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TWO OR MORE SENIOR COUNSEL
In an article entitled "Party and party costs"
which appeared in the issues of the
Irish Law Times
of the 13th May, 2oth May and zyth May, 1961,
respectively, the anonymous author endeavours to
trace the principles in which two or more senior
counsel will be allowed upon taxation. The first
case therein considered was that of Royal Tara
China Ltd.
v.
Ferro Enamels Ltd.; this case had
been at hearing before Mr. Justice Haugh for forty-
seven days and the judge found that the defendants
had performed defective work in the making of
certain kilns for the firing of bone china which
they had contracted to make for the plaintiffs so
as to entitle the plaintiffs to rescind the contract and
claim damages. His Lordship found that the kilns
had been so unsatisfactory as to entitle the plaintiffs
to rescind the contract, and also to recover £15,145
damages.
The plaintiffs had briefed three senior counsel in
the action, the third senior counsel being the junior
who had signed the pleadings and who had taken
silk subsequently;
in addition, a full-time junior
counsel was also employed.
The taxing master
allowed fees to each of the three senior counsel and
to junior counsel. Upon an application by the
defendants to review the taxation, they submitted
that the normal Irish High Court practice was to
allow a successful party to retain only two senior
and one junior counsel at the expense of the un–
successful party, and that, despite its complexity,
this case did not warrant any departure from the
normal practice.
In giving judgment on ist July,
1960, Mr. Justice Murnaghan agreed with the
contention of the defendants, as he did not consider
adequate reasons had been given for considering
this case as exceptional, and he considered that two
senior counsel were sufficient for the plaintiffs for
the attainment of justice. Accordingly Mr. Justice
Murnaghan set aside the certificate of taxation and
remitted the case to the taxing master with a direction
to disallow the fees charged for the third senior
counsel.
In Madden
v.
Peter Kennedy Ltd., it was contended
that on taxation only one senior counsel should be
allowed. This was an action for negligence arising
out of an accident occurring in 1951 ;
the plenary
summons was issued in April 1953 before the
passing of the Courts of Justice Act, 1953 ;
the
statement of claim was not delivered until February
1958, and the defence, delivered in July 1958,
admitted liability and lodged £401 in court. The
action came on for the assessment of damages before
Mr. Justice Haugh and a jury in Michaelmas term
1959 ;
the plaintiff was awarded £450 damages and
High Court costs;
the taxing master allowed a
second senior counsel on the ground that it would
be a departure from practice not to do so. The
defendants applied for a review of taxation, and on
the 8th July 1960 Mr. Justice Murnaghan found
that the master had failed properly to apply himself
to the question whether the particular circumstances
were such as to justify him in departing from the
normal practice of allowing the plaintiff a second
senior counsel, and directed that the taxation be
remitted back to the taxing master with a finding that,
in His Lordship's view, one senior counsel was
sufficient in this case.
DECISIONS OF PROFESSIONAL
INTEREST
Executors and Administrators—-probate—costs—evidence
not supplied to defendants.
In The Estate of Sanders ;
Riches
v.
Sanders
(March 21, 1961) the plaintiffs had propounded as
executors two wills, dated 1958 and 1959, in the
alternative.
The defendant alleged want of due
execution and lack of testamentary capacity, but
gave notice of her intention to insist on proof in
solemn form and of her intention only to have the
plaintiffs' witnesses cross-examined. A request for
information of the evidence of the person who
arranged for the preparation and execution of the
1959 will was not complied with by the plaintiffs.
Scarman, J., pronouncing for the 1959 will, held
that the defendant should not be condemned on
costs because the evidence had not been given
them ; and in all the circumstances made no order
for costs.
The Times,
March 22, 1961.
Gifts—donatio mortis causa—insurance policy posted to
sister before flight.
In Re Miller (February 22, 1961) the testatrix, on
October 22, 1958, while awaiting at London Airport
for her flight to Italy, obtained a coupon for an
insurance, which provided
that
the
insurance
company named therein would pay to the
bona fide
holder thereof or his legal personal representatives
the sum of money specified if, during the 24 hours
from the date impressed on the coupon, the holder
should sustain by violent accidental means "(a)
Death .
.
. £2,000". The time and date impressed
on the coupon was 8.02 a.m. October 22, 1958.
The testatrix posted the coupon to her sister. The
postmark upon the stamp was 7.30 p.m. October 23,
1958. The testatrix wrote a letter to her sister stating
that she had sent the coupon and hoped that the
sister would not have to claim.
The aeroplane
carrying the testatrix crashed over Italy on October
22 and she was killed. On the question whether the.