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relating
to
the administration or enforcement of
that act or any other act imposing taxes or duties.
(There appears to be no corresponding statutory power
in the Irish Revenue Commissioners but there is a some
what analogous provision in section
103
of the Income
Tax Act
1918.)
On the hearing of the information the magistrate
stated a case for the opinion of the Supreme Court
on
the question whether notwithstanding
the
provisions of the Income Tax 1923 as amended
the defendant in his capacity as a solicitor was
privileged, and if so to what extent, from furnishing
the information and producing
the books and
documents sought by the Commissioner of Inland
Revenue without the client's authority.
The
members of the Court of Appeal (Fair, Gresson,
Hay and North, JJ. Stanton, J. dissenting) held that
the question in the case stated should be answered
in the affirmative. The majority judgments dealt
with the common law and statute position very
fully and the general ground for the majority
decision was that the client's privilege and the
solicitor's obligation to honour it are an important
principle necessary for the administration of justice,
and that whereas the legislature is competent to
abrogate it by statute this cannot be done by a
sidewind and that in accordance with the general
principles of construction of statutes
affecting
private liberties the words of the statute under
consideration were not sufficiently direct to authorise
the court to hold that the abrogation of the privilege
was intended as a necessary consequence of the act.
Stanton J. in a dissenting judgment held that
whatever the court might think as to the propriety
and wisdom of abrogating the privilege it was
clearly competent for the legislature to do so and
in his opinion the consequence clearly flowed from
a reasonable construction of the act. The decision
is not binding on the Irish Courts but it will certainly
be worth citing if the right of the Revenue Com–
missioners here to require information from solicitors
under section 103 of the Income Tax Act 1918 is
ever challenged (Commissioner of Inland Revenue
i>.
West-Walker, 1954, New Zealand Law Reports,
Per Gresson, J. :
" No rule of law is better
settled than the rule that statutes which encroach
on the ordinary rights of the subject, whether as to
person or property, are subject to a strict construc–
tion. The Courts are presumed to incline to such
an interpretation of such statutes as will preserve
the subject's rights unless express words or clear
implication require the opposite result.
The law
regards with care the rights of individuals ;
and
unless a statute restricts those rights by language
beyond reasonable doubt they should be left un–
touched by the Courts
There is just as great, or an* even greater, necessity
to-day to guard the principle from being sapped.
I recoil from the proposition that it was the intention
of the Legislature to trample underfoot in such an
oblique fashion an old and cherished principle
established for the perfect administration of justice,
and for the protection of the confidence which
exists between a solicitor and his client.
In my
opinion,
this common-law right has been
left
untouched by the statute.
If the Legislature had
meant to alter this common-law right, it is to be
expected that it would have done so expressly
plainly and unambiguously.
Certainly it has not
done so expressly, and I do not think it can be said
to have been done by necessary implication."
Discretion of the Court to order a
successful
defendant to pay the plaintiff's costs.
In an action for possession of a dwellinghouse
which was within the protection of the Rent
Restrictions Acts on the grounds that the defendant
had committed a nuisance or annoyance to adjoining
occupiers the County Court Judge in England held
that the plaintiff had established a case of nuisance
or annoyance, but refused to make an order for
possession. He ordered the defendant to pay the
plaintiff's costs.
On appeal it was held by the
Court of Appeal (i) that although the terms of
Order 47 Rule i of the County Court Rules 1936
appeared to put no limit on the way in which a
County Court Judge could exercise his discretion as
to costs, it was not a proper exercise of the judicial
discretion, in the ordinary case where a defendant
had been wholly successful, to order such defendant
to pay the plaintiff's costs and that such an order
would be one upon which an appeal would be
entertained.
(2) However, in a possession application under
the Rent Acts, if the plaintiff establishes facts giving
the Court jurisdiction to make an order, it may
nevertheless
then withhold relief by reason of
matters of which the plaintiff had had no knowledge,
and, accordingly, there was no reason for limiting
the judge's discretion as to costs ; and consequently,
the order as to costs in this case should not be
interfered with.
Per Evershed, MR. :
" I should like to say that
it must be a very unusual thing to order the success–
ful defendant to pay the costs ; and it would only
be in exceptional cases that a judge would think it
right to make such an order. Still, this is a matter
of discretion; and unless it is shown here that the
judge erred upon some matter of principle, we should
not, according to the well established rules applicable
to such matters, vary the discretion of the judge or
seek to substitute a discretion of our own."
(Ottrvay
v.
Jones
[1955] i.
W.L.R.
707.)