15 / 338
of the Road Traffic Act, 1930, had accordingly not
been complied with.
The Lord Chief Justice said that after a not very
serious accident the commissioner decided to prose–
cute the defendant for careless driving and a notice
was sent of intended prosecution on 2oth June,
10 days after the accident, by registered post to the
address which he had given to the police officer
who investigated the accident at the time. On
27th June the notice and its envelope was returned
to the police by the Post Office. The defendant did
not in fact receive the notice because he was away
from his home so that no registered post could be
taken in. The prosecutor made no inquiries as to
the whereabouts of the defendant nor did he consult
the London Passenger Transport Executive who, to
his knowledge, were his employers. On 2nd July
a police officer saw the defendant at his home and
personally served on him a second notice and ex–
plained what had happened to the original notice.
The question was whether the first notice had
been " served " or not. In Regina
v.
County of
London Quarter Sessions Appeals Committee, ex
parteRossi((i956 2 W.L.R. 800) the Court of Appeal
decided that where a notice was served or purported
to be served by registered post it was not enough
to prove that it was correctly directed, stamped, and
posted. It could be shown that the letter was never
delivered, and, if so, there had not been service.
They had reversed the decision of the Divisional
Court which had held that there had been service.
It might be that one could go to court and ask for
leave to serve.
They were bound to decide that there had not been
service. The magistrate's decision was right and the
appeal must be dismissed. Mr. Justice Hilbery ana
Mr. Justice Donovan agreed.
(Beer
v.
Davies [1958] 2. All E.R. 255.)
N0#. Sect. 55 (2) of the Road Traffic Act, 1933
does not prescribe that a notice of intended
prosecution must be served personally by the
.Garda, although it has been customary to do so.
Solicitors held liable for proportion of costs on ground of
no reasonable prospects of success after order of
discovery.
Mr. Justice Sachs, affirming the Registrar's report,
made an order making the firm of solicitors who
had acted for Mrs. Edwards, of Kew Gardens,
Surrey, in an application for an order against her
husband, Mr. Fielding Edwards, on the ground that
he had wilfully neglected to provide her with reason–
able maintenance under section 23 of the Matrimonial
Causes Act, 1950, which had been dismissed on
2ist October, 1957, personally liable for the costs
incurred in the application after August, 1957, at
which date, his Lordship said, they should have
come to the conclusion that the application had no
reasonable prospects of success.
Mr. Justice Sachs said that he felt bound to re–
iterate that if the wife's advisers had acted reasonably
in accepting certain figures relevant to the husband's
financial position, and in advising the wife to disclose
certain figures relevant to the husband's financial
position, and in advising the wife to disclose certain
charges she had been making on the husband's
accounts at certain stores, the hearing of her appli–
cation could have been disposed of in one day
whereas it had taken two .
.
At the conclusion of the hearing and after the
wife's application had been dismissed, counsel for
the husband had made an application that the wife's
solicitors should be made personally liable for the
costs of the proceedings, or for the costs incurred
therein after discovery had taken place, or for the
costs of copying unnecessary documents. His
Lordship had thereupon directed that the matter
should be referred to a registrar for a report
inter
alia
on the extent to which the husband's solicitors
had conducted the case on her behalf, and that report
was now before him and was to be adopted.
The application of the solicitors for the husband
raised matters of serious importance. The basis of
the Court's jurisdiction to make solicitors personally
liable for costs had been explained in Myers
r.
Elman
((1940) A.C. 282), as the duty of solicitors as officers
of the Supreme Court to conduct litigation with
due propriety. The conduct complained of must be
such as to involve a failure on the part of the solicitor
concerned to promote the cause of justice.
Its
purpose was not to punish but to protect a completely
innocent party. The mere fact that the litigation
failed or that there was an error of judgment or
mere negligence was not sufficient; there must be
something which amounted to a serious dereliction
of duty and which was gross.
It was not normally necessary to establish
mala
fides
and no imputation whatsoever had been made
against the honesty of the solicitor having the con–
duct of the wife's case, in the present matter. The
class of act concerned were those in which there was
an abuse of the process of the Court or oppressive
conduct generally, and since that conduct had been
established the matter was still one of discretion,
to be exercised carefully and with regard
to
the
repercussions of such an order being made.
The first issue was whether the wife's solicitors
were in such grave fault in their conduct of the case
as to make it right that they should bear the costs.
It had to be borne in mind that an application under
section 23 of the Act of 1950 had special features.
The wife, by swearing an affidavit of optimistic
ii