The Gazette 1958-61

which to base his view because no such analysis had been made. Counsel, faced with such a position, was in a predicament and this was not the way in which to get the most beneficial opinion. He had advised favourably on the wife's prospects, but he was in the position of having to give a snap opinion and without having the advantage of an analysis. There was no reason why Mr. Small should not have furnished counsel with full instructions and obtained counsel's opinion by ist August, 1957. The fact that counsel had subsequently advised favourably in the circumstances referred to could not produce any cover for the past. The wife's solicitor was determined to carry on the litigation on the basis of his own opinion which had become incapable of being objective. That could not justify aggressive procedure running the husband into ever-increasing cost and it was conduct within the rule in Myers v. Elman supra. The husband should be indemnified for his costs on a party and party basis as from ist August, 1957. (Edwards v. Edwards (1958) a. All E.R. 179.) OBITUARY MR. JAMES H. MURPHY, solicitor, died on 29th April., 195 8, at a Dublin nursing home. Mr. Murphy served his apprenticeship with the late Mr. Alexander Garthan, Newry, Co. Down, was admitted Hilary Sittings, 1900, and practised at Dundalk, Co. Louth, as senior partner in the firm of Messrs. James J. Murphy and Son. MR. ALEXANDER E. DONNELLY, solicitor, died on 9th May, 1958, at Tyrone County Hospital. Mr. Donnelly served his apprenticeship with the late Mr. Francis Shields, Omagh, Co. Tyrone ; was admitted Trinity Sittings, 1905, and practised at Omagh as senior partner in the firm of Messrs. Donnelly and O'Doherty. MR. RAYMOND HICKEY, solicitor, died on i8th May,. 1958, at the Mater Private Hospital. Mr. Hickey served his apprenticeship with Mr. Valentine Miley, 12 South Frederick Street, Dublin; was admitted Hilary Sittings, 1942, and practised at 42 St. Stephen's Green, Dublin, as a member of the firm of Arthur Cox and Co. REGISTRATION OF TITLE ACTS, 1891 AND 1942 ISSUE OF DUPLICATE LAND CERTIFICATES the registered owners mentioned in the Schedule annexed hereto, for the issue of Certificates of Title in substi- Applications have been received from

belief, and putting the husband to proof of his income and assets, could put a husband into con– siderable peril since it was usual for a husband to have to pay his costs in the application and he could be ordered even to pay the costs of an unsuccessful wife. It was, therefore, right that those who put such procedure in motion should be under a duty to use proper caution, and it was the normal practice, especially where the wife was in possession of the matrimonial home and receiving some maintenance, for the husband or his solicitors to be asked as a preliminary step to supply information, thus elimini- nating the possibility of proceedings which were unnecessary and oppressive. Mr. Small had agreed that this was the usual practice of his firm, but had offered no explanation as to why he had failed to take that course in the present case, and this was particularly noteworthy as he had notice of the existence of a mortgage and an overdraft which were liabilities of the husband. If proper inquiries of this nature had been made it would have been extremely difficult to take the view that the proceedings would be successful and it followed that he had been unreasonable in not making such inquiries. There was, however, no previous authority as to section 23 proceedings, and the propriety of making inquiries might not have been appreciated in its true light. He (His Lordship) was therefore not prepared to hold that the solicitor's conduct at that stage was such as to require him to be personally liable for the costs of the whole proceedings. In May, 1957, discovery had taken place and it was one of the best known duties of solicitors to examine closely the documents discovered to ensure that the chances of success in the action had not been materially affected thereby. The present case was a classic example of the change of the face of an action on discovery. The matter cried aloud for a careful analysis of the documents, and in his Lordship's view if that analysis had been made it would have appeared clearly that the wife's appli– cation could not succeed. The appropriate analysis had, however, never been made nor was counsel's opinion sought at that stage. The fact that counsel had advised favourably in February, 1957, was of no avail in May, 1957. In May, 1957, Mr. Small went to the area committee in an angry mood and chose to form, in that angry mood, a strong opinion that he had a good case. That opinion was wrong, but it was worse in that it was an opinion which a solicitor who had carefully examined the material then available could not reasonably have reached. After February, 1957, no opinion was sought from counsel until shortly before the hearing and he had not then been provided with a proper analysis on

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