326 / 364
2. That if the fractured clavicle had been plea
ded, the defendants would probably have lodged
£1,500 with their defence and that if the case had
proceeded to trial before the same jury, with the
fracture of the clavicle taken into account as one
of the items of injury, the jury would probably
have awarded the plaintiff £1,335 damages;
3. That, accordingly, the plaintiff had lost an
estimated sum of £100 through the failure of the
defendants to perform their contracts with her
and she was therefore entitled to a decree for
£100 against them both.
[Margaret McGrath v
Patrick Kiely
and
Michael Powell (1965) I.R. p. 497].
Solicitors' Letters
Enquiries have been received by the Society
from time to time from solicitors regarding the
practice to be observed when handing over docu
ments to a colleague pursuant to the authority of
a client. The following appears to be the legal
position in the matter :
On payment of a solicitor's bill a client
is
entitled to the possession of letters written to the
solicitor by third parties, but not to copies of
letters written by
the solicitor to third parties
unless
they are paid for by the client
(in re
Thompson 1855, 20 Beav. 545).
A solicitor is not bound to deliver to his client,
on the termination of his retainer, letters addressed
to him by his client, nor copies in his letter book
of his own letters to his client (in re Wheatcroft
1877, 6 Gh. D. 97).
In Mater v. Macalister (1952) N.Z.L.R. 257,
the Supreme Court of New Zealand held that the
defendant's firm of solicitors practising in New
Zealand, were liable to surrender to the plaintiff
carbon copies. of letters which they had written
to third parties on the plaintiff's behalf. In re
Thompson was distinguished on the ground that,
while a solicitor could not be expected to mutilate
a letter book kept for his own protection by tear
ing out pages and delivering them to the client,
he could and should hand over carbon copies
kept in the case file.
Town Planning
A local planning authority served on the defen
dant an enforcement notice under Section 45 of
the Town and Country Planning Act, 1962, re
quiring him to remove from his land caravans
which had been placed thereon without the per
mission required by Part III of the Act. The
defendant failed to comply with the notice within
twenty-eight days of
its
taking effect and an
information was preferred against him. The notice
had been sent to the defendant by prepaid regis
tered post and a certificate of delivery, purporting
to be signed by him was produced at the hearing
of the information before the Justices, but his
signature was not identified, nor was the certificate
of delivery put in documentary form to him when
he gave evidence to see whether he identified or
acknowledged it. The defendant denied that he,
or any agent of his, had received the notice and
it did not appear that he was cross-examined or
challenged on that assertion. The justices were of
opinion that since the notice was posted by pre
paid A.R. registered post properly addressed to
the defendant as evidenced by the Post Office
delivery receipt, service of it was effected in accor
dance with Section 214 (i)
(c) of the 1962 Act
and they convicted the defendant. The defendant
appealed.
James J., said that since the requirements of
Section 214
(i)
(c) of the Town and Country
Planning Act, 1962, had been complied with, the
enforcement notice had been duly served and the
defendant
rightly
convicted. An
enforcement
notice was not notice of a forthcoming event,
such as the hearing of the appeal or an intended
prosecution under the Road Traffic Acts, and
proof of its receipt was not necessary to support
proceedings for non-compliance, provided that a
reasonable time was given between the date of its
posting and the date by which compliance with
i.'s terms was required.
Lord Parker, C.J., and Marshall J., agreed.
Appeal dismissed.
[Moody v. Godstone Rural
District Council,
Solicitors' Journal,
Friday 9th
September 1966 (Vol. 110) p. 687, the case coming
before the Queen's Bench Division on 5th May
1966 and a case stated by the Surrey Justices
Sitting at Dorking]
Safe System of Work
The plaintiff, a dock worker, was employed in
stacking some bundles of plywood. The system
adopted by the gang of which he was a member
was to build a stock of three bundles horizontally,
and then lean further bundles against the stack.
Some of the stacks slipped and he was injured.
He claimed damages for negligence from his em
ployers, alleging that the system of working was
unsafe.
It was held that the action failed. Although it
might have been possible to have built the stack
higher, and so have provided a firmer support for
the other bundles, the gang thought it was un
necessary to do so. It was therefore not a negligent
act on their part, and was shown that it had been
the cause of the collapse. [Kelly v. Manchester
Ship Channal, I.L.T.R. & S.J. (Vol. C) p. 308].
Ill