The Gazette 1952-1955

who had the advantage o f seeing and heating the witnesses. They suggested that your Lordships should hesitate long before overruling his decision. My Lords, this is an argument o f great weight if the credibility o f witnesses has come in question; but in the present case it would appear that the learned judge did not doubt the credibility o f any witness, and formed his view by inference from the evidence as a whole. The Court o f Appeal formed the opposite view by the same method and I agree with that court.” (Benmax v. Austin Motor Co. Ltd. (1955) 1. All E. R. 326). Undue influence—Voluntary settlement containing a power of revocation exercisable only at the discretion of the trustee. The day after attaining her majority a spinster, at the request o f her father and advised only by him and his solicitor, made a voluntary settlement containing a power o f revocation exercisable only at the discretion of the trustee. The property was settled on her for life, then for her children or remoter issue as she would by will or codicil appoint, subject to a power to appoint a life interest to a surviving husband and subject thereto on protective trusts for her father and brother. On becoming aware, nine years later, that the validity o f the deed might be questionable, the settlor endeavoured to persuade the trustee to revoke the trusts. This proving unsuccessful after a further three and a half years she commenced proceedings for a declaration that the deed was void. Could she succeed ? Yes, said Vaisey, J. Undue influence was not confined to cases in which influence was exerted to secure a benefit for the person exerting it, but extended to cases in which a person o f imperfect judgment was placed under the direction of one possessing not only greater experience but also such force as that inherent in such a relation as that between a father and his own child. The settler ought to have been advised carefully, deliberately, separately and independently, which she was not. His lordship also decided, though with some hesitation, that she had not been guilty o f laches. He also expressed the view that any trustee, when taking over the property o f a young girl just of age would be well advised to make quite sure that the trusts have been constituted in circumstances which leave no doubt as to their full validity. (Bullock v. Lloyds Bank Ltd. (1954) 3 All E. R. 726). Costs—Taxation—Review by court—Objection as to quantum. The plaintiff, a Cypriot, brought an action in the High Court against his brother alleging a partnership

in two restaurants in Margate. Both parties were granted certificates o f civil aid under the Legal Aid and Advice Act, 1949. The action was heard before Roxburgh J. in April, 1953 and it was adjourned over with liberty to apply to restore it ( see (1953) 2 A ll E . R. 52). On June 23, 1953, terms of settlement were approved by the judge under which the plaintiff accepted, in full satis­ faction, the sum o f £500, and an order was made for the taxation o f the plaintiff’s and the defendant’s costs. The case was a complicated and difficult one and involved, among other things, the examination o f a witness on commission. The defendant’s country solicitor attended at this examination, and attended also consultations and a conference in London and at the trial there. After the case had been before the court on four days it was adjourned, and it then became necessary for the defendant’s solicitor to prepare supplemental instructions to counsel. Terms of settlement having been agreed between the parties and approved by the judge, an order was made in the action for the taxation o f the defendant’s costs. On taxation the taxing master disallowed or reduced among other items— (a) fees and expenses for the attendance of the country solicitor at the examination o f the witness on commission including the solicitor’s travelling expenses to London; (b) a fee o f £3 3s. for in­ structions to counsel on the examination o f the witness on commission; ( c ) fees for attendances o f the country solicitor at conferences and consulta­ tions and at court in London; (d) a fee o f £630 for instructions for the main brief to counsel; and (e) a fee of £52 10s. for drawing up the supplemental instructions to counsel. The fees mentioned at (a) above were reduced and journey expenses were disallowed on the ground that the attendance of the country solicitor at the examination o f the witness on commission was not necessary. The fee at (b) above was disallowed, the work being taken into consideration in the amount allowed for instructions for brief. The fees at ( c ) above were reduced and, having allowed them at the R.S.C. Appendix N amounts, the taxing master added £ 2 1 to the amount allowed (£210) for instructions for the main brief. In allowing £210 for the instructions for the main brief the taxing master took into consideration in addition to the instructions for the examination o f the witness on commission, the supplemental instructions. On a summons to review the taxation, Held by Harman J. (i) In the circumstances the country solicitor’s attendance at the examination of a witness on commission was justified and as the question whether or not the fees and expenses should be allowed was one of principle, the court had 75