The Gazette 1961

settlement, the official solicitor appeared on behalf

of the patient and the receiver and a relative of the

patient representing a class of persons who might

be affected were also represented. Having disposed

of the substance of the application Wilberforce J.

dealt with the question of the costs.

The rules

applicable were Rules 28 to 31 of the Supreme Court

Costs Rules and the relevant text runs as follows :

" Rule 28 (i) This rule applies to costs which by

or under these rules or any order or direction of the

court are to be paid to a party to any proceedings

either by another party to those proceedings or out

of any fund (other than a fund which the party to

whom the costs are to be paid holds as trustee or

personal representative).

(2) Subject to the following provisions of this

rule, costs to which this rule applies shall be taxed

' on the party and party basis, and on a taxation on that

basis there shall be allowed all such costs as were

necessary or proper for the attainment of justice or

for enforcing or defending the rights of the party

whose costs are being taxed.

(3) The court in awarding costs to which this

rule applies may in any case in which it thinks fit to

do so order or direct that the costs shall be taxed

on the common fund basis."

From the rules it appears that taxation on a

solicitor and own client basis could not be directed

and in any event it was inappropriate that such a

taxation should be directed in as much as once the

client expressly or impliedly approves the costs they

are conclusively presumed to have been reasonably

incurred and so cannot be challenged by or on behalf

of the person who has to pay them. To hold other

wise would put the patient at the mercy of other

parties both as to the nature of the costs incurred

and as to their amount. The rules further provided

that taxation on a trustee basis could not, in general,

be directed except in favour of a person holding a

trust fund in that capacity. There was a general

discretion under rule 28 (3) to order taxation on

a common fund basis.

It was held that it was

proper in a normal case to order taxation on a

common fund basis of the costs of the successful

applicant and the costs of all other interested

parties appearing on the application. The costs of

the official solicitor would be taxed on a solicitor

and own client basis since he appeared for the

patient as his client.

(Re C.E.F.D. (1963) i All

England Reports, page 685.)

Note:

The corresponding rules in the Rules of

the Superior Courts, 1962, are contained in order 99,

rule 5, paragraph u (i), (2) and (3). Subparagraph

(3) provides that the court in awarding costs may if

it thinks fit order that the costs be taxed on

solicitor

and client basis. The words " solicitor and client "

are in substitution for the words " common fund "

contained in rule 28 (3) referred to above.

It is

understood that in this country the costs are allowed

only on a party and party basis in cases of this nature.

Counsel's discretion as to calling a witness

The Court of Criminal Appeal in England dis

missed an appeal by Albert Frank Vincent Gatt

against a conviction at the Central Criminal Court

when he was found guilty by a jury on a count of

causing grievous bodily harm with intent upon,

and other counts involving grievous bodily harm

and wilful treatment of his infant son CarmeUo Gatt

for which he was sentenced to six years imprison

ment. The court had given leave to appeal and

adjourned the hearing of the appeal to enable

witnesses to be called.

It was contended on behalf of the appellant that

at the trial before the jury the appellant's wife

although physically present and available to give

evidence had not been called because counsel then

conducting the defence, without reference to the

appellant or the wife, had decided not to call her.

The defence was that the child's injuries had been

caused by falling from his cot.

It was submitted

that if the jury had heard Mrs. Gatt's evidence the

verdict might have been very different.

Counsel

stated that he had received a letter from counsel

who conducted the defence before the jury and he

stated in his letter that as far as he could remember

the reasons which prompted him in his discretion

not to call Mrs. Gatt were that her condition was

highly nervous and almost hysterical and that he

formed the view that she would not make a good

witness and would make a very bad impression on

the jury. He felt that the best interests of his client

would be served in not calling her. It was submitted

that this had been a grave error of judgment on

counsel's part and that had the appellant's wife been

called the jury would have returned a different

verdict.

The appellant and his wife then gave

evidence before the Court of Criminal Appeal and

two further witnesses were also called.

The Lord Chief Justice giving judgment said that

the prosecution case was that this was a shocking

case of child cruelty. When leave to appeal had been

granted the court felt that there was something to

be enquired into lest there had been a miscarriage

of justice. The jury had been told that there was

one other eyewitness whom they had not heard,

namely the appellant's wife. At the close of the

prosecution's case the court had adjourned to enable

instructions to be taken from the appellant but he

had not given any instructions to his counsel to

call his wife in evidence and counsel accordingly

used his discretion and did not call her. Nevertheless