The Gazette 1955-58

" Property recovered or preserved." Charging order for costs, A legally aided plaintiff brought a successful action for specific performance of a contract whereby he was to exchange his dwelling house for that of defendant, who was also an assisted person, her contribution being assessed at nil. There was no evidence that the dwelling houses were of different value. The plaintiff paid his maximum contribution of £194, but the Law Society registered against the house conveyed to him, under the Land Charges Act, 1925, a charge for the balance of the costs, some £286. Is the Law Society entitled so to do ? No, said Harman, J. If this was permitted the result would be disastrous to the plaintiff, for having got the house he would have paid not only the " price" for which he agreed but in addition his maximum contribution of £194 and a charge of £286 on his house. The house had not been " recovered or preserved " in the action within the meaning of sect. 3 (4) of the Legal Aid and Advice Act, 1949, and even if it had, it was contrary to the whole policy of the Act that a legally aided person's dwelling house should be made subject to a charge where it happened to be the property recovered or preserved in the action. (Wagg v. The Law Society (1957) 2 All E.R. 274). New trial ordered on account of judge's interruptions at cross-examination of witnesses at trial. In an appeal from a decision dismissing her claim under the Law Reform (Miscellaneous Pro visions) Act 1934 and the Fatal Accident Acts, for damages for negligence and breach of statutory duty, the plaintiff widow made a submission that she had not had a fair trial on the ground that the Trial Judge had frequently interrupted counsel in cross-examining witnesses and had thus not given an opportunity to counsel to conduct the case properly. HELD by the Court of Appeal (Denning, Romer and Parker, L.JJ.) reversing Hallett J. that there should be a new trial since every litigant was entitled to a fair trial at which his case could pro perly be put, and without that no cause could be lost nor could the appellate court affirm that it had been. Per Denning, L.J.—Nevertheless, we are quite clear that the interventions, taken together, were far more than they should have been. In the system of trial which we have evolved in this country,

made absolute to attach the sum of £203 45. .6d. to answer their judgment and order. It was held by Judge Conroy, in discharging the conditional order, that the solicitor's equitable lien was prior in time to the debt of the judgment creditor. This point was well covered by authority and was indeed only right in common sense and justice. (Temple Press Ltd. v. Blogh (1955-56), Ir. Jur. Rep. 53). Mortgage—Tenancy purported to be created by mortgagor before completing purchase. While negotiating for the purchase of a house' the title to which was registered under the Land Registration Act, 1925, the intending purchaser received two sums of money from C., the first expressed to be in respect of advance rent for a flat in the house and the second to be the balance of three years' rent in advance for the flat, the tenancy to commence after the conversion of the house into flats, the rent to be weekly, and should C. vacate the flat on one week's notice any balance of the rent to be refunded. On the day the sale was completed the purchaser executed a charge in Land Registry form and the transfer and charge were duly registered. C. was let into possession a few days after completion of the sale. Is the plaintiff chargee entitled to possession as against C. within 28 days from completion of the order ? Yes, said Harman, J. The arrangement with C. was made before the purchaser had any title to the property, and there was nothing to operate as an estoppel as against the chargee. As against him C. was merely an occupier on sufferance. Even if C. was entitled to a tenancy as against the pur chaser, the tenancy would not have been a valid exercise of the power of leasing conferred by Sect. 99 of the Law of Property Act, 1925, since the tenancy was not granted at a rent and the payments were fines within sect. 205 (i) (xxiii) of the Act. NOTE : Sect. 99 of the Law of Property Act 1925 replaces Sect. 18 (6) of the Conveyancing Act 1881 ; which states that " every lease shall reserve the best rent that can reasonably be obtained . . . without any fine being taken" Section 205 of the 1925 Act is a Section dealing with definitions, and the word defined is " fine " as including a premium or foregift. In Sect. 2 (ix) of the Conveyancing Act 1881, "fine" is also stated to "include a premium or fore-gift, or any payment, considera tion, or benefit in the nature of a fine, premium or fore-gift." (Hughes v. Waite, (1957) i All E.R. 603).