The Gazette 1949-1952

Sir Walter Monckton, K .C ., and Mr. Ifor Lloyd appeared for the applicants ; Mr. Victor Russell for the Attorney-General. Mr. Justice Hodson, giving judgment, said that it was common knowledge that in the matter of the execution o f wills and other documents reliance could be placed on the maxim“ omnia praesumuntur rite esse acta,” but in cases o f common form grants a safeguard was provided by the rules, and the official had taken the point that there was no reference to the subscription in the attestation clause, and that it was not sufficient to rely on the word “ attest.” It was clear that it was unnecessary in the attesta­ tion clause to cover every word in section 9. o f the Wills Act, 1837, and it was to be observed that established books o f precedent did not do so. The applicants had contended that the word “ attest ” in the attestation clause was sufficient without the word “ subscribe.” The history of the words had been considered, and he had been referred to Blackstone’ s Commentaries (4th ed., vol. 2, p. 260). “ Attestation ” in its primary meaning involved witnessing, and witnessing only, but when it was applied to documents it was now a reasonable construction o f the word to say that it involved the act of writing. That was borne out by the language used in certain authorities which clearly showed that the Judges used the word attestation in that sense. In his opinion the word “ attest ” was wide enough to coyer “ subscribe,” and for that reason the wording o f the clause which had been questioned was sufficient. He would make a declaration accordingly. LEGAL AID COSTS OF CRIMINAL APPEALS In the case of the People v. Daly, the President of the High Court gave judgment on 21st April, 1950, on an appeal to the High Court from the Taxing Master on an objection taken by the Attorney Gen­ eral to part o f the taxed costs of the appeal of the accused against a conviction of murder. In the Central Criminal Court, counsel and solicitors had been assigned to the accused on the usual terms. The accused was convicted, and counsel and solicitors received the token costs and fees on the scale prescribed by the Department o f Finance in such cases. There is no statutory or other authority for this scale o f costs, and the State, m fact, appear to be under no liability to make any payment to counsel or solicitors assigned tor the defence. On the appeal from the Central Criminal Court the

accused successfully applied for the assignment of the same counsel and solicitors for the purpose of the appeal. The position in regard to the costs of the appeal where counsel and solicitors are assigned is governed by Section 34 of the Courts of Justice Act 1924) and Section 5(1) of the Courts of Justice Act 1928, which oblige the Court, on making an order for a retrial, to order that the costs o f the appeal and the new trial shall be paid by the State. The same provision applies in the case of an appeal from the Court o f Criminal Appeal to the Supreme Court on a point o f law of exceptional public importance. In this case, the bill o f costs included : 1 . The costs of an appeal to the Court o f C riminal Appeal after a first trial and conviction. 2. The costs o f a subsequent successful appeal to the Supreme Court on a point o f law of exceptional public importance. 3. The costs o f a new trial directed by the Supreme Court and resulting in the conviction o f the appellant. The costs o f these proceedings (excluding the first trial in the Central Criminal Court) were ordered to be paid by the State under Section 5 o f the Courts o f Justice Act 1928. ' The total bill, as taxed reached what the President described as the alarming figure of £1,087, taxed by analogy to the High Court scale, in the absence of a prescribed scale o f costs in criminal cases. The Attorney General objected to the Taxing Master’s certificate on the ground that the Taxing Master was bound by the scale prescribed by the Department o f Finance in respect o f the original assignment. Among other- arguments, it was submitted for the State that, when counsel and solicitor accepted the assignment on the appeal there was no retainer by the client, and no right o f recovery by the solicitor against the client for the costs o f the appeal—the sole remedy being against the State. The President o f the High Court rejected this argument and held that the ordinary relationship o f solicitor and client existed, notwithstanding the assignment, and, furthermore, that the scale o f fees laid down by the Department of Finance had no relevance to the taxation o f the costs o f the appeal and subsequent proceedings under the Order o f the Court. He commented upon the inadequacy o f the token fees paid by the Dept, of Finance to counsel and solicitors for the defence o f persons charged with murder who are unable to provide the funds for their own defence, and refused to accept this scale as binding on the Court, and directed that the appeal against the Order of the Taxing Masters be dismissed. N ote .— Since the above note was printed the Supreme Court has reversed the decision of the President o f the High Court. 9