The Gazette 1952-1955

I f a person charged before justices with a summary offence (i.e., dangerous driving) is entitled to claim to be tried by a jury, is it sufficient fo r justices merely to ask the accused whether he wishes to be tried summarily ? N o , said the Queen’s Bench D ivisional Court (Lord Goddard, C .J., H ilbery and D onovan , J .J .) . T h e accused must be informed specifically o f his right to be tried before a ju ry, and asked whether he w ishes to be so tried. Per D onovan J .— “ I f a man has a right to be tried b y A , he is not told o f that right by being asked if he wishes to be tried b y B . It is important that the law should be strictly follow ed in this respect, though I agree that no particular form o f words need be used to state or explain the right o f trial b y ju ry.” Per L o rd Goddard, C .J.— “ I can see no good reason why, when the proper question is asked, the solicitor or counsel in the presence o f his client cannot answer the question, because the law does not make it obligatory fo r the defendant to answer. The defendant must appear him self i f he claims trial b y a jury, and he can answer himself, but I can see no reason why his advocate in his presence cannot answer fo r him. He can, o f course, contradict his advocate at once, but if he does not, and the case proceeds b y consent shown by his silence, I cannot see any difficulty.” (R . v. Salisbury and Am esbu ry Ju stice s, ex parte G reatbatch (1954) 2 A ll E .R ., 3 z Q. By a voluntary settlement dated July 1 , 1907, a settlor settled securities on his son fo r life, and subject thereto the settlement provided fo r the usual power of appointment in favour of the issue of the life tenant with a gift over to his children in default of appoint??ient. The funds settled comprised a holding of registered shares in an English company {which carried on its business wholly in Southern Ireland), and large holdings of bearer securities in American railway companies, a German Imperial loan, and a Canadian railway company. The bearer securities were kept in England. The settlement was drafted by English solicitors and its form was that which was common in England and Ireland. A ll parties executed the settlement in England. The invest/nent clause permitted {inter alia) investment in freehold, copyhold, leasehold or chattel real securities in England or Wales or any British colony or the United States of America, but did not expressly permit such investment in Ireland {although such investment was, in fact, permissible by virtue of the Trustee Act, 1893, j . i ). Investment was also permitted in stocks or securities of or guaranteed by the Bank of England or the Bank of Ireland. The settlor’s domicil of origin was Irish, but he maintained substantial estates both in Ireland and in England and spent his time preponderantly in England. It was not established that he ever acquired a domicil of choice in England. The life tenant was at all

Passed. Michael C. H a lp en n y ; M ichael A . R e g a n ; Martin S. K eaven y ; Thomas J . Furlong ; Michael A . O ’C a rro ll; Jam es V . C. P h illip s; D aniel B. Sullivan ; William J . B . Fallon ; W illiam N ic h o ll; Frank O ’Mahony ; Walter O ’Donoghue ; Terence Michael Williams ; M ichael G . F ogarty ; Joh n J . Donohoe ; Cliodna M . Cussen ; Jam es Brendan O ’Leary ; Fintan P. Clancy ; Richard K n ig h t ; Humphrey P. K e lle h e r; Go rdon A . H enderson ; Patrick B . K e lly ; Thomas B . Je lle t t ; Patrick C. P o w e ll; Charles F. C. D ow n in g ; B rian W. R u sse ll; Peter P. J . Callery ; A lb ert L . O ’Dea. 42 candidates attended ; 31 passed. Th e Centenary Prize was awarded to D erm ot J . Moloney. DECISIONS OF PROFESSIONAL INTEREST. The tenant of a flat owing rent, hut claiming damages fo r the landlord’s breach of a covenant to supply services, in a communication to the landlord, admitted owing the rent, and set out the damages she claimed, and enclosed a cheque fo r the balance. The landlord’s solicitors returned the cheque and also a banker’s order sent subsequently fo r the same amount, and in a subsequent action fo r the rent and a counterclaim fo r damages fought solely on the counterclaim, the tenant was awarded more than she had claimedfo r damages in her communication to the landlord, and the balance then found to be due to the landlord was less than she had tendered. Was the County Court fudge right in making an order fo r costs in the action in favour of the landlord, and an order on the counterclaim in favour of the tenant, purporting to be bound by the decision in Chell Engineering Ltd. v. Unit Tool & Engineering Co. Ltd. (1950) (1. A ll E .R . 378). ? N o , said the Court o f Appeal (Lo rd Goddard, L .C .J., Denning and Jen kin s, L .J .J .) . The proper- order was that the tenant should have the costs o f the action, and as the judge had failed to exercise a true discretion through considering h im self bound by a decision which was unapplicable, his decision would be varied accordingly. Per L o rd Goddard, L .C .J.— “ I think it would be a reproach to the law if in the circumstances the plaintiff w ere entitled to recover substantially all the costs o f this action, because in fact he could have had his money without bringing any action at all. Instead o f accepting the cheque or banker’s draft, he issued a w r it ; and after the case had been litigated at the very considerable expense o f £50 or £(50, he recovered less than he had been offered before the w rit was issued. In those circumstances, it seems to me only fair that the defendant should have the costs o f the action. (Childs v. Blacker and G ibson (1954) z. A ll E .R ., 243).

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