The Gazette 1958-61

salary of £500 a year. At the trial the principal

witness for the plaintiff company was one P, who

controlled the company though he was not a director.

McNair, J., rejected much of the evidence given

by P but gave judgment for the plaintiff company

on the claim and counter-claim on the ground that

the defendant had not made out his case on either

issue. McNair, J., stated that he attached little weight

or credibility to the evidence of either P or the

defendant; he refused to make any order as to costs

in view of the impression he had formed of P's

evidence, and refused leave to appeal on that issue.

The plaintiff company appealed.

Jenkins, L.J., said that there were certain statutory

difficulties in the way of the appeal. Section 50 (i)

of the Act of 1925 and Ord. 65,1'. i, made the award

of costs subject to the discretion of the Judge, and

Section 31 (i) made such an award unappealable

without leave.

The plaintiffs contended that, on

the authorities, an appeal would lie without leave if

the judge had taken into account wholly irrele–

vant matters, or exercised his discretion without

proper material. In particular, it was said that both

P and the defendant had given false evidence; they

cancelled each other out and so costs ought to follow

the event. That was an unimpressive argument:

once it was conceded that the credibility and conduct

of the parties were relevant to the exercise of dis–

cretion, it followed that the trial judge was in the

best position to decide the question. The plaintiffs

had relied on Hudsons, Ltd.

De Halpert (1913),

108 L.T. 416, and Hong

A. & R. Brown, Ltd.

(1948) i K.B., 515 ; but if the first case meant that

a company could not be penalised in costs for mis-

statements by its representatives in evidence, it was

wrong; and in the second case the observations of

Lord Green, M.R., could not be taken to go beyond

the observations of Lord Cave in Donald Campbell

and Co. Ltd.

Pollak (1927) A.C. 732, at p. 811,

which showed that where the judge had limited the

matters taken into account to those concerned with

the litigation, the statute prohibited the entertain–

ment of an appeal. That case had cut down a certain

latitude which the Court of Appeal had previously

permitted themselves. The court could not entertain

such an appeal without leave unless it could be said

that the judge did not in truth exercise his discretion

at all. That meant that the case must be one of the

type to which Lord Cave had referred, where the

judge's discretion had been based on some mis–

conduct wholly unconnected with the cause of

action, or on some wholly irrelevant consideration.

In the present case the judge had exercised his dis–

cretion on matters which were wholly relevant to

the action, and having regard to the statutory pro–

visions the appeal could not be entertained.

Parker and Pearce,

L.JJ

., agreed. Appeal dis–

missed.

(Bayliss-Baxter

Sabath (1958) 2 All E.R. 209.)

Note.—

Section 5 2 of the Judicature Act (Ireland)

1877, corresponds to Section 31 (i) of the Judicature

Act, 1925.

OBITUARY.

MR. JOHN J. A. O'HARE, solicitor, died on the i8th

June, 1958, at his residence, 29 Castlerwood Avenue,

Rathmines, Dublin.

Mr. O'Hare served his apprenticeship with the

late Mr. James Tanham, 13 Westmoreland Street,

Dublin; was admitted in Easter Sittings 1934,

and practised at 25 Bachelor's Walk, Dublin.

REGISTRATION OF TITLE ACTS,

1891 and 1942.

Notice.

FOLIO 13698,

COUNTY TIPPERARY.

Registered Owner :

PATRICK TIERNEY.

The Registered Owner has applied for a Duplicate

of the Certificate of Title specified in the Schedule

hereto which is stated to have been lost or inadver–

tently destroyed.

A Certificate will be issued for all the lands in

Folio 29036, County Tipperary, in which the above

described lands are now comprised unless notifi–

cation is received in this Registry within 28 days

from the date of this Notice that the said Certificate

of Title is in the custody of a person not the

Registered Owner. Such notification should state

the grounds on which the Certificate is retained.

Dated this 28th day of June, 1958.

JOSEPH O'BYRNE,

Registrar of Titles.

SCHEDULE.

Land Certificate of Patrick Tierney to 6a. ir. 33p.

of the lands of Bellevue situate in the Barony of

Ormond Lower and County of Tipperary, being the

lands comprised in said Folio.

1. Registered Owner, James Ryan. Folio Number,

10200, County Tipperary, Lands of Lisheen in the

Barony of Eligarty containing I2a. or. op.

2. Registered Owner, Edward Lysaght. Folio

Number 4042, County Limerick.

Lands of

Thomond Row in the Barony of City of Limerick

and County of Limerick, containing a small plot

situate on the west side of a road leading south from

Thomond Row being the lands comprised in the

said Schedule.

THE REGISTRY.

SOLICITOR required to manage practice of deceased solicitor.

Town in Lienster. Box No. Aiyy.

LADY SOLICITOR, presently employed desires change, preferably

Dublin. Box No. Bzzj.