The Gazette 1911-12

[AUGUST, 1911 >

The Gazette of the incorporated Law Society of ireiahd.

38

upon his condition when he was first profes sionally attended to. Evidence was given on behalf of the defendant that another doctor in the like circumstances would have acted differently. For this reason the question of the amount of damages largely, if not wholly, depended upon the opinion the jury formed of the nature and character of the medical attention that the deceased had in fact received at the hands of Dr. Gatchell. This was not a class of case where the evidence of Dr. Gatchell could properly have been taken on commission. I know the outcry that would be raised if such an order had been made. The discretion of the Taxing Master does not extend so far as to enable him to disallow the costs of the main witness in the case, and the sum disallowed should properly have been allowed. I am far from deciding that the Taxing Master should have exclusive regard to everything said in every senior counsel's direction of proofs. Dr. Gatchell's evidence could not have been presented to the jury on paper. It was upon his evidence that the damages were given. Without it the damages would not have been given. In sending the case back to the Taxing Master, as I do, I direct him that the principle he should adopt in the taxation of the costs is that while he is riot to have exclusive regard to counsel's directions of proofs, it is not within his right to disallow the costs of the main witness upon whose evidence the entire of the case depended. (Reported I.L.T.R., Vol. xlv., page 203.) Finance (1909-10) Act, 1910. THK following appeared in the Parliamentary Papers of 28th July :— Q. Sir John Lonsdale. —To ask Mr. Chan cellor of the Exchequer, if the benefits of sub-section 2 of Section 61 of The Finance (1909-10) Act, 1910; only apply to the property of a deceased person where a fixed duty is payable and where the gross assets do not exceed £500. [27th July, 1911.] A. Mr. Hobhouse.— The Answer is in the affirmative, for the reason that, in other than fixed-duty cases, the duty, under the provisions of The Finance Act, 1894, is only I chargeable upon the net value of the pro- i perty after deduction of the charges or i liabilities referred to in the sub-section in I question. [27th July, 1911.J

me in pursuance of the judgment therein pro nounced in Court on March 7, 1911 ; entered in . office March 22, 1911. (2) I refer to the said objection dated May 9, 1911, and the letter of the plaintiff's solicitor dated May 10, 1911, requiring my report on objection. (3) Objection to No. 82 of the plaintiff's costs. This item—amount, ^10 2s.—is claimed for the travelling expenses of Doctor Gatchell as a witness from London to Sligo, /7 14s., and fees for four days at £2 2s.—£8 8s. On hearing of the objection, the affidavits of the plaintiff's solicitor, filed April 29, 1911, and May 5, 1911, and the affidavit of one of the solicitors for the defendant, filed April 29, 1911, were read, as also the several exhibits therein referred to. Order XXXII., rule 4, was also cited on behalf of the defendant. In the circumstances of the case I formed the opinion that as against the defendant the plaintiff was not entitled to any of the expenses in question, and, accordingly, I overruled the objection. Dodd, J., in giving judgment, said :—My difficulty in deciding the point is greatly increased by the fact that both solicitors were so eminently reasonable. They seem to me to have conducted this case in a way that deserves encomium from a Judge. The plaintiff's solicitor was not seeking in any way to increase the costs, and the solicitors for the defendant were not in any way interested in embarrassing their adversary. This case illustrates the old rule that if a party is going to admit any fact he ought to admit it fully and frankly, and without any reserve whatever. If it had been conceded that this was only a question of damages, the position might have been different. There is a question of principle involved. The admission of fact that the death of the plaintiff's husband was caused by the act of the defendant would not in the circum stances have warranted any counsel at the bar in dispensing with the presence of the doctor. I quite sympathise with the difficulties of the Taxing Masters when they say they are confronted with an array of witnesses, making every possible addition to the costs. The question of damages depended upon the view that the jury might take of the action of the doctor who had attended the deceased. One doctor took a trivial view of the injury, and said that if he had treated the deceased the man would not have died. And I have never heard that in such a case a medical witness who actually treated the patient ought not to be produced. Here a good deal naturally turned upon the treat ment that the deceased had received, and