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PROFESSOR OF COMMON LAW
MRrjosEPH~P~O'CoNNELL7BTA!rN.U.I.r4 South
Great George's Street, Dublin, has been appointed
Professor of Common Law to the Society in place
of Mr. Daniel J. O'Connor who has resigned.
Mr. O'Connell was admitted a solicitor in Trinity
Sittings, 1940.
PROFESSIONAL ITEMS___
Costs in Cases within Circuit Court juris
diction
THE decision in Byrne v. McMahon (81 I.L.T.R.
78) raises issues of great importance in regard to
the costs of proceedings instituted in the High'
Court where the amount of damages awarded is
within the jurisdiction of the Circuit Court. Section
12 (i) of the Courts of Justice Act, 1936, enacts in
respect of the various classes of proceedings men–
tioned therein, that where the amount recovered in
an action instituted in the High Court is within the
limit of the jurisdiction of the Circuit Court the
plaintiff shall not be entitled to recover more costs
than he would have recovered if the action had been
brought in the Circuit Court, unless the judge
hearing the action grants a special certificate under
subsection (2) that it was reasonable that the action
should have been commenced in the High Court.
In Byrne v. McMahon the plaintiff brought an
action claiming damages for negligence in the High
Court, instructing two senior and a junior counsel,
and was awarded £150 damages by the jury. The
trial judge refused to grant a certificate under
Section 12 subsection (2). The costs as drawn
included fees for two senior counsel at two thirds
of the High Court scale, which were allowed by the
Taxing Master after hearing objections.
On a
motion to review taxation Davitt, J., held that the
taxation of the costs was governed by (i) the judg–
ment of the Court by which the costs were awarded,
(2) the appropriate Rules of the Circuit Court, (3)
the appropriate Circuit Court scale, (4) the practice
of the Circuit Court. The County Registrar has no
authority under the rules to allow Council's fees
unless the judge has allowed same, and the Taxing
Master in dealing with a case under section 12 (i)
of the Courts of Justice Act, 1936,
is in the same
position.
In other words he must proceed exactly
as the County Registrar would have done if the
action had been brought and determined in the
Circuit Court.
In the case before his Lordship
he held that if an application had been made to
him at the trial he would have certified for one
senior and one junior counsel.
He accordingly
remitted the case
to
the Taxing Master with
directions to allow such fees for one senior and
one junior counsel as he in his discretion thought
fit having regard .to C.C.R. 1930, O.XL.r.23, Part
II of the Appendix to the Third Schedule and the
practice of the Circuit Court.
Solicitors will
appreciate (i) the importance of applying for a
\
special certificate under section 12 (2) of the Courts
of Justice Act, 1936, when the amount recovered is
within the Circuit Court jurisdiction; (2) failing
obtaining such a certificate, the necessity of asking
the trial judge to certify for the appropriate counsel.
Having regard to this decision, it seems unlikely
that in a case of less than abnormal difficulty the
Court will be willing
to certify for more than
one senior counsel.
In an article in the Irish Law
Times and Solicitors' Journal of 22nd March last
(q.v.) the writer commented that although the
decision on the question of costs
in Byrne v.
McMahon was limited to counsel's fees, the case
in reality opens up other far-reaching issues affecting
solicitors' costs and witnesses' expenses in such
actions. The logical inference from the decision
is that the solicitor for a plaintiff who has obtained,
say, £250 damages, should proceed to draw a
hypothetical bill for the work which he would have
done if the action had been brought in the Circuit
Court, omitting the work which he did in fact but
which he would not have done if the action had been
brought in that court, e.g., delivering a statement of
claim and reply, and counsel's fees therefor.
Directions to Advocates
" THE independence of the legal profession is con–
sidered by many authorities to be almost as important
as the independence of the Bench. Directions and
circulars issuing from administrative or executive
officers of a central government to advocates who
are not in their employment, except in the sense of
being instructed by them, have for centuries been
unknown in
this country. Even solicitors and
counsel in the full-time employment of Government
offices and local authorities can claim a full measure
of independence of executive direction as to how
they should conduct their cases in Court. All who
have a sense of the importance of this principle of
independence in our legal system will share the
dismay expressed by Mr. Derek Curtis-Bennett,
K.C., in a letter to the " Daily Telegraph " of 6th
May, that
' Treasury chiefs, alarmed at the extent
of overspending by Britons abroad, are anxious
to secure heavier penalties. Orders are going to
prosecuting counsel to seek prison sentences in
the more flagrant cases.'
The duty of prosecuting
counsel, according to Mr. Curtis-Bennett (and we
entirely agree),
' is to tell the court the facts of the
case being heard, and, if asked, to state what the
penalties are which apply, leaving it to the Court
to decide what the penalty should be.
In this
country we
do
not go
in
for
demanding
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