The Gazette 1974

but nevertheless prevent him from exercising a free

volition as to whether he should or should not do

that act. In this case the accused understood the wrong-

fulness of act, but was debarred from refraining from

assaulting his wife fatally because of a defect of reason

due to mental illness. Griffin J. states that Henchy J.'s

test would be a correct test for Judge Deale to apply in

determining whether the act of the youth who burnt

the abbatoir in Bray was malicious. It follows that this

is not a case of legal insanity which would absolve the

youth from criminal responsibility.

Counsel for the County Council contend that they

are entitled to investigate whether the applicant was

insured against damages for fire, and, if so, is not

entitled to recover compensation under the criminal

injury code, otherwise he would be getting unjust en-

richment. As a policy of fire insurance is simply a con-

tract of indemnity, it follows that all claims of the

insured arising out of any ground of legal responsibility

vest in the insured by subrogation. T h e case of

Bally-

magauran

Co-operative

v. Cavan and Leitrim

County

Councils

(1915), 2 I.R., where it was held in a criminal

injury that the fact that the premises damaged were

insured against fire cannot be taken into consideration

when assessing the amount of compensation to be re-

covered from the County by the owner, was followed.

It follows that this question was correctly disallowed

by Judge Deale.

[Doyle v. Wicklow County Council; full Supreme

Cou r t; per Griffin J.; unreported; 14 December 1973.]

Taxation of costs. Amounts for professional witnesses

and reports should be reasonable.

Application to review taxation of costs of jury trial

held before Butler J. from 13 to 15 July 1971. T he

taxation was first held in J a nu a ry 1972, and completed

in April 1972. T h e Taxing Master set out the following

correct principles on which he acted :

(1) In the absence of any special order by the Court

costs are to be taxed on a party and party basis.

(2) In costs as between party and party, the party

awarded costs is not entitled to a full indemnity, but

only to such costs as have been reasonably or properly

incurred to enable him to conduct the litigation.

(3) Witnesses charges are to be charged on a party

and party basis in accordance with expenses reasonably

incurred.

Butler J. held that any witness whose attendance is

directed by Counsel in his advice on proofs is a neces-

sary witness, similarly if Counsel directs that any expert

or technical opinion, advice or information be sought,

the procuring of this is

prima facie

necessary. In ascer-

taining the expenses to be allowed to a witness for

attendance, Or d er 99 Rule 37 (8) of the Rules of the

Superior Courts 1970 would allow costs of travel,

maintenance and attendance, provided these are reas-

onable. It is for the party seeking the costs to produce

vouchers or other evidence of the actual expenditure.

A party should not be required in asking for a report,

i.e. a medical report, to indicate the ma x imum fee he

can pay.

Prima facie

the expense actually incurred

should be incurred, provided it is in line with similar

fees charged by professional men of similar standing.

Accordingly Butler J. directed that items 86 to 88,

90 to 95, and 97 should be remitted to the Taxing

Master for re-taxation.

As regards Counsel's fees, Butler J., having tried the

case, stated that £11,125 damages had been

recovered,

although only £1,775 had been lodged with the

defence-

As this was a complicated case, he would allow a brie»

fee to Senior Counsel of 75 guineas, with

conseque»»

increases in other items relating to Counsel's fees.

[Kelly v. Hoey; Butler J.; unreported; 18 December

1973.]

Priest-Teacher is given credit for service

a b r o a d-

Exclusion rule unconstitutional

In a reserved judgment delivered in the High

Court,

Dublin, Mr. Justice Butler held to be

u n c o n s t i t u t i o n a'

a Department of Education rule, which excluded

reli-

gious teachers from receiving credit for teaching

service

in under-developed countries.

Mr. Justice Butler granted a declaration to this etiec

to the Rev. Francis Mulloy, a member of the H°ly

Ghost Or d e r, who is attached to the teaching staff

Templeogue College, Dublin.

Father Mulloy had sued the Minister for

Educatio

and the Attorney-General claiming that the Rules f°

the Payment of Incremental Salaries to

Secondary

Teachers, 1958, as amended by the Department in 197 b

granting the benefits of the scheme to lay teachers onh

were unconstitutional.

T h e scheme was introduced to encourage

secondary

teachers to give service in under-developed

countries-

In his judgment, Mr. Justice Butler said that

Father

Mulloy had taught in Blackrock College, Dublin, fi"

olT1

1954 to 1956, being registered as a

secondary teache

under the regulations of the Department of

Educatio»

in 1955. Registration qualified a secondary teacher

be paid incremental salary by the Department in

accor-

dance with certain rules. It was difficult to know by

whom these rules were made or under what

authority-

Some were stated to have been ma de by the

Minister»

ma ny were not signed by him. T h e rules with

whi

the Court was principally concerned were not

attribute

to, or signed by anybody. None of them

appeared

him to have any statutory force or effect

and had never

been considered by the Oireachtas.

Mr. Justice Butler said the amount of the

i n c r e m e n ts

salary was calculated on the number of years

a p p r o v e

teaching service of the teacher.

Went to Nigeria

In 1956 Father Mulloy left to go to Nigeria on the

missions. He had completed his first year of

approve

teaching service after registration, so that

thereafter

had he continued teaching in Ireland

and otherwise

satisfied the regulations, he would have

been quahfie

to receive incremental salary. In Nigeria he

had

taugh*

first in a secondary school in Mbisi and, f r om

January

1960, to the school year 1965 at the Holy Ghost Colleg

in Owerri.

T h e latter was a full secondary school providing

range of tuition as extensive as and of a standard n°

lower than that given in recognised secondary

schools

in Ireland. F r om 1965 to 1968 Fa t h er Mulloy ***

assigned to a seminary in Nigeria and then returned

Ireland. Since 1968 he had been a teacher in Templ

ogue College, which was a recognised secondary school

and he had been in receipt of incremental salary. Th

present case arose because of a dispute with the Depart'

ment as to the rate at which this salary should be paid'

100