The Gazette 1961 - 64

TWO OR MORE SENIOR COUNSEL In an article entitled "Party and party costs" which appeared in the issues of the Irish Law Times of the 13th May, 2oth May and zyth May, 1961, respectively, the anonymous author endeavours to trace the principles in which two or more senior counsel will be allowed upon taxation. The first case therein considered was that of Royal Tara China Ltd. v. Ferro Enamels Ltd.; this case had been at hearing before Mr. Justice Haugh for forty- seven days and the judge found that the defendants had performed defective work in the making of certain kilns for the firing of bone china which they had contracted to make for the plaintiffs so as to entitle the plaintiffs to rescind the contract and claim damages. His Lordship found that the kilns had been so unsatisfactory as to entitle the plaintiffs to rescind the contract, and also to recover £15,145 damages. The plaintiffs had briefed three senior counsel in the action, the third senior counsel being the junior who had signed the pleadings and who had taken silk subsequently; in addition, a full-time junior counsel was also employed. The taxing master allowed fees to each of the three senior counsel and to junior counsel. Upon an application by the defendants to review the taxation, they submitted that the normal Irish High Court practice was to allow a successful party to retain only two senior and one junior counsel at the expense of the un– successful party, and that, despite its complexity, this case did not warrant any departure from the normal practice. In giving judgment on ist July, 1960, Mr. Justice Murnaghan agreed with the contention of the defendants, as he did not consider adequate reasons had been given for considering this case as exceptional, and he considered that two senior counsel were sufficient for the plaintiffs for the attainment of justice. Accordingly Mr. Justice Murnaghan set aside the certificate of taxation and remitted the case to the taxing master with a direction to disallow the fees charged for the third senior counsel. In Madden v. Peter Kennedy Ltd., it was contended that on taxation only one senior counsel should be allowed. This was an action for negligence arising out of an accident occurring in 1951 ; the plenary summons was issued in April 1953 before the passing of the Courts of Justice Act, 1953 ; the statement of claim was not delivered until February 1958, and the defence, delivered in July 1958, admitted liability and lodged £401 in court. The action came on for the assessment of damages before Mr. Justice Haugh and a jury in Michaelmas term 1959 ; the plaintiff was awarded £450 damages and High Court costs; the taxing master allowed a

second senior counsel on the ground that it would be a departure from practice not to do so. The defendants applied for a review of taxation, and on the 8th July 1960 Mr. Justice Murnaghan found that the master had failed properly to apply himself to the question whether the particular circumstances were such as to justify him in departing from the normal practice of allowing the plaintiff a second senior counsel, and directed that the taxation be remitted back to the taxing master with a finding that, in His Lordship's view, one senior counsel was sufficient in this case. DECISIONS OF PROFESSIONAL INTEREST Executors and Administrators—-probate—costs—evidence not supplied to defendants. In The Estate of Sanders ; Riches v. Sanders (March 21, 1961) the plaintiffs had propounded as executors two wills, dated 1958 and 1959, in the alternative. The defendant alleged want of due execution and lack of testamentary capacity, but gave notice of her intention to insist on proof in solemn form and of her intention only to have the plaintiffs' witnesses cross-examined. A request for information of the evidence of the person who arranged for the preparation and execution of the 1959 will was not complied with by the plaintiffs. Scarman, J., pronouncing for the 1959 will, held that the defendant should not be condemned on costs because the evidence had not been given them ; and in all the circumstances made no order for costs. The Times, March 22, 1961. Gifts—donatio mortis causa—insurance policy posted to sister before flight. In Re Miller (February 22, 1961) the testatrix, on October 22, 1958, while awaiting at London Airport for her flight to Italy, obtained a coupon for an insurance, which provided that the insurance company named therein would pay to the bona fide holder thereof or his legal personal representatives the sum of money specified if, during the 24 hours from the date impressed on the coupon, the holder should sustain by violent accidental means "(a) Death . . . £2,000". The time and date impressed on the coupon was 8.02 a.m. October 22, 1958. The testatrix posted the coupon to her sister. The postmark upon the stamp was 7.30 p.m. October 23, 1958. The testatrix wrote a letter to her sister stating that she had sent the coupon and hoped that the sister would not have to claim. The aeroplane carrying the testatrix crashed over Italy on October 22 and she was killed. On the question whether the.