The Gazette 1974

not to say that the personnel sitting on the Minister's tribunals are invariably partial as in many instances, they are not. However, the system does leave itself open to criticism on many grounds, not the least feeing that justice may not appear to be done. In that regard, an Appellant may find himself dealing with an invisible "prosecutor" whose case is never really heard but the existence of which certainly discloses itself from confi- dential papers held in the case by the Officer in whose hands the decision lies. This is an unsatisfactory ac- cepted situation within the system. By reason of these matters, many persons resorting by way of Appeal to an Administrative Tribunal approach the matter with some scepticism. It is often thought that the only right of Appeal is to another person within the system, but it should be fully understood that on a question of law at least, there is a right to Appeal to the High Court under Section 45 of the Social Welfare Act of 1952 in the case of unsatisfactory decisions by an Appeals Officer or a Chief Appeals Officer under the Social Welfare Acts. This matter is of some consequence and may assist in remedying a situa- tion which might otherwise go unaffected. (See McLoughlin v. Minister of Social Welfare —(1958) IR 1.) Section 45 came to the aid of John Joseph Wrynn, a Plaintiff in High Court proceedings issued against the Minister for Social Welfare by a Special Summons dated 29 May 1973. John Joseph Wrynn was employed by an Ecclesiastical Supplier on certain days of the week in respect of the period from 2 November 1970 to 29 November 1970. Four Social Welfare Insurance Stamps were affixed to his Insurance Card in respect of that period. At all events, Mr. Wrynn ultimately received a notification that it had been decided by a minor civil servant called a deciding officer (appointed under Section 41 of the Act) that the employment was not insurable. At that stage, he appealed to a higher civil servant called an Appeals Officer appointed under Section 43 of the Act. This Appeals Officer, after an oral hearing in which he heard Mr. Wrynn himself and in which he also heard the Employer who was summoned as a witness by the Minister, decided to uphold the decision of the Deciding Officer, as usual, without giving valid reasons. At the hearing of that appeal, all of the evidence established that Mr. Wrynn was genuinely employed in employment under a Con- PREVENT INJUSTICE The establishment of a public fund to save litigants having to pay Appeal Court costs from their own pockets because of mistakes by judges or uncertainties in the law is urged today by the Law Society. In a memorandum to Lord Hailsham, Lord Chan- cellor, the Society, which is the solicitors' governing body, backs a proposal made four years ago by Justice, the all-party law reform group, for the establishment of a suitors' fund. The need for such a fund arises from the injustice that can follow the general rule in civil litigation that the eventual loser is ordered to pay the costs of the

tract of Service such as would fall to be considered as Insurable employment under the Act. The d e c i s i on of the Appeals Officer was most extraordinary as not being in accordance with legal principles by reason of this> it was pointed out to the Department that the decision was not supported by proper evidence and that, there* fore, an Appeal to the Chief Appeals Officer was sought. The then Chief Appeals Officer, lacking the requisite legal knowledge, in turn, indicated that he sa^ no reason for altering the decision of the Appeals Officer. Thereafter, the matter was pursued on the basis that proceedings would be issued in the High Court having regard to the fact that the decision of the Appeals Officer was not supported on the evidence. Applicat on was made for a copy of the note of the evidence taken by the Appeals Officer, but, of course, this was illegally with-held notwithstanding that several requests were made for it and further notwithstanding that these requests were based upon the most learned decision of the Supreme Court in the case of Murphy v. Dublin Corporation (1972) IR 215. Consequently no copy of the note was furnished. Ultimately the proceeding 5 issued were based simply upon the contention that upon all of the evidence furnished at the Hearing, none of it justified the view taken by the Appeals Officer and that, therefore, he had arrived at a decision which wa 5 not supported by evidence as a matter of Law.

Notwithstanding the unsatisfactory stand taken ear- lier, the State was ultimately compelled to indicate that the Chief Appeals Officer was prepared to alter hi 5 decision ! There was then the very neat question as to whether the Chief Appeals Officer could do this or not, in view of the fact that he had already given his de- cision, and the point might be taken that his decision could not be altered and that he could not in e f f e c t, reverse himself. Ultimately, at all events, Mr. Wrynn was happy to have a new Chief Appeals Officer find in his favour and the State, of course, submitted to the costs of the proceedings in an Order ultimately made by Mr. Justice Kenny by consent on 21 December 1973- This particular case, is therefore of importance to show that in any case where the evidence tends to support the applicant the Appeals Officer is not e n t i t l ed in those circumstances in his decision to adopt a con- trary view because as a matter of law, he is not e n t i t l ed to do so, if the evidence does not support it. SOLICITORS WANT SUITORS 1 FUND TO

winner, including his own. This means that although a plaintiff can succeed at the trial and be awarded costs, if the defendant then appeals and wins, the plaintiff can be faced with a much larger bill for costs because of the wrong decision of the trial judge. Aggravated further The situation can be aggravated still further, if, far example, there is a second appeal from the Court of Appeal to the House of Lords. Under the proposals far 100