The Gazette 1944-46

Apprentices' Applications. THREE applications from apprentices were con sidered and granted. Applications under Section 47. FOUR applications by solicitors under Section 47 for liberty to take out their practising certificates for the present year were granted. CURRENT TOPICS. Costs of High Court Action—subject matter within Circuit Court jurisdiction. IN the case of Beaumont v. Figgis (79 I.L.T.R. 37) the Supreme Court has recently decided several important questions on the interpretation of O.28 r.2 of the Rules of the Supreme Court and the High Court, 1926 and section 12 of the Courts of Justice Act, 1936. O. 28 r.2 provides generally that, except by order of the Court, no costs shall be allowed to a plaintiff in any action or matter which could have been commenced in the Circuit Court or the District Court, save such costs as would have been recoverable by the plaintiff had the proceedings been commenced in the appropriate Court. Section 12 (1) of the Courts of Justice Act, 1936, prescribes further and stricter limits to the amount of the costs which may be allowed to the plaintiff in seven specified classes of action commenced in the High Court but which could have been com menced in the Circuit Court. Section 12 (3) further provides inter alia that it shall not be lawful for rules of Court to impose any restrictions on the amount of costs recoverable by any party from any other party in any action or other proceeding, but that nothing in the sub-section shall prevent the insertion in rules of Court of a restriction on the amount of the costs recoverable which is identical with a restriction imposed by the section. In Ulster Bank Ltd. v. Hassall (1940 I.R.366) Gavan Duffy, J., held that one effect of the Courts of Justice Act, 1936, Section 12 (3) was to annul O.28 r.2 of the 1926 Rules of Court. As section 12 (1) of the Courts of Justice Act, 1936, did not extend to every class of action falling within O.28 r.3, it was argued that the effect of the decision in Ulster Bank v. Hassall was to remove any restrictions as to the costs recoverable in actions not coming within section 12 (1) of the Act of 1936 and to enable the plaintiff to recover High Court costs in such cases, e.g., in an action for an injunction. The Supreme Court overruled the decision in Ulster Bank v. Hassall and held that (1) Section 12 (3) of the

Courts of Justice Act, 1936, prescribing specified limits to the costs recoverable in the seven classes of action therein dealtjwith, did not revoke rule 2 of Order 28 of the rules of 1926 save in regard to the cases specially mentioned at (a) to (g) in section 12 (1) of the Act; (2) accordingly the costs recoverable in a High Court Action not within section 12 (1) of the Act but which could have been brought in the Circuit Court were still subject to O.28 r.2.; (3) an action for damages and an injunction in which £35 damages had been awarded, to be taxed as if an injunction had been granted, was not an action founded on contract or for damages for breach of contract within section 12 (1) (c) of the Courts of Justice Act, 1936, and the costs should be taxed without regard to the limits imposed by that Act but subject to the limits imposed by O.28 r.2 of the Rules of Court, of 1926. Application for leave to appeal out of time. Appellate courts do not, as a rule, look kindly on applications to extend the time for serving notice of appeal, particularly if made after the time for appealing has expired, and such applica tions are, not surprisingly, of infrequent occur rence. In a recent English case In re Berkeley deceased—Borrer v. Berkeley and others (61 T.L.R.33) an application was made on rather unusual grounds for leave to appeal, notwith standing that the time for appealing had expired. The applicants, who were the defendants in an administration suit in the High Court, were tenant for life and in remainder respectively under a will, and the High Court had given a decision affecting them adversely in regard to a certain annuity payable under the will. In giving his decision the judge had followed a previous decision of the High Court. The Court of Appeal subsequently decided in another case before it that the case followed by the judge of the High Court had been incorrectly decided and over ruled it, but in the interim the time for appealing in re Berkeley deceased had expired and notice of appeal had not been served. In these circum stances the defendants asked the Court of Appeal to extend the time for appealing. The application was granted, but not on the mere ground that the authority followed by the High Court had been subsequently overruled by the Court of Appeal. It was stated by the Master of the Rolls that this fact alone would not be sufficient to justify the Court in extending the time. That alone would be no ground. The Court must take all the circumstances into consideration and has power to enlarge the time if it is just in the