The Gazette 1964/67

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Vol. 58 No. 1

MAY 1964

THE GAZETTE of the INCORPORATED LAW SOCIETY OF

IRELAND

Vice-Presidents JOHN MAKER PATRICK NOONAN

President DESMOND J. COLLINS

Secretary ERIC A. PLUNKETT

FOR CIRCULATION AMONG MEMBERS

MEETINGS OF THE COUNCIL

CONTENTS OF THIS ISSUE

APRIL 23RD : The President in the chair, also present, Messrs. Ralph J. Walker, D. B. Gilmore, i James R. C. Green, Edward J. Dillon, John C. O'Carroll, Joseph P. Black, Thomas A. O'Reilly, 3 D< J- O'Connor, Patrick Noonan, Desmond Moran, Peter D. M. Prentice, R. A. French, Thomas J. G. G. Overend, Brendan A. McGrath, Gerard M. Doyle, John J. Nash, George A. Nolan, J. F. Foley, 7 patrick O'DonneU, Rory O'Connor, Peter E. O'Connell, James W. O'Donovan, William A. 7 Osborne, Niall S. Gaffney, Eunan McCarron and Gerard J. Moloney, John Carrigan. The foUowing was among the business transacted Examination Failure Rate The Council referred to the Court of Examiners t'le consideration of the results at the recent ist 9 Law Examinations having regard to the higher percentage of failures with instructions to make a 9 9 x 6 Fitzpatrick, Francis T. Laniean, & ~' . John Maher, £. . ' , ,J J , '

Meetings of the Council

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Ordinary General Meeting.

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Admission Ceremony

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Road Traffic Acts iw and 1961

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Cases of the month

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Examination dates 1964 ...

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Registration of Title Acts

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further report to the Council.

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Trade Marks Act

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10 Circuit Court Costs The Council considered a report from the deput- 10 ation which attended the Department of Justice.

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Superior Court Rules Committee and the Circuit Court Rules Committee and to invite them to discuss with representatives of the Council the difficulties which arise from the point of view of the client, who wishes to institute proceedings whereby the medical practitioner who attended him does not furnish a report and give evidence. Town Planning Searches On a report from a committee the Council stated that as a matter of practice no additional fee should be charged over and above the commission scale fee for searches and other work under theTown Planning Act in connection with the sale or purchase of property. Workman's Compensation Agreement On a report from the committee the Council stated that there is no objection to the receipt by a solicitor from the employer of a workman, of a sum for costs mutually agreed where a claim is admitted and weekly payments made thereafter without the necessity of instituting proceedings. Commissioners' Fees on Administration Papers On a report from a committee of the Council stated that the fees now chargeable in administration matters where a deceased dies intestate and there is one administrator and two private sureties are as follows : 1. Schedule of Assets $s. 2. Oath of Administrator 55. 3. Administration Bond (three parties) 155. Sale Lease Members refer to the decision in Simms-Clarke v. Ilet Ltd., and ask the Council for their opionion as to the point when the lease ceases to be a lease and becomes a sale for the purpose of costs. The ratio between the annual rent and the amount of the fine varies within wide limits. The Council in reply stated that each case must be considered on its merits having regard to the surrounding circumstances. If there is a substantial fine the transaction is a sale. If the parties agree in advance that the costs of the lease containing the fine shall be paid by the lessee the lessee is bound by the stipulation but the Council disapprove of such stipulations in contracts (Hand– book Opinion DR.24). If the contract contains a stipulation obliging the lessee to pay the lessor's costs the lessee is liable 4. Justification (two sureties ics.) 5. Affidavit of market value 55.

Agreement was reached between the Department and the Society's representatives. It was decided that the scale of costs will now be submitted to the Circuit Court Rules Committee. Compensation Fund Claims amounting to £9,810 were admitted for payment. Road Traffic Prosecution Costs In reply to an enquiry as to whether a solicitor who defends a charge for dangerous and drunken driving is entitled to charge £-j ys. for each summons, the Council stated that the case of a double charge of dangerous and drunken driving is covered by the statement in the circular recently issued that the fee of £j js. is a minimum fee and that appropriate additional fees should be charged for cases of special responsibility or difficulty. A case of drunken driving falls within this description and is not included in the minimum fee of £-/ 75. An appropriate additional fee should be charged. Client's access to solicitors' stationery A member enquired whether he might act for clients in debt collection matters on terms that a supply of his stationery would be used by the client for preparing letters of application which would be carefully checked and signed by the solicitor before mailing. On a report from the committee the Council stated that they would not approve of the suggested arrangement whereby the client should have access to the solicitor's professional stationery. MAY I4TH : The President in the chair, also present, Messrs. Francis J. Lanigan, John Carrigan, James W. O'Donovan, D. B. Gilmore, R. A. French, Edward J. Dillon, Gerard M. Doyle, Thomas H. Bacon, Peter E. O'Connell, R. Knight, James R. C. Green, Brendan A. McGrath, Eunan McCarron, Peter D. M. Prentice, John J. Nash, R. McD. Taylor, Joseph P. Black, John Maher, Ralph J. Walker, Desmond Moran, Patrick Noonan, and Augustus Cullen. The following was among the business transacted : Medical Practitioners fees The Council considered a report from a committee on difficulties which arise where medical practi– tioners, particularly those in the health authority service, decline to furnish medical reports or attend court as witnesses. It was decided that a letter should be written to the Irish Medical Association asking them to submit suggestions for an appropriate scale of medical fees which could be submitted to the

for these costs calculated on the fine and on the rent. In the absence of such a stipulation each party, pays his own costs calculated on the fine and on the rent. Solicitor-Executor. Privilege A member drew a will for a client who made a number of pecuniary bequests and devises. Member was solicitor and sole executor. He extracted Probate and completed the administration of the estate a number of years ago. He recently discovered that certain assets were concealed by the testator's widow with the result that there is an undischarged liability for death duties and the residuary legatees were underpaid. Part of the undisclosed assets consisted of deposit receipts in the joint names of testator and his wife and the rest was a substantial amount of cash in the house. Member enquired as to his professional position. The Council in reply stated that member has a duty as solicitor and executor to disclose the new information that has come to his notice both to the Revenue Authorities and the residuary legatees but he should not disclose the source of his inform– ation if he obtained it from the widow in a professional capacity. ORDINARY GENERAL MEETING An Ordinary General Meeting of the Society was held at The Library, Solicitors' Buildings, Four Courts, Dublin, on Thursday, I4th May, 1964 at 2.30 o'clock. The minutes of the Ordinary General Meeting held on zist November, 1963, were read confirmed, and signed. the Chairman nomin– ated the following members as the scrutineers of the ballot for the election of the Council for the year, 1964-65 : J. R. McC. Blakeney, Thomas Jackson, Brend;m P. McCormack, Roderick J. Tierney, and Alexander J. McDonald. Pursuant to Bye-Law 28 The President took the chair. The notice convening permission taken as read. the meeting was by

Scan Gibbons and his son, Niall Gibbons, both of 8 Trinity Street, Dublin. John D. O'Connell, Tralee, Co. Kerry, Patrick Murphy, Finance Solicitor, 51 St. Stephen's Green, Dublin, Derek Hurley, 15 St. Stephen's Green, Herbert J. W. Downey, 22 Kildare Street, Dublin, Patrick E. Rogers, Ballyshannon, Co. Donegal, Alan G. Murray, 3 Dawson Street, Dublin, Edward Minogue, Claremorris, Co. Mayo, John M. Dudley, Mallow, Co. Cork, John T. Hannon, Law Commissioner, Land Com– mission, Nicholas J. Cosgrave, 39 Nassau Street, Dublin, Charles S. Doyle, 34 Kildare Street, Dublin. On behalf of the members of the Council and on my own behalf I would like to express deep sympathy with their relatives and friends. At each half yearly meeting of our Society it is customary for the President to give a short account of any developments which have taken place since the previous meeting. You will, no doubt, recall that some time ago your Council arranged for lectures to be given to assist in post-graduate legal education. Three lectures have already been given and further lectures it is hoped will be arranged at a later date. A few hours after I had been elected as President of the Society on the 5th December last I presided at the first of the three lectures all of which were held here in our law library. The subject matter was Town Planning a subject which interests more and more people as our cities continue to develop and expand. Mr. Matthew Purcell whose knowledge of the subject is apparently unlimited held the attention of an audience of over seventy people and although he appeared to have copious notes he never seemed to refer to them at all during his address which was very cordially received. The subject of the second lecture which was held on 9th January of this year was Taxation. Once again there was an audience of over seventy people present. Mr. Vincent Grogan, the lecturer, excelled himself. Taxation is nothing new but it is a subject which is becoming more and more important in these competitive days and solicitors appreciate how necessary it is to know everything possible about the subject so that they may advise their clients not only on how to live but how they can afford to die. I think it is safe to say that everyone present at that lecture learned something new and helpful. On 6th February the subject of the lecture was Company Law and once again there was a very large attendance. Mr. Patrick Kilroy was the lecturer. He

The President addressing the meeting said:

LADIES AND GENTLEMEN, Before dealing with the business of your Society, I have to record with regret the death since we last met of the following members of the Society :

England has chartered a plane to take all the European delegates to Mexico, and I hope to attend this con– ference with Mr. John Carrigan. I will make a further report when I speak to you next December. The distance to Mexico city from this country has proved too great an obstacle for several other members of our Society who have attended previous conferences. It is hoped that the 1966 conference will be held somewhere in Europe where the problem of distance will not be so great for our members. TRAINING OF APPRENTICES Your Council is extremely concerned at the increasing amount of knowledge which solicitors' apprentices must absorb if they are to succeed in qualifying as solicitors. The course is both long and difficult and the percentage of apprentices who pass any of the law examinations at the first attempt is by no means high. The Court of Examiners have been asked to consider the whole position and to report to your Council. I cannot help wondering whether the standard set for the leaving certificate is sufficiently high in these very competitive days. I am aware that a very high percentage of students are successful each year in this examination. I wonder, however, whether the percentage of passes in the open public matriculation examination is equally high. I doubt this extremely. I am aware that some employers are not impressed by a candidate for a position who simply obtained a leaving certificate, but are much more inclined to favour one who has obtained a pass in the open public matriculation examination. The results in this examination do not, of course, get anything like the same publicity as the results of the leaving certificate. The marks are not published, nor is it easy to get particulars of the numbers of candidates who have failed. Your Council will do everything possible to ensure that solicitor's apprentices will be taught comprehensively and adequately, but it is well to realise that our apprentices are usually in an age group of 17J to 19 years when they enter into indentures, and it is going to be difficult both for them and for us if at that stage their standard of education is insufficient to enable them to undertake the very heavy programme of work which faces them before they finally qualify as solicitors. There is no doubt that now-a-days when a solicitor passes his final examination he is, in my opinion, really well qualified to deal with any and all legal problems which may arise in these very difficult days. LAW CALENDAR AND DIRECTORY By this time you have all, I hope, obtained your copies of the new Handbook of the Incorporated Law Society and the Law Directory for 1964. Your

showed us that he had mastered the new Companies Act of 1963 and underlined some of the more important differences between this Act and the previous Acts of 1908 and 1959. Tape recordings were made of all three lectures and may be hired from the Society by any Bar Associations who require them. The lectures will in the near future be printed and published by our Society. I think that we owe a deep debt of gratitude to our three lecturers for their very able work. SOCIETY'S PUBLICATIONS I would like to remind you all that our Society's other publications Administration of Estates Act, 1959. The Statute of Limitations. Married Womens' Status Act, 1957. Civil Liability Act, 1961. The Stamp Duty Legislation, 1890-1962. are all available and can be obtained from the office here in the Four Courts. I must also pay a tribute to the Provincial Solicitors Association for publishing an excellent booklet under the title of " A Guide to Death Duties ". Your Society has obtained from counsel a draft of Standard Contract Form Clauses in Sales by Auction and Private Treaty and this draft is at present being studied by the Council. There are also available now supplies of the new form of stock transfers for the use of our members. COMPENSATION FUND It is satisfactory to know that everyone who proved a claim against our Compensation Fund has been paid in full. We have now in reserve a sub– stantial fund over and above the amount provided by the Solicitors Act and whilst at this stage there is no suggestion that the Solicitors Annual con– tributions may be further reduced, it is, I believe, extremely improbable that the contributions will need to be increased in the foreseeable future. INTERNATIONAL BAR ASSOCIATION In his address a year ago, to the meeting of our Society held at Bundoran, my predecessor, Mr. Frank Lanigan, told you that the next meeting of the International Bar Association would take place this year in Mexico city, and he said that it was open to any member of our Society to go to this conference, and pointed out how necessary it is to retain an active interest in the Association. In January of this year I spent two days in Madrid as a member of the committee which had the task of arranging the agenda for the conference of the associ– ation in Mexico City, which commences on the z6th July and closes on the 31 st July. The Law Society of

notice that the Commissioner on Higher Education wished to meet representatives of your Council presumably to discuss the suggestions and recom– mendations already referred to. In my next report accordingly, I will be able to tell you the result of that interview. LEGAL AID Your Council has had meetings with the Depart– ment in connection with the Criminal Justice (Legal Aid) Act of 1962 and made it clear that it will co– operate as far as possible in any satisfactory scheme which may be approved. The Department suggested that in order to assist in the introduction of the scheme the solicitors concerned should accept reduced fees and a scale was submitted to your Council. This scale was considered very fully but was found to be unacceptable. However, in an endeavour to meet the Department and to facilitate all persons concerned your Council submitted their suggestions which represent substantially less than the fees which they consider the solicitors concerned should be paid. They notified the Department that they would be prepared to recommend this scale to their members for a trial period of one year on the definite understanding that at the end of that period the scale would be reviewed and increased to a realistic figure. It should be mentioned that at the time your Council submitted their final scale the 9th round wage increase had not taken place nor were they aware of the increase in postage and telephone charges which were subsequently announced. Your Council has not yet heard from the Department since submitting its final suggestions. CIRCUIT COURT COSTS Some years ago your Council raised the question of a new scale for circuit court costs. A scale was ap– proved by the Rules Committee and sent to the Department of Justice. The Minister, however, felt unable to agree to the scale submitted. With the consent of the Rules Committee your Council then entered into direct consultations and negotiations with the Minister regarding the amount of the increases to be allowed. The Minister made it clear that he did not wish to continue the principle of scales of costs in certain jurisdictions being linked to the scales applicable to the High Court. Numerous interviews and consultations with the Department ensued and very recently your Council notified the Department of its acceptance of the final terms which had been provisionally agreed. The fact that final agreement seems now to be in sight is largely due to the work and co-operation of the Minister and his officials and to my predecessor Mr. Lanigan, to all 5

Council hopes that the new Handbook commends itself to the profession, and in so far as the Law Directory for 1964 is concerned, your Council will welcome any suggestions for improvement or amendment at a later date. SOLICITORS' BENEVOLENT ASSOCIATION I attended the centenary meeting of the Solicitors' Benevolent Association in January of this year. I was very glad indeed to learn that the necessary money had been forthcoming for the new Centenary Annuity. The work of the Society is most important and there is no reason why every member of our profession should not be a member of the Solicitors' Benevolent Association. The annual subscription is still only one pound and that sum must certainly be within the reach of all of us. I renew the appeal made by successive Presidents of our Society to every solicitor, young or old, to send his subscription now to the Secretary of the Solicitors' Benevolent Association. BAR ASSOCIATIONS Although I have been in office for only five months, I have realised more than ever how important it is to have active and effective local Bar Associations. Such Associations tend to increase harmony and goodwill amongst the members and they deal very efficiently with questions which arise from time to time amongst their members and thereby save a considerable number of matters being referred to your Council for a decision. I do not want you to think that your Council wishes to rid itself of its responsibilities, but there are numerous cases where members of the profession prefer to have any differences or difficulties ruled on by a local body rather than to have the matter referred to your Council here in Dublin. There are a few counties which lack a local bar association and I think that this is most regrettable. Any one active man with initiative could, I feel confident, organise a local bar association and I have no doubt that once such an association had been formed it would meet with general approval and would help to strengthen our profession. LEGAL EDUCATION AND TRAINING On the zist July, 1961 your Council sent a long memorandum on legal education and training to the Commission on Higher Education for consideration. In that memorandum your Council stressed three main defects of the present system and made five general recommendations and six specific recom– mendations. The commission has not yet made a report but within the past few days your Council received a

Since my election as President of the Incorporated Law Society of Ireland last December, I have attended a large number of functions and presided at many meetings and before my year ends in December I will I hope attend many more. I can honestly say that the occasion which gives me the most pleasure is to-days ceremony, short though it will be. You have completed a lengthy and difficult course and you have joined a profession which welcomes you. Wherever you decide to practise whether in Dublin or some other city or in the country your clients will rely on you for advice and guidance and the intensive training which you have completed will enable you to give that advice and guidance with confidence. Some of you may decide to go abroad and in this connection I have noticed advertisements in newspapers recently which appear to offer very attractive terms to young. The younger you are the greener seem the " far off hills " but you must realise that the colour does not always persist when you arrive at the end of your journey. I believe that it will be possible for you to make for yourselves a satisfactory career in this country if you stay here and you can also be reasonably sure that in few other countries will you find the way of life more rewarding and satisfactory. I would like you to remember that if you ever need advice or assistance at any time in the future the Council of the In– corporated Law Society of Ireland will always be ready and willing to help you. That is one of its chief functions. In conclusion on behalf of the Council and on my own behalf I congratulate you most heartily and wish everyone of you happiness and success in the future. The foliowing solicitors received their parchments : H. C. P. Barry, Egmont House, Kanturk, Co. Cork; Brendan Byrne, B.C.L., (N.U.I.) 72 South Hill, Dartry, Dublin; Michael A. Buckley, " Analore ", Castle Road, Blackrock, Co. Cork; Anthony E. Collins, B.A., B.Comm., 5 Waltham Terrace, Blackrock, Co. Dublin ; Stuart L. Cosgrave, 94 Sandford Road, Ranelagh, Dublin; Peter B. pagan, 23 Fitzwilliam Place, Dublin; John F. B. Glynn, B.A., B.C.L., LL.B., (N.U.I.), 91 Terenure Road West, Dublin; George B. Holland, B.A., (Mod.), LL.B., (T.C.D.), 7 Baymount Park, Clontarf, Dublin ; Daniel Kelliher, Main Street, Castleisland, Co. Kerry; Patrick Listen, 12 Thomas Street, Limerick; Giles Montgomery, 5 2 St. Lawrence Road, Clontarf, Dublin; Denis Murnaghan, 66 Wellington Road, Ballsbridge, Dublin ; Brendan A. J. Murrin, B.C.L., (N.U.I.), Bridge Street, Killybegs, Co. Donegal; Patrick John MacGrath, 31 Pearse Street, Nenagh, Co. Tipperary; Bryati Michael E. McMahon, B.C.L., LL.B. (N.U.I.),

of whom we owe our thanks. It was, however, made quite clear to the Department, when this approval was given, that the new scale is on the basis of the Society's original application of August, 1961 and does not take account of the altered circumstances since that date, including the ninth round wage increase. The Department has been informed that as soon as the new scale has been approved by the Rules Committee and finalised, the Society will apply Within the past few weeks we had a long interview with the Minister for Lands and officials of his Department. Agreement was reached in principle on an appropriate commission scale in voluntary sales with a right of election. The rules to imple– ment this scale are at present being drafted by the Department and they will include provision for the simplification of procedure in connection with title. Our thanks are due to the Minister and his officials for their co-operation and assistance in finalising this matter. CONCLUSION At this half yearly meeting I have dealt very shortly with a number of current matters which are of great importance to all of us. I can assure you that during the remainder of my term of office I will do every– thing possible to carry out my duties in a manner most beneficial to our Society and our Profession. I have received and will I know continue to receive the greatest possible support from Mr. John Maher and Mr. Patrick Noonan, my Vice Presidents and from the entire Council. I would also like to refer to the assistance, help and guidance I have received from our Secretary Mr. Eric Plunkett and I know too that that assistance will continue to be forth– coming for the remainder of my term of office In general business, Mr. T. D. McLoughlin suggested that instruction should be given to the apprentices on the use of legal text books and also that newly admitted solicitors should be required to wear gowns on receiving their certificates of admission. Mr. R. J. Walker, spoke opposing the last mentioned suggestion. Mr. J. B. McGarry spoke on the question of the difficulty experienced by apprentices in finding sufficient time to attend their offices when taking University degrees. There was no further business and the meeting terminated. ADMISSION CEREMONY An admission of new solicitors took place at the Library, Solicitors' Buildings, Four Courts, Dublin on 7th May, 1964. The President addressed the meeting as follows : at once for a 12% increase. LAND COMMISSION COSTS

however, that the General Order required that in a particularised bill the items should be separately listed and priced under items 2 to 20 of the schedule and that the instructions fee should be shown separately. Any particular items of work which cannot be allocated to items 2 to 20 would be shown under item 21 (J. H. Walshe & Co. v. Greenmount Oil Co. Ltd. and Le Brocquy). Costs. Review of taxation. Debenture. Appeal on quantum. In a solicitor and own client bill relating inter alia to a debenture securing a sum of £3,900,000 in which no lands were involved a sum of £3,673 was charged for instructions on the basis of one quarter of the scale fee of a mortgage for the same amount. The Taxing Master allowed 1,500 gns. After a review of the bill the Taxing Master in his report referring to item i of schedule II stated that he regarded clauses (a), (b~) and (c) germane. These relate to (a) the complexity, importance, difficulty, rarity of the questions raised (b) where money or property is involved its amount or value and (c} the importance of the matter to the client. The Taxing Master did not specifically refer in his report to clauses (d) to (g) of item i which have more direct application to the amount of work done and time expended thereon. Budd, J. on an appeal from the Taxing Masters found that the report afforded a ground of objection to the principles applied to the taxation since it appeared therefrom that the taxing master had regard only to some of the matters enumerated in item i and the matter was referred back so that the taxing master should have regard to each of the clauses in the item. A further question raised before the Court as to whether it was now open to the Court to consider an appeal on a pure question of quantum by reason of the word amount in order 99 rule 38 of the Rules of the Superior Courts, 1962 was not decided. (Whitney Moore and Keller v. Shipping Finance Corporation Ltd.). Damages—Delay Between Accident and Trial The plaintiff claimed damages from his employers for injuries suffered in an accident at work in December, 1959. Held : that the plaintiff had not made his case. Per curiam : It is not right and fair, and makes the Court's task an almost impossible one, that more than four years should elapse between the accident and the trial. For every moment that elapse between memory gets weaker and imagination stronger: (The Times, March I4th, 1964, Paull J.). Medical Partnership—Dissolution. (Partnership Act, 1890 (53 & 54 Vie. C 39) 8.26). In 1948, two doctors A and F entered into partner-

38 Ashe Street, Listowel, Co. Kerry; James J. Nestor, Dunmore, Co. Galway; William F. O'Driscoll, B.C.L., Bandon, Co. Cork; Michael V. O'Mahony, B.C.L., LL.B., (N.U.I.), 62 Stiles Road, Clontarf, Dublin (Silver Medal) ; Niall P. O'Neill, Ard Caein, Naas, Co. Kildare; David W. Prentice, 96 Granite Field Estate, Dun Laoghaire, Co. Dublin ; Edmond M. Veale, B.C.L., (N.U.I.) 30 St. Kevins Park, Dartry, Dublin. ROAD TRAFFIC ACTS 1933 AND 1961 Copies of the Department of Local Government circular relative to the above may be obtained from the Department; they contain a statement of the provisions of the law of the Road Traffic Act, 1961 and the Orders, Regulations, Byelaws and rules made thereunder which are now in force; particulars of the provisions of the Road Traffic Act, 1933 and certain other enactments which have been repealed by the 1961 Act, and particulars of Orders etc., made under the 1933 Act which is still in force. The statement covers the position as at ist April, 1964 and supersedes all previous statements issued by the Department on the subject. CASES OF THE MONTH Costs Itemised Bill. In a recent unreported decision of Kenny J. in the High Court the plaintiffs on a special summons were the solicitors for a limited company and the defend– ants were the company. The solicitors sought a direction remitting a solicitor and own client bill for taxation, the clients having refused to sign the requisition to tax. The charges related to business done in connection with a number of take over agreements and the bill was drawn at £2,600. The first bill submitted was a lump sum bill for this amount and the clients required particulars under clause 6 of the Solicitors' Remuneration General Order, 1960. In the particulars submitted all the work done was summarised under the heading of instructions running to over 100 pages and the last six pages of the bill comprised itemised charges amounting to a sum of between £300 and £400. Kenny, J. held that the system of solicitors' remuner– ation for non-contentious business had been funda– mentally changed by the Solicitors' Remuneration General Order, 1960. The instructions fee allowed the Taxing Master to give remuneration over and above the total of the itemised charges where having regard to the considerations enumerated in item i of the schedule he thought it reasonable to do so. His lordship stated that the charge of £i for the first hour of an attendance with 15 /- for each subsequent half hour might be grossly inadequate. He hel 1

parties, contributory negligence was not pleaded and the manufacturers were not joined. At the trial the defendant sought to lead evidence of the defect. Held : (i) That it was sufficient for the defendant simply to deny that he was guilty of negligence even though he intended to show that the accident was due to the act or neglect of a third person ; and (2) that as the facts raised in prima facie case of negligence on the part of the defendant, the defence simply denied negligence, the plaintiff should have been able to anticipate the defendant might rely on the defect which had been mentioned in the cor– respondence and accordingly could not complain that he had been taken by surprise (McKnight v. McLoughlin (1963) N.I. 34, Black L. J.). Termination of H.P. Agreement—Detinue. No one is bound save by contract, to take a chattel to the owner of it. His only obligation is not to prevent the owner from getting it when he comes for it. A hire purchase finance company re-took from X the car he was hiring from the company. This was unlawful because X had paid one third of the hire purchase price. X wrote to the Company saying he would sue for the return of what he had paid, but before the letter reached the company, the car was returned and left outside his house, and X made some use of it for about five months. About eight months after the return the Company demanded that the rest of the instalments under the hire purchase agreement and later sued for these. X defending and counterclaiming the return of which he had paid, on the footing that the unlawful retaking had terminated the agreement. Later, the Company amended to add a claim in detinue and damages at a weekly rate up to the hearing. Held that X's defence and counterclaim succeeded, as though the return of the car was an offer to restore the agreement it was never accepted, and the claim in detinue failed because X was never under an obligation to return the car, and his use of it was as an implied bailee with the consent of the company Capital Finance Co. v. Bray (1964) i W.L.R. 323 ; (1964) i All. E.R. 603, C.A. Charitable Gift, A testator gave his studio and the contents, which included paintings by himself and others, furniture, china, glass and bric-a-brac, to trustees and directed that his residuary estate be used to endow the studio as a museum for the display of his collection. On a summons to determine whether a valid charitable trust had been created, art experts gave evidence that the studio was squalid and that the collection had no educational value whatever and Wilberforce J. held, first, that when determining 8

ship expressed to be for their joint lives under a written partnership deed. At the end of 1958 they agreed in principle with another doctor, B., that all three would go into partnership, share profits and losses equally between them, obtain a lease of the premises where A and F had their joint surgery, make a clinic there and equip it at their joint expense. On March 3rd, 1959, a Lease was granted in which A, F. and B. were described as the lessees who would carry on the business of medical practitioners in partnership. A. instructed his solicitors to draft a deed of partnership, which it was agreed would be signed. The draft of the partnership deed was never signed because F. objected to the seniority in holiday provisions in it. From May nth, 1959, all three had their surgeries at the clinic and also practised at their respective private addresses. On October icth, 1959, F. and B. wrote to A. that since agreement could not be reached on the above issues the partnership ought to be dissolved as from November 3oth, 1959. In proceedings for dissolution of the partnership, held, that the effect of the partnership between A., F. and B. was that it superseeded the partnership between A. and F. Further, where there was no express agreement about the duration of partnership, 26 of the Partnership Act, 1890 applied and the partnership was rendered a partnership at will which could be dissolved by notice of any partner. Ac– cordingly, the partnership between A., F. and B. was dissolved in November 3Oth, 1959; Firth v. Armslate ("1964) 108 S.J. 198 Plowman J. Current Law. (1964) 3. C.L. Projessional Negligence P., an electrician, retained D., a solicitor, to pro– secute his claim for damages against his employers, arising from a fall which he sustained at a house where his employers were carrying out subcontracting electrical work. D., negligently allowed P's claim to become time barred. On P's claim for damages, held that P would on the facts have had quite a formidable case against the employers under the Building Regulations, 1948 and that he should accordingly be awarded three-quarters of £2,848 i8s. 5d. to which would be added 12% for the resulting delay : (Gregory v. Tarlo (1964) 108 S.J. 219; The Times, March 6th, 1964, McNair J., (1964) 3 C.C.). Practice—Pleadings. In an action by the plaintiff for damages for personal injuries sustained in a collision between his motor cycle and the defendant's motor car, the defence contained a simple denial of negligence and, although defect in the braking system of the car had been mentioned in correspondence between the

whether a gift which was clearly educational was a valid charitable gift, it xvas not relevant to evaluate the contribution made, but that did not prevent the court from ascertaining, if necessary by evidence, whether a gift had any educational tendency, and that in the present case such evidence must be received ; second, that the gift, which included some objects of historical interest and of artistic interest, though slight, might be of public benefit and was, therefore, a valid charitable bequest. The next-of- kin of the testator appealed : Held, (Harman, Davies and Russell L.JJ.). (1) that on the true construction of the will and codicils the testator's intention was that the entire contents of the studio should be exhibited as a whole, the only exception being that articles not of an antique nature might be disposed of so that the selective exhibition, which was essential to the judge's conclusion, was not justified by the terms of the will. (2) That where the validity of a gift to establish a museum was concerned and the utility of the gift was brought in question, it was essential for the court to know something of the quality and artistic or aesthetic merit of the proposed exhibits in order to judge whether they would be conducive to the education of the public, and for that purpose to hear expert evidence : while the quality and artistic or aesthetic merit of the proposed collection of exhibits was a matter of taste, and tastes differed, there was an accepted canon of taste on which the court had to rely, for it had no judicial knowledge of such matters itself. (3) That the evidence was overwhelming that the collection of proposed exhibits was worthless as a means of education, and no useful purpose could be served by foisting on the public a " mass of junk " and that, therefore, the gifts did not constitute a valid charitable trust. In re Pinion, deed. Westminster Bank Ltd. v. Pinion & Anor. (1964) 2 WL.R. 919. THE INCORPORATED LAW SOCIETY OF IRELAND

EXAMINATION DATES 1965

Examination

Date ist & 2nd Feb. ist & 2nd Feb. 3rd, 4th & 5th Feb.

Last Day for Entry nth Jan. nth Jan. 13th Jan. 12th Jan. 22nd Jan. ist Feb.

First Law Second Law Third Law Preliminary First & Second Irish Book-keeping

2nd & 3rd Feb. 12th February 22nd February

SOLICITORS' BENEVOLENT ASSOCIATION Notice of election to vacant annuity

Take Notice that it is intended to hold an Election for the Solicitors' Benevolent Association Centenary Annuity of £100 per annum. Information and application forms are available from the undersigned to whom completed application forms should be returned not later than loth day of June, 1964. For eligibility attention is drawn to Rules 3 and 31 of the Rules of the Association adopted 26th January, 1962. Dated this i6th day of May, 1964. EUNAN McCARRON, Secretary, Solicitor's Benevolent Association, 18 Hume Street, Dublin. DUBLIN Solicitor with well established and thriving Practice would be interested in amalgamation or Partnership with another. Box. No. A.214. REGISTRATION OF TITLE ACTS, 1891 AND 1942 Issue of New Land Certificate Applications have been received from the registered owners mentioned in the Schedule annexed hereto, for the issue of Certificates of Title in substitution for the original Certificates issued in respect of the lands specified in the said Schedule, which original Certificates, it is alleged, have been lost or inadvertently destroyed. A new Certificate will be issued in each case, except a case in respect of which notification is received in this Registry within 28 days from the publication of this notice, that the Certificate of Title is still in existence, and in the custody of some person other than the registered owner. Any such notification should state the grounds on which such Certificate is being held. Dated the 22nd day of June, 1964. D. L. McAmsTER, Registrar of Titles. THE REGISTRY Register A

EXAMINATION DATES 1964

Examination Book-keeping First and Second Irish First Law Second Law Third Law Preliminary First & Second Irish

Last Day for Entry ist June

Date

22nd June

12th June loth Aug. 12th Aug. loth Aug. nth Aug.

3rd July ist & znd Sept. 4th & 5th Sept. ist, 2nd & 3rd Sept. ist & 2nd Sept.

nth September

2ist Aug.

Kyletombrick containing one undivided ninth part of 86a. ir. i4p. both situate in the Barony of Ormond Lower.

Central Office, Land Registry, Chancery Street, DUBLIN.

SCHEDULE.

TRADE MARKS ACT Members, please note that section 69, subsection 5 comes into operation as and from the ist July, 1964. This subsection makes it illegal for anyone, save a registered trade mark agent, to practise under the act. The latest date for applications to be placed on the registrar is iyth June, 1964. OBITUARY MR. CHARLES S. DOYLE, Solicitor, died on the 3Oth day of April, 1964 at St. Michael's Nursing Home, Dun laoghaire, Dublin. Mr. Doyle served his apprenticeship with the late Mr. Patrick Rooney at 21 Upr. Ormond Quay, Dublin; was admitted in Hilary Sittings 1923, and practised under the style of T. F. O'Connell Rooney & Co., at 34 Kildare Street, Dublin 2.

1. Registered Owner James Cummins. Folio number 313. County Leitrim. Lands of Lisseeghan in the Barony of Leitrim containing zya. zr. I5p. 2. Registered Owner The Offaly Board of Health & Public Assistance. Folio number 8049. County of Kings. Lands of Barnaboy containing za. ir. 36p. and Lands of Kilnagall containing 33. zr. op. both situate in the Barony of Ballyboy and Lands of Moyclare in the Barony of Garrycastle containing 16 sq. feet. 3. Registered Owner Anne Mahon. Folio number 6. County Louth. Lands of Aclint in the Barony of Ardee containing 8a. ir. 29p. Folio number 2040. County Tipperary. Lands of Kyle- tombrick containing cja. 2r. 3jp. and Lands of 4. Registered Owner James Cahalan.

Printed by Cahill & Co., Ltd., Parkgate Printing Works, Dublin.

Vol. 58 No. 2

JUNE 1964

THE GAZETTE of the INCORPORATED LAW SOCIETY OF

IRELAND

President DBSMOND J. COLLINS

Vice-Presidents JOHN MAKER PATRICK NOONAH

Secretary ERIC A. PLUNKETT

FOR CIRCULATION AMONG MEMBERS

CONTENTS OF THE ISSUE

MEETINGS OF THE COUNCIL JUNE IITH : The President in the chair, also present, Messrs. John Carrigan, Francis J. Lanigan, James W. O'Donovan, Gerald J. M. Moloney, Desmond Moran, Peter D. M. Prentice, James R. Green, Dinnen B. Gilmore, Thomas A. O'Reilly, John C. O'Carroll, Joseph P. Black, Thomas H. Bacon, William A. Osborne, Brendan A. McGrath, Peter E. O'Connell, Edward J. Dillon, Patrick O'Donnell, George G. Overend, Gerard M. Doyle, Thomas V. O'Connor, John Maher, Reginald J. Nolan, Patrick Noonan, John J. Nash, Richard Knight, George A. Nolan, Niall S. Gaffhey, Ralph J. Walker. The following was among the business transacted : Solicitor acting for employees of company Members enquired whether there would be any professional objection to their acting for employees of a firm introduced by the personnel manager and a trade union representative for the purpose of making wills in connection with a superannuation scheme and charging a reduced fee having regard to the fact that the work involved is standardised. The Council replied that an introduction in the proposed manner ii

Page ii

Solicitor actingfor employees offirm Photocopies, costs of Conflict of interests, Solicitors' Remuneration General Order 1964 Depositspaid to Auctioneers Housing Loans Town, definition of ... Medical Reports Solicitors' Golfing Society Cases of the Month The Registry Superior Courts Costs Missing Land Certificates

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would be objectionable from the professional point of view and that the intervention of a third party should be limited to informing the employees that it is advisable to make a will and that each testator should make his own arrangements for engaging a solicitor of his choice. Charges for photocopy documents The Council received a report from the costs committee stating the taxing masters would allow the ordinary folio copying charges for copies of documents made in the photocopying method. Conflict of interests. Right to hold documents Members acted for a father and son in a matter which was not completed due to disagreement between the parties. The father subsequently in– structed another solicitor and members enquired whether they should hand over the documents even though they still acted for the son. The documents in question were the agreement executed by the parties and an original lease. The Council on a report from a committee stated that if the father originally instructed members they should continue to hold the agreement on his behalf and should also hold the lease on his behalf unless there has been an outright assignment to the son. The son should be supplied with certified copies of the document on payment of the proper charges. We, the body in that behalf authorised by the Solicitors' Remuneration Act, 1881, as adapted by the Solicitors' Remuneration Act, 1881 (Adaptation) Order, 1946 (S.R. and O. 1946 No. 208) made pursuant to the Adaptation of Enactments Act, 1922, do hereby, in pursuance and execution of the powers given to us by the said Statute as so adapted, and after due compliance with section 3 of the Solicitors' Remuneration Act, 1881, make the annexed general order. i. This order may be cited as the Solicitors' Remuneration General Order, 1964, and this order and the Solicitors' Remuneration General Order, 1884, the Solicitors' Remuneration General Order (No. i), 1920, the Solicitors' Remuneration General Order, 1947, the Solicitors' Remuneration General Order, 1951, and the Solicitors' Remuneration General Order, 1960, shall be read together and may be cited as the Solicitors' Remuneration General Orders, 1884 to 1964. S.I. No. 128 of 1964 SOLICITORS' REMUNERATION GENERAL ORDER, 1964

2. The charges specified in paragraphs 2 to 20 inclusive of Schedule II of the Solicitors' Remuner– ation General Order 1884 (which Schedule was inserted by the Solicitors' Remuneration General Order, 1960, S.I. No. 165 of 1960) shall be increased by the addition of twelve per cent. 3. This Order shall come into operation on the ist day of August, 1964, and shall apply to all business transacted on or after that date. Dated this 27th day of May, 1964. Signed: Cearbhall 0 Dalaigh, Priomh-Bhreitheamh. Cahir Davitt, President of the High Court. Desmond J. Collins, President of the Incorporated Law Society of Ireland. EXPLANATORY NOTE. (This note is not part of the instrument and does not purport to be a legal interpretation thereof.} This Order authorises an increase of twelve per cent, on specified charges in solicitors' costs for non-contentious business. It does not affect the present commission scale fee on sales, purchases, leases, or mortgages. The order was laid before Dail Eireann on 2nd June, 1964, and before Seanad Eireann on loth June, 1964, pursuant to section 6 of the Solicitors' Remuneration Act, 1881. and will take effect unless a resolution disallowing it is passed in either House within one month from the date on which it was laid before the House. The effect of the general order when operative will be to authorise an increase of 12% on each of items 2 to 20 of schedule II to the Solicitors' Remuneration General Order 1960 (handbook page 183). It does not apply to items i and 21 which are discretionary. Calculation of 12% on the various items would be troublesome and it is suggested in drawing up bills that the items should be entered at the amounts at present standing in schedule II and that 12% should be added at the end of the Bill on the total of all items other than discretionary items. If any of the fixed items are reduced or disallowed on taxation a simple adjustment can be made in the sum added at the foot of the bill. Illustration: -£ i. Instructions fee ... ... ... 15 o o 2 20 Fixed items ... ... ... 20 o o Total professional charges ... ... 35 o o Add 12% on items 2 20 ... 2 8 o Professional fees as submitted ... 37 8 o 12

PAYMENT OF DEPOSITS TO AUCTIONEERS

Clause 4 (i) (a) provides (inter alia) that in the case of a house occupied for the first time the amount which in the opinion of the housing authority represents the reasonable cost (including all reason– able incidental expenses) of building the house and the value of the interest of the borrower in the site thereof shall be considered as the value of the house. Clause 4 (i) (b) the value in other cases is to be considered the amount which in the opinion of the housing authority, the house if sold on the open market might reasonably be expected to realise together with so much, if any, of the legal and other incidental expenses to the acquisition of the owner– ship of the house as the housing authority may con– sider proper. Clause 8 provides that a loan shall be repaid with interest within a period not exceeding 35 years from the date of payment of the loan, or, if the loan is made by instalments, from such date as may be as determined by the housing authority. Clause 10 provides that a loan may be repaid either by equal instalments of principal or by an annuity of principal and interest combined and all payments on account of principal or interest shall be made at a periods not exceeding a half year may be determined by the housing authority. Clause 12 sets out the provisions prerequisite to obtaining a loan. There is a schedule to the in– struments setting out scale of fees in connection therewith. STAMP DUTY MEANING OF TOWN Property situate in a County Borough, Borough, Urban District or town. By section 3 3 of the Finance Act, 1961, property situated in a County Borough, Urban District or town is relieved from the 25% stamp duty and qualifies for the ordinary rate even when acquired by a non-national. The statutory certificate must be included in the deed. A town for the purpose of this provision is defined by the Interpretation Act, 1937, No. 38 of 1937, paragraph 32 of the schedule to the Act, as follows : The word " town " means the area comprised in a town not being an urban district in which the Town Improvement (Ireland) Act, 1854, is in operation. MEDICAL REPORTS The following extract is taken from the Journal of the Irish Medical Association, Vol. LIL, No. 309, March, 1963: " Statement for the guidance of members on the subject of reports of medical examinations as approved by Central Council on loth Jan., 1963.

The Auctioneers Association has published a notice to its members advising them that they should not make unauthorised payments out of deposits received in connection with the sale of property. Members were reminded that where an auctioneer receives the deposit as stakeholder he is bound to preserve it intact until completion of the sale at which point he gets authority to' release it to the vendor. If the sale falls through the auctioneer may be required to return the deposit to the purchaser or otherwise dispose of it as the vendor and purchaser mutually agree or as may be directed by the Court. It is pointed out in the notice that if an auctioneer gives credit to one of the parties to a sale and purchase in anticipation of being repaid out of the deposit following a sale of the property it must be regarded as an ordinary commercial risk and that they cannot rely on the deposit as a definite source of repayment. It is pointed out that when an auctioneer is asked to give credit in such circumstances it will be in his own interests to address an enquiry to the vendor's solicitor as to whether or not there will be a surplus of purchase money on the completion of the sale to refund any monies due to the auctioneer. The Council think it advisable to inform members having regard to such enquiries that they should be very careful not to give any assurance which could be regarded as an undertaking without (a) obtaining the definite and irrevocable instructions of the vendor and (b) without ensuring that sufficient monies will come to their hands as vendor's solicitors to satisfy the claim. In fact it is difficult to see any advantage in giving such an assurance and if given it is suggested that there should be a definite dis– claimer of any legal or professional liability thereon. HOUSING LOANS Members please note that under the Housing Authorities (Loans for Acquisition or Construction of Houses) Regulations, 1964 (S.I. No. 130 of 1964): Clause 3 (i) provides that the amount of a loan shall not exceed £2,250 or 95% of the value of the house excluding from that value the amount of any grant under any other enactment. Clause 3 (z) provides that where the borrower surrenders to the housing authority making the loan the tenancy of a dwelling provided by the housing authority under the Housing of the Working Classes Acts, 1890 to 1958 or under the Labourers Acts, 1883 to 1962 the amount of a loan shall not exceed £2,250 or 99% of the value of the house excluding from that value the amount of any grant under any enactment.

Made with