252 / 270
GAZETTE
JULY-AUGUST
1
entitled to be remunerated. Section 5
of the Act of 1870 provides (inter
alia), in relation to such an
agreement, that it shall not affect the
amount of or any rights or remedies
for the recovery of any costs payable
to the client by any other person, and
that any such other person may
require any costs payable by him to
the client to be taxed according to the
rules for taxation of costs unless
otherwise agreed, provided however
that the client who has entered into
such an agreement shall not be
entitled to recover from any other
person under any order for the
payment of costs embraced by such
agreement more than the amount
payable by the client to his own
solicitor under the agreement. The
Court considered that if this was the
basis for the limitation on costs
imposed in the Master's Order then it
appeared that the order made by the
Master went far beyond a mere
compliance
with
the
proviso
contained in Section 5 of the Act of
1870. The Court further considered
that if this was the issue before it it
would be simply decided by holding
that the proviso in Section 5 of the
Act of 1870 did not warrant or
justify confining the Plaintiffs' costs
to outlay and counsel's fees where the
proceedings were conducted by the
Plaintiffs' law agent as a salaried
solicitor.
The Court considered that the
more important questions to be
decided were these:
1. What was the appropriate Order
if that was not it?
2. On whom did the onus lie in such
a situation to prove that no more
than the amount of the costs
payable by the client to his owh
solicitor was being recovered?
In reviewing the relevant authori-
ties the Court referred to the common
law principle approved by Cousins-
Hardy M.R. in
Gundery
v.
Sainsbury
[1910] 1LB 645, namely, that costs
must always be considered as an
indemnity to the person entitled to
them and must not be imposed as a
punishment on one party or given as
a bonus to the other. The Court
considered the criteria laid down by
the Court of Appeal in
Re East-
wood, deceased
[1975] Ch. 112, at
p. 113) for cases where the person
entitled to costs was represented by a
salaried solicitor (the Treasury Solici-
tor in that particular case) and which
(briefly stated) were as follows:
1. It was proper to deal with the
taxation of costs as though the bill
were that of an independent
solicitor.
2. There was no reason to suppose
that the conventional method was
other than appropriate to the case
of both independent solicitors and
employed solicitors.
3. It was a sensible and reasonable
presumption that the figure
arrived at on this basis would not
infringe the principle that the
taxed costs should not be more
than an indemnity to the party
against the expense to which he
has been put in the litigation.
4. There might be certain cases in
which it became clear that the
principle would be infringed if the
method of taxation appropriate to
an independent solicitor's bill was
entirely applied; it would be
impractical and wrong in all cases
of employed solicitors to require a
total exposition and breakdown of
the activities and expenses of the
department with a view to ensur-
ing that the principle was not
infringed.
Held
(per Finlay P.) that the order
made by the Master be varied and an
order entered in lieu thereof that the
final judgment to the Plaintiffs be
with default costs as provided in the
Rules of Court and in addition a
measured sum of £35 in respect of
the hearing before the Master (thus
following the practice until recently
followed by the Master of allowing
costs on the default scale) and also a
sum for measured costs of the
hearing before him.
The Governor and Company of the
Bank of Ireland v. Thomas P. Lyons
- High Court (per Finlay P.) - 2
November 1979 — unreported.
CONSTITUTION
Sections 15,16 and 18 of the Local
Government (Planning
& De-
velopment) Act, 1976 not repugnant
to the Constitution.
The Plaintiff (appearing in person)
sought a declaration that Sections
15, 16 and 18 of the Local
Government (Planning & Develop-
ment) Act, 1976 were repugnant to
the Constitution.
Section 15 provides for the
lodgment by an appellant to the
Planning Board ("the Board") of a
deposit of £10 with the Board and for
its return after the determination of
the appeal unless the Board deems
the appeal to have been vexatious.
Section 16 provides that the
Board, except when so directed by
the Minister (for the Environment),
has an absolute discretion whether or
not to hold an oral hearing or any
reference or appeal to the Board, and
further provides for the service of
notice on any person who sought an
oral hearing, of the Board's decision
not to hold an oral hearing of any
such person a right to apply to the
Minister to give a direction to the
Board to hold an oral hearing.
Section 18 provides that where the
Board is of the opinion that a
reference or appeal is vexatious or is
being unnecessarily delayed by any
party the Board, having given the
prescribed period of notice (not less
than seven days) to that party, may
proceed to determine the appeal
notwithstanding the fact that no
submission has been made to the
Board by that party in relation to the
reference or appeal.
The Court noted that the only
personal interest which the Plaintiff
was entitled to claim in the outcome
of the proceedings arose from the fact
that he resided some four miles away
from the questioned development (i.e.
Raybestos Manhattan in Co. Cork).
Because the Plaintiff had not been
professionally represented either in
the High Court or the Supreme
Court, because the question of his
standing to raise the constitutional
issue had not been pleaded by the
Defendants, and because of the
urgency and gravity of the complaint
against the development in question,
the Supreme Court was prepared to
assume, without so holding, that in
the particular circumstances the
Plaintiff had "sufficient standing to
mount an attack on the relevant
statutory provisions on the ground of
alleged unconstitutionality."
With regard to Section 15, the
Plaintiff submitted that by the
imposition of a deposit of £10 a
restriction which he described as
being contrary to the democratic
nature of the Constitution was
imposed on persons wishing to
appeal against a decision of a
planning authority to grant a
permission, and that thereby a
discrimination was made between
those who had money and those who
had not, contrary to Article 40.1 of
the Constitution.
(1) Held:
(per O'Higgins C.J.)
That this submission was without
substance; that the purpose of