16 / 338
belief, and putting the husband to proof of his
income and assets, could put a husband into con–
siderable peril since it was usual for a husband to
have to pay his costs in the application and he could
be ordered even to pay the costs of an unsuccessful
wife. It was, therefore, right that those who put
such procedure in motion should be under a duty
to use proper caution, and it was the normal practice,
especially where the wife was in possession of the
matrimonial home and receiving some maintenance,
for the husband or his solicitors to be asked as a
preliminary step to supply information, thus elimini-
nating the possibility of proceedings which were
unnecessary and oppressive.
Mr. Small had agreed that this was the usual
practice of his firm, but had offered no explanation
as to why he had failed to take that course in the
present case, and this was particularly noteworthy
as he had notice of the existence of a mortgage and
an overdraft which were liabilities of the husband.
If proper inquiries of this nature had been made it
would have been extremely difficult to take the view
that the proceedings would be successful and it
followed that he had been unreasonable in not
making such inquiries.
There was, however, no previous authority as to
section 23 proceedings, and the propriety of making
inquiries might not have been appreciated in its true
light. He (His Lordship) was therefore not prepared
to hold that the solicitor's conduct at that stage was
such as to require him to be personally liable for
the costs of the whole proceedings.
In May, 1957, discovery had taken place and it
was one of the best known duties of solicitors to
examine closely the documents discovered to ensure
that the chances of success in the action had not been
materially affected thereby. The present case was
a classic example of the change of the face of an
action on discovery. The matter cried aloud for
a careful analysis of the documents, and in his
Lordship's view if that analysis had been made it
would have appeared clearly that the wife's appli–
cation could not succeed. The appropriate analysis
had, however, never been made nor was counsel's
opinion sought at that stage. The fact that counsel
had advised favourably in February, 1957, was of
no avail in May, 1957. In May, 1957, Mr. Small
went to the area committee in an angry mood and
chose to form, in that angry mood, a strong opinion
that he had a good case. That opinion was wrong,
but it was worse in that it was an opinion which a
solicitor who had carefully examined the material
then available could not reasonably have reached.
After February, 1957, no opinion was sought from
counsel until shortly before the hearing and he had
not then been provided with a proper analysis on
which to base his view because no such analysis
had been made. Counsel, faced with such a position,
was in a predicament and this was not the way in
which to get the most beneficial opinion. He had
advised favourably on the wife's prospects, but he
was in the position of having to give a snap opinion
and without having the advantage of an analysis.
There was no reason why Mr. Small should not
have furnished counsel with full instructions and
obtained counsel's opinion by ist August, 1957.
The fact that counsel had subsequently advised
favourably in the circumstances referred to could
not produce any cover for the past.
The wife's solicitor was determined to carry on
the litigation on the basis of his own opinion which
had become incapable of being objective. That
could not justify aggressive procedure running the
husband into ever-increasing cost and it was conduct
within the rule in Myers
v.
Elman
supra.
The husband
should be indemnified for his costs on a party and
party basis as from ist August, 1957.
(Edwards
v.
Edwards (1958) a. All E.R. 179.)
OBITUARY
MR. JAMES H. MURPHY, solicitor, died on 29th April.,
195 8, at a Dublin nursing home. Mr. Murphy served
his apprenticeship with the late Mr. Alexander
Garthan, Newry, Co. Down, was admitted Hilary
Sittings, 1900, and practised at Dundalk, Co. Louth,
as senior partner in the firm of Messrs. James J.
Murphy and Son.
MR. ALEXANDER E. DONNELLY, solicitor, died on
9th May, 1958, at Tyrone County Hospital. Mr.
Donnelly served his apprenticeship with the late
Mr. Francis Shields, Omagh, Co. Tyrone ;
was
admitted Trinity Sittings, 1905, and practised at
Omagh as senior partner in the firm of Messrs.
Donnelly and O'Doherty.
MR. RAYMOND HICKEY, solicitor, died on i8th May,.
1958, at the Mater Private Hospital. Mr. Hickey
served his apprenticeship with Mr. Valentine Miley,
12 South Frederick Street, Dublin; was admitted
Hilary
Sittings,
1942,
and
practised
at
42
St. Stephen's Green, Dublin, as a member of the
firm of Arthur Cox and Co.
REGISTRATION OF TITLE ACTS, 1891
AND 1942 ISSUE OF DUPLICATE
LAND CERTIFICATES
Applications
have been
received
from
the
registered owners mentioned in the Schedule annexed
hereto, for the issue of Certificates of Title in substi-
12