The Gazette 1911-12

The Gazette of the incorporated Law Society of ireiahd.

[AUGUST, 1911

me in pursuance of the judgment therein pro

nounced in Court on March 7, 1911 ;

entered in .

office March 22, 1911.

(2)

I refer to the said objection dated May 9,

1911, and the letter of the plaintiff's solicitor dated

May 10, 1911, requiring my report on objection.

(3) Objection to No. 82 of the plaintiff's costs.

This item—amount, ^10 2s.—is claimed for the

travelling expenses of Doctor Gatchell as a witness

from London to Sligo, /7 14s., and fees for four days

£2

2s.—£8 8s. On hearing of the objection, the

affidavits of the plaintiff's solicitor, filed April 29,

1911, and May 5, 1911, and the affidavit of one of

the solicitors for the defendant, filed April 29, 1911,

were read, as also the several exhibits therein

referred to. Order XXXII., rule 4, was also cited

on behalf of the defendant.

In the circumstances

of the case I formed the opinion that as against the

defendant the plaintiff was not entitled to any of

the expenses

in question, and, accordingly,

overruled the objection.

Dodd, J., in giving judgment, said :—My

difficulty in deciding the point is greatly

increased by the fact that both solicitors

were so eminently reasonable. They seem

to me to have conducted this case in a way

that deserves encomium from a Judge. The

plaintiff's solicitor was not seeking in any

way to increase the costs, and the solicitors

for the defendant were not in any way

interested in embarrassing their adversary.

This case illustrates the old rule that if a

party is going to admit any fact he ought to

admit it fully and frankly, and without any

reserve whatever.

If it had been conceded

that this was only a question of damages,

the position might have been different.

There is a question of principle involved.

The admission of fact that the death of the

plaintiff's husband was caused by the act

of the defendant would not in the circum

stances have warranted any counsel at the

bar in dispensing with the presence of the

doctor.

quite

sympathise with

the

difficulties of the Taxing Masters when they

say they are confronted with an array of

witnesses, making every possible addition to

the costs. The question of damages depended

upon the view that the jury might take of

the action of the doctor who had attended

the deceased. One doctor took a trivial view

of the injury, and said that if he had treated

the deceased the man would not have died.

And I have never heard that in such a case

a medical witness who actually treated the

patient ought not to be produced. Here a

good deal naturally turned upon the treat

ment that the deceased had received, and

upon his condition when he was first profes

sionally attended to.

Evidence was given

on behalf of the defendant that another

doctor in the like circumstances would have

acted differently.

For

this

reason

the

question of the amount of damages largely,

if not wholly, depended upon the opinion

the jury formed of the nature and character

of the medical attention that the deceased

had in fact received at the hands of Dr.

Gatchell. This was not a class of case where

the evidence of Dr. Gatchell could properly

have been taken on commission.

I know the

outcry that would be raised if such an order

had been made. The discretion of the Taxing

Master does not extend so far as to enable

him to disallow the costs of the main witness

in the case, and the sum disallowed should

properly have been allowed.

I am far from

deciding that the Taxing Master should have

exclusive regard to everything said in every

senior counsel's direction of proofs.

Dr.

Gatchell's evidence could not have been

presented to the jury on paper.

It was upon

his evidence that the damages were given.

Without it the damages would not have been

given.

In sending the case back to the

Taxing Master, as I do, I direct him that

the principle he should adopt in the taxation

of the costs is that while he is riot to have

exclusive regard to counsel's directions of

proofs, it is not within his right to disallow

the costs of the main witness upon whose

evidence the entire of the case depended.

(Reported

I.L.T.R.,

Vol. xlv., page 203.)

Finance (1909-10) Act, 1910.

THK following appeared in the Parliamentary

Papers of 28th July :—

Sir John Lonsdale.

—To ask Mr. Chan

cellor of the Exchequer, if the benefits of

sub-section 2 of Section 61 of The Finance

(1909-10) Act,

1910; only apply

the

property of a deceased person where a fixed

duty is payable and where the gross assets

do not exceed £500.

[27th July,

1911.]

Mr. Hobhouse.—

The Answer is in the

affirmative, for the reason that, in other

than fixed-duty cases, the duty, under the

provisions of The Finance Act, 1894, is only

chargeable upon the net value of the pro-

perty after deduction of the charges or

liabilities referred to in the sub-section in

question.

[27th July,

1911.J