The Gazette 1961 - 64

and this was taxed to 50 guineas. The second was a refresher of 50 guineas charged in respect of the same brief for the second day of the hearing and this was taxed to 30 guineas. The summons to review the taxation was heard in chambers and Plowman J. said in the course of his judgment that it appeared to him that the Taxing Master was labouring under a misapprehension as to the facts. The Taxing Master was under the impression that the plaintiffs' solicitors had marked the brief at 100 guineas simply because senior counsel for the defendant had obtained a fee of 150 guineas and his junior had his brief marked at 100 guineas under the two thirds rule. The plaintiffs were represented by junior counsel only. It transpired from affidavits filed by the solicitors concerned that the brief fee of 100 guineas had actually been negotiated. It was further held that the test to apply in determining whether the fees agreed to be paid to counsel were proper or not is whether the trustees in agreeing them had committed such a breach of trust as to be liable to pay part of it personally. This was not the case here. Further, in determining whether the fees paid are proper in amount, it is relevant to consider the complexity of the legal questions involved, the complexity of the questions of fact involved, the amount at stake, payments made in respect of interlocutory work and the standing of counsel concerned. The Taxing Master having applied the wrong test and taxed down counsel's fees as improper it was accordingly held that the objections of the plaintiff trustees to the taxation must be allowed fin Re Whittley deceased (1962) i Weekly Law Reports page 922). Solicitors' Partnership deed: Misconduct of one partner. Three solicitors were parties to a partnership deed which contained the following clause—"If during the continuance of this partnership any partner shall commit or be guilty of misconduct then and in any such case the other partners may by notice in writing expel him from the partnership." It was held by Russell J. that if two partners were guilty of misconduct then the third partner could not expel them under the foregoing clause (In Re A Solicitors' Arbitration (1962), i Weekly Law Reports, page 353). Damages for persona/ injuries : state of unconsciousness following permanent brain injury : whether incapacity to enjoy damages relevant. A woman aged twenty received serious brain injuries in a motor car accident caused by the admitted negligence of the defendant. As a result she had been unconscious for three and a half years and the medical evidence was that there was no prospect of her recovery and that she would never 34

the trial judge had been correct. Sellers L. J. said that those who took part in the administration of justice must be free from fear of civil proceedings. It had been sought to draw a distinction between actions for defamation and actions for conspiracy. Whatever the form of action there could be no difference in principle. The rule of law was that no action lay against evidence prepared, produced or procured in the course of legal proceedings. The appeal was accordingly dismissed. (Merrinan v. Vibart & anor. Solicitors Journal, August loth, A bookshop proprietor and his assistant were charged with publishing obscene articles contrary to section 2 (i) of the Obscene Publications Act, 1959 and with conspiracy to contravene the Act. Two plain-clothed police officers had bought the photo graphs in the shop. As a result of this the shop was searched and articles were seized which formed the basis of the conspiracy charges. The police officers, who were experienced in this type of work, agreed under cross-examination that they had seen thousands of similar photographs and that they did not arouse any feelings in them whatsoever. A submission that there was no case to go to the jury was rejected and the defendants were convicted on both counts. On appeal it was held that the test of obscenity was whether the effect of the article in question on the person was such as to tend to deprave or corrupt him. The court could not accept the prosecution's contention that there was such a thing as inherent obscenity. The degree of inherent obscenity had to be related to the susceptibility of the viewer. Accordingly the conviction on the charge of publishing obscene articles would be quashed. It was held also that the defendants were rightly convicted on the charge of conspiracy. The appeal was accordingly allowed in part. (R. v, Clayton, R. v. Halsey. Solicitors Journal, August loth, 1962, page 652). Trustees Costs: Counsel's Fees: Correct basis for Taxation. The plaintiff trustees, who were a bank, brought a summons for a review of taxation of their costs in an administration matter. As administrators they had issued an originating summons raising a number of questions which arose on the administration of the estate and on determination thereof it was ordered that the matter be referred to the Taxing Master to tax the costs of an incidental to the applica tion. When the matter came before the Taxing Master two items on the bill were altered. One was a brief fee for counse for the plaintiffs of 100 guineas 1962, page 649). Test of Obscenity.