The Gazette 1946-49

PROFESSOR OF COMMON LAW MRrjosEPH~P~O'CoNNELL7BTA!rN.U.I.r4 South Great George's Street, Dublin, has been appointed Professor of Common Law to the Society in place of Mr. Daniel J. O'Connor who has resigned. Mr. O'Connell was admitted a solicitor in Trinity Sittings, 1940. PROFESSIONAL ITEMS___ Costs in Cases within Circuit Court juris diction THE decision in Byrne v. McMahon (81 I.L.T.R. 78) raises issues of great importance in regard to the costs of proceedings instituted in the High' Court where the amount of damages awarded is within the jurisdiction of the Circuit Court. Section 12 (i) of the Courts of Justice Act, 1936, enacts in respect of the various classes of proceedings men– tioned therein, that where the amount recovered in an action instituted in the High Court is within the limit of the jurisdiction of the Circuit Court the plaintiff shall not be entitled to recover more costs than he would have recovered if the action had been brought in the Circuit Court, unless the judge hearing the action grants a special certificate under subsection (2) that it was reasonable that the action should have been commenced in the High Court. In Byrne v. McMahon the plaintiff brought an action claiming damages for negligence in the High Court, instructing two senior and a junior counsel, and was awarded £150 damages by the jury. The trial judge refused to grant a certificate under Section 12 subsection (2). The costs as drawn included fees for two senior counsel at two thirds of the High Court scale, which were allowed by the Taxing Master after hearing objections. On a motion to review taxation Davitt, J., held that the taxation of the costs was governed by (i) the judg– ment of the Court by which the costs were awarded, (2) the appropriate Rules of the Circuit Court, (3) the appropriate Circuit Court scale, (4) the practice of the Circuit Court. The County Registrar has no authority under the rules to allow Council's fees unless the judge has allowed same, and the Taxing Master in dealing with a case under section 12 (i) of the Courts of Justice Act, 1936, is in the same position. In other words he must proceed exactly as the County Registrar would have done if the action had been brought and determined in the Circuit Court. In the case before his Lordship he held that if an application had been made to him at the trial he would have certified for one senior and one junior counsel. He accordingly remitted the case to the Taxing Master with directions to allow such fees for one senior and one junior counsel as he in his discretion thought

fit having regard .to C.C.R. 1930, O.XL.r.23, Part II of the Appendix to the Third Schedule and the practice of the Circuit Court. Solicitors will appreciate (i) the importance of applying for a \ special certificate under section 12 (2) of the Courts of Justice Act, 1936, when the amount recovered is within the Circuit Court jurisdiction; (2) failing obtaining such a certificate, the necessity of asking the trial judge to certify for the appropriate counsel. Having regard to this decision, it seems unlikely that in a case of less than abnormal difficulty the Court will be willing to certify for more than one senior counsel. In an article in the Irish Law Times and Solicitors' Journal of 22nd March last (q.v.) the writer commented that although the decision on the question of costs in Byrne v. McMahon was limited to counsel's fees, the case in reality opens up other far-reaching issues affecting solicitors' costs and witnesses' expenses in such actions. The logical inference from the decision is that the solicitor for a plaintiff who has obtained, say, £250 damages, should proceed to draw a hypothetical bill for the work which he would have done if the action had been brought in the Circuit Court, omitting the work which he did in fact but which he would not have done if the action had been brought in that court, e.g., delivering a statement of claim and reply, and counsel's fees therefor. Directions to Advocates " THE independence of the legal profession is con– sidered by many authorities to be almost as important as the independence of the Bench. Directions and circulars issuing from administrative or executive officers of a central government to advocates who are not in their employment, except in the sense of being instructed by them, have for centuries been unknown in this country. Even solicitors and counsel in the full-time employment of Government offices and local authorities can claim a full measure of independence of executive direction as to how they should conduct their cases in Court. All who have a sense of the importance of this principle of independence in our legal system will share the dismay expressed by Mr. Derek Curtis-Bennett, K.C., in a letter to the " Daily Telegraph " of 6th May, that ' Treasury chiefs, alarmed at the extent of overspending by Britons abroad, are anxious to secure heavier penalties. Orders are going to prosecuting counsel to seek prison sentences in the more flagrant cases.' The duty of prosecuting counsel, according to Mr. Curtis-Bennett (and we entirely agree), ' is to tell the court the facts of the case being heard, and, if asked, to state what the penalties are which apply, leaving it to the Court to decide what the penalty should be. In this country we do not go in for demanding 20