The Gazette 1961

in diminution of his loss, save in so far as it would

not be fair or just to require him to do so. Where

an employer was under no obligation to pay a

disability pension but could withhold or reduce it

at his discretion it would not be fair to take such

a pension into account (see per Singleton, L.J., in

Payne's case,

supra),

and it was open to the court

to accept that as a ground of binding force and to

discard the other reason given by Cohen, L.J. But

in this case it was fair and just that regard should be

had to the fact that the plaintiff was already, as of

right, in receipt of nearly half his pay. He ought

not to receive compensation twice over.

The

pension must be taken into account and the damages

should be reduced by £18,000 to £14,111 instead of

£32,111. The appeal should be allowed.

Donovan, L.J., dissenting, said that the ratio of

Payne's case covered this case and was not impliedly

overruled by Gourley's case,

supra,

which was

concerned with

the different question whether

account should be taken, not of an asset, but of

liability to income tax. The pension here was not

payable as compensation for the damage inflicted

by a tort but was payable on the occasion of the

accident and was not, strictly speaking, compensation

for the tort. His lordship would have dismissed the

appeal.

Diplock, L.J., concurring in allowing the appeal,

said that the ratio of Payne's case,

supra,

was based

on the principle that damages for negligence were

punitive. The decision in Gourley's case authorita

tively settled the principle that such damages were

compensatory. Appeal allowed.

(Browning

War Office and another,

Solicitors'

Journal,

November 3Oth, 1962, page 957.)

Solicitor's

oppressive

conduct

litigation—persona/

liability for costs

wife petitioned the Court for a decree of

judicial separation on the ground of her husband's

cruelty to which an appearance was entered by the

husband.

Subsequently the husband decided to

defend the proceedings and to cross-petition for

dissolution, but no answer was filed on his behalf.

The wife then obtained a decree of judicial separation,

her petition having been set down as an undefended

cause.

The husband received no notice of the

setting down of the petition. This was so held by

the Court. On the husband's petition to the Court

to reverse the decree on the grounds that he had not

had an opportunity to defend the proceedings the

wife's solicitor deliberately elected to fight the issue

of whether or not the husband had received notice

knowing that they could not prove that he had.

The Court reversed the decree obtained by the wife

under section 14, subsection 3 of the Matrimonial

Causes Act, 1950.

This section provides that the

court may, on application by petition by either a wife

or husband against whom the decree of judicial

separation has been made any time after the making

of the decree reverse it on the grounds that it was

obtained in the

absence

of the person making the

application. The wife's solicitors were ordered to

pay 15 o guineas towards the costs of the husband on

the ground that their conduct of the proceedings for

the reversal of the decree had been oppressive. The

appeal of the wife's solicitors against this decision

to the Court of Appeal was dismissed and it was

held that their conduct which had resulted in the

delaying the setting aside of the decree and causing

the husband to become liable for substantial costs,

was oppressive and that the order against them to

pay the costs should stand. The Court found that

the solicitors had been wanting in their duty as

solicitors and as officers of the court and

the

jurisdiction to order them to pay costs was, in the

view of Dankwerts, L.J., both punitive and com

pensatory.

(Wilkinson

Wilkinson and anor.

(1962)

W.L.R., page i.)

The Incorporated Council of Law Reporting

for Ireland invites applications from members

of the legal profession for the writing of a

text-book on "Probate Practice and Procedure

in the High Court and Circuit Court".

The book should be an up-to-date text-book

on Irish practice and procedure for the use of

practising lawyers and students ; it should be

designed to cover all aspects of Irish practice

and procedure in Probate proceedings (con

tentious and non-contentious), but should not

deal at any great length with the general law

on the subject which is available in current

text-books. The work should contain approxi

mately 300 pages with references to, and a full

list of, all the relevant cases, statutes and

Rules ; in addition there should be a full index.

Applications, with qualifications of the

applicant and a synopsis of the proposed lay

out, should be sent to the Honorary Secretary

on or before the zznd April, 1963.

Any further information required may be

obtained from : The Honorary Secretary, the

Incorporated Council of Law Reporting for

Ireland, Law Library, Four Courts, Dublin 7.

THE REGISTRY

STUDENT requires Bowen's

Statutory Land Purchase, 1928

and

Osborne's

County Court Practice,

1910. Highest prices offered

Box C.iyz.