265 / 364
what fees were payable as at 1st June (a) 1965
and (b) 1966 to the Land Registry on the lodgment
of a transfer of registered land for valuable con
sideration, the price being
(1) £5,000 and
(2)
£10,000.
Mr. B. Lenihan :
On 1st June 1965 the Land
Registry fee payable on the registration of a trans
fer of land for valuable consideration was £15
6s. in the case of a holding priced £5,000 and
£22 16s. in the case of a holding priced £10,000.
The corresponding fee on 1st June 1966 was
£27 2s. 6d. in the case of a holding priced £5,000
and £40 17s. 6d. in the case of a holding priced
£10,000.
Mr. Donegan :
Does the Minister not think this
is a rather disproportionate increase that cannot
be justified by the increase in costs?
Mr. B. Lenihan :
It follows the pattern of in
creases in 1956, ten years before that and ten years
before that again.
Mr. Donegan :
It seems to me to be far too high.
[22 June 1966]
CASES OF THE MONTH
Family Provision Applications
The following extract from
The New Law
Journal
of 4 August 1966 in relation to the Inher
itance (Family Provisions) Act, 1938, is of interest
having regard to the letter which appeared from
Mr. Dunne, solicitor, Kildare, in the July issue of
the
Gazette :
"Failure to report a case which deserves to stand
as a precedent for the future is a very serious
matter—and fortunately one of rare occurrence.
An example of such failure is, however, provided
by the decision of the Court of Appeal in
re
Hodgkinson
(1957), which was concerned with
s. 2
(1
a) of the Inheritance (Family Provision
Act, 1938, as amended by the Intestates' Estates
Act, 1952. Section 2 of the Act of 1938, as amen
ded, prescribes a time-limit of six months from
the date on which a grant of representation is
first taken out, for the purpose of making an
application to the court for provision for a depen
dant out of the estate. However, the section also
empowers
the court
to extend
that
limitation
period, if not to do so 'would operate unfairly' in
consequence of,
inter alia
'.
.
.
circumstances
affecting the administration or distribution of the
estate'. Re Hodgkinson was concerned with the
scope of these words. In that case the deceased,
who had deserted his wife and given her
to
believe that he had no income, left a considerable
estate to his mistress and made statements to his
executors which caused him to believe that the
testator was a bachelor. The Court of Appeal
decided that these were not 'circumstances' within
the meaning of the section. The widow knew of
her husband's death about the time of probate
and her ignorance of his financial circumstances
in no way affected 'the administration or distri
bution of the estate' by the executor. The decision
of Mr. Justice Roxburgh in re Greaves (1954)
2 All E.R. 109, and that of Mr. Justice Ungoed-
Thomas in re McNare (1964) 3 All E.R. 373
conflicted with the decision in Hodgkinson and
the Court of Appeal (Harman, Russell and Winn
L. J. J.) indicated in the most recent case on the
subject, Re Bluston, that neither could stand."
Counsels' Fees Allowable on Taxation of Costs
as Between Party and Party
Stanley v. Phillips was a running down case
which commenced in the County Court and was
subsequently transferred
to
the Supreme Court
where, following an admission of liability on the
part of the defendant, the matter was to proceed
as an assessment only. Queen's Counsel was en
gaged on behalf of the plaintiff and the defendant
objected to payment of his fee when the bill was
taxed. The Taxing Master disallowed the objection,
upon
the defendant appealed
to a
judge of
the Supreme Court who upheld the objection.
The plaintiff then appealed to the Full Court of
the Supreme Court which by a two-one majority
allowed the appeal and disallowed the defendant's
objection. It was from the decision of the Full
Court of the Supreme Court of Victoria that the
defendant subsequently appealed
to
the High
Court.
The High Court ruled in favour of the defen
dant by a four-one majority, the dissentient being
McTiernan J. In his judgment the Chief Justice
of the High Court, Sir Garfield Barwick, said :
"It is of radical importance in my opinion to
identify the question which is presented to the
Taxing Master upon objections such as were made
in this case. That question concerns the allowance
of the fees of more than one counsel. It is not
concerned, certainly not directly concerned, with
the question of the relative competence of mem
bers of the Bar or of sections of the Bar. It is
fundamentally concerned with the attainment of
justice which expended into its own elements of
law in such manner and to such extent that a just
result is able to be achieved. As it is to be supposed
that the success of the party incurring the fees of
counsel will involve the opponent in their pay
ment, the expenditure must be confined to what
is necessary, which means reasonably necessary, or
proper to ensure such a presentation of the case.''
47