Master to tax the costs of an incidental to the applica
tion. When the matter came before the Taxing
Master two items on the bill were altered. One was
a brief fee for counse for the plaintiffs of 100 guineas
and this was taxed to 50 guineas. The second was
a refresher of 50 guineas charged in respect of the
same brief for the second day of the hearing and this
was taxed to 30 guineas. The summons to review the
taxation was heard in chambers and Plowman J.
said in the course of his judgment that it appeared
to him that the Taxing Master was labouring under
a misapprehension as to the facts.
The Taxing
Master was under the impression that the plaintiffs'
solicitors had marked the brief at 100 guineas simply
because senior counsel for the defendant had obtained
a fee of 150 guineas and his junior had his brief
marked at 100 guineas under the two thirds rule. The
plaintiffs were represented by junior counsel only.
It transpired from affidavits filed by the solicitors
concerned that the brief fee of 100 guineas had
actually been negotiated. It was further held that the
test to apply in determining whether the fees agreed
to be paid to counsel were proper or not is whether
the trustees in agreeing them had committed such a
breach of trust as to be liable to pay part of it
personally. This was not the case here. Further,
in determining whether the fees paid are proper in
amount, it is relevant to consider the complexity
of the legal questions involved, the complexity of
the questions of fact involved, the amount at stake,
payments made in respect of interlocutory work and
the standing of counsel concerned.
The Taxing
Master having applied the wrong test and taxed
down counsel's fees as improper it was accordingly
held that the objections of the plaintiff trustees to
the taxation must be allowed fin Re Whittley
deceased (1962) i Weekly Law Reports page 922).
Solicitors' Partnership deed: Misconduct of one partner.
Three solicitors were parties to a partnership
deed which contained the following clause—"If
during the continuance of this partnership any
partner shall commit or be guilty of misconduct
then and in any such case the other partners may by
notice in writing expel him from the partnership."
It was held by Russell J. that if two partners were
guilty of misconduct then the third partner could
not expel them under the foregoing clause (In Re
A Solicitors' Arbitration (1962),
i Weekly Law
Reports, page 353).
Damages for persona/ injuries :
state of unconsciousness
following permanent brain injury : whether incapacity to
enjoy damages relevant.
A woman aged twenty received serious brain
injuries in a motor car accident caused by the
admitted negligence of the defendant. As a result
she had been unconscious for three and a half years
and the medical evidence was that there was no
prospect of her recovery and that she would never
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