The Gazette 1952-1955

reproach himself for not having gone outside the question put to him and made inquiries as to the accident generally. The variety o f matters with which a solicitor had to have some familiarity increased annually. Although the case was on the border line, he was not satisfied that the appellant had made out a case o f negligence. In his view, the appeal should be dismissed. Lord Justice Denning, dissenting, said that he was clearly o f the opinion that the solicitor ought to have considered whether the workman had a claim at common law. When a workman went to a solicitor and told him that he had had an accident and sought advice, the very first question that the solicitor ought to put to himself was : What is the man’s legal position ? Every solicitor ought to know that in cases o f accident to workmen, there was all the difference in the world as to the amount o f the award given by the common law, where the employer was to blame, and under work­ men’s compensation, when the employer was not to blame. He (his Lordship) did not think it right that a solicitor should be able to escape by saying that the client had consulted him only about work­ men’s compensation and not about common law damages. That would attribute to the workman a legal knowledge o f the difference between the two remedies. He would accordingly have allowed the appeal. Lord Justice Romer said that the problem which the appellant had presented to the solicitor was within a special and potentially difficult field. In his (his Lordship’s) view it was not negligent on the part o f the solicitor to fail to apply his mind to another and totally different field. (Griffiths v. Evans, 1953, 1. W.L.R. 1425). N.B.—Having regard to the dissenting opinion of Denning, L .J., it might be unwise to assume that this case establishes a universal principle. While the judgment o f so eminent a Court deserves great respect the facts o f each case will have to be con­ sidered if the point arises for decision by the Irish Courts. Is an order by an arbitrator that each party shall pay his own costs of the arbitration a proper exercise of his discretion in the matter of costs in the absence of special circumstances ? No. In Smeaton Hanscomb & Co. Ltd., v. Sassoon I. Setty, Son & Co. (1953, 1. W.L.R. 1481), a dispute as to the quality and quantity of goods sold was referred to arbitration. The plaintiff raised the preliminary point that the defendants had served their notice to arbitrate too late. The arbitrator decided substantially in favour o f the sellers and ruled:; that each party should bear its own costs of the arbitration and the sellers should bear the

costs of the award. Devlin, J., o f the Queen’s Bench division held that this was not a proper exercise o f the arbitrator’s discretion under Section 18 of the Arbitration Act 1950. An arbitrator’s discretion as to costs must be exercised judicially. The award as to costs showed that the arbitrator had not directed his mind to the most important elements which ought to affect his discretion—namely, the result o f the case. In Lewis v. Haverfordwest R.D.C. (195 3 ,1 . W.L.R. i486) a similar point arose. The applicant claimed compensation from the respondent council for damages caused by the construction o f a sewer across his land. The arbitrator awarded £ 156 2s. 6d. compensation and directed that the parties should pay their own costs. The Lord Chief Justice in giving his judgment said that it was a curious circumstance that lay arbitrators seem to think that parties should always pay their own costs and referred to Donald Campbell & Co. Ltd. v. Poliak (1927, A.C. 732) in which it was decided that in the absence o f special circumstances a litigant should receive his costs and that it was necessary to show some ground for refusing to give him an order for costs. The only reason given in the present case was that the arbitrator could not find that during the long period between the event and the date o f the arbitra­ tion, any serious effort had been made to settle the question. The Council had made no offer o f com­ pensation and the reason given was insufficient. The award was set aside in so far as it related to costs. M r . Brian McK. McGuigan o f Belfast has been elected President for the year 1953-54. Mr. Frederick H. Mullan of Newry and Mr. Henry A. Maginess o f Lisburn have been elected Vice-Presidents. INTERVIEWS BETWEEN COUNSEL AND INSURANCE COMPANIES’ REPRESENTATIVES. T he Council made representations both to the Bar Council and to the Accident Offices Association to the effect that officials o f insurance companies should not consult or seek advice from counsel except through solicitors. Cases had been brought to the notice o f the Society in which the accepted practice o f consulting counsel through solicitors had not been observed. The following resolution was passed by the General Council of the Bar of Ireland and published in the Irish Taw Times and THE INCORPORATED LAW SOCIETY OF NORTHERN IRELAND.