The Gazette 1955-58

The Nor1hern Ireland Court of Appeal is bound by its previous decisions. The Court of Appeal In Northern Ireland, like the Court of Appeal in England, is bound by its previous decisions, save in the limited and excep tional classes of cases listed in Young v. Bristol Aeroplane Co. Ltd., (1944) K.B. 718. There are three such kinds of cases, as follows :—(i) The Court is entitled and even bound to decide which of two conflicting decisions of its own it will follow ; (2) The Court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion, stand with a decision of the House of Lords ; and (3) The Court is not bound to follow a decision of its own, if it is satisfied that the decision was given, per incuriam. An application to the Court for particulars of a plea of undue influence in a probate action was refused by Lord McDermott L.C.J., and this decis ion was affirmed by the Court of Appeal (Porter and Black, L.JJ. and Shell, J.) on the ground that that Court had decided the same issue in an un- reported case in 1944. Note— Although this question does not appear- to have been determined by the Supreme Court, there is an obiter dictum of Maguire, C.J. in Attorney- General v. C.I.E., 90 I.L.T.R. (1956) at page 141, to the following effect:—" Although there was no express decision to this effect, this Court has acted on the principle that this Court is bound by its own previous decisions. Mr. Micks contends that that principle applies only when there is an express decision on the point in question. I cannot accept that." (Parkinson v. Watson—(1956) N.I. i.) Rehearing permitted, in cases of even conflict ofjudicial opinion. If, in a Court of 3 Judges, one of them should die after argument but before judgment is delivered, and the remaining Judges are divided in opinion, the parties should then be at liberty to enter the appeal for rehearing, but, in the absence of any such rehearing, the order of the Court below should stand. So held by the Northern Ireland Court of Appeal (Lord McDermott, L.C.J. and Black, L.JJ., Porter, L.J. having died before judgment was delivered). (In Re McConnell, (1956) N.I. 151). Costs of three counsel allowed in case of great difficulty. and importance. In an action under the Fatal Accident Acts the defendants paid £1, 8 80 into Court with admission

stantially to the extent of their whole possessions on their death, known to have lived for 15 years as boarding house keeper and boarder. But as the Judge had found that the attention of the sol icitor had been drawn to the prospect of marriage by the plaintiff's son, as another solicitor had given evidence that as a matter of good practice it would be right in those circumstances for a solicitor to ask the question and draw the client's attention to the Wills Act and as Mr. Meyrick himself had admitted that if such a state of affairs had existed there would be such a duty on him, this case was one in which the Judge's decision was at any rate supported by evidence. His Lord ship would leave that matter there, having, he hoped, made it quite clear that he was not en deavouring to set an absurd or extravagant standard of duty for solicitors making wills for their clients. On the first point, the effect of the amendment allowed was to substitute an entirely new con tract for that originally pleaded, and having regard to the lapse of time the defence of the Statute of Limitations was available to the solicitor. The Judge was wrong to permit the amendment after objection had been taken', and the appeal should accordingly be allowed. Lord Justice Ormerod, also concurring, said that no doubt it would be the clear duty of a solicitor, on being instructed to prepare a will, to advise his client of the effect of a subsequent marriage on the will if in fact the client told him that he was intending to get married in the near future, or even if it came to the knowledge of the solicitor in a less direct way than that. But his Lordship did not accept that it was the duty of the solicitor so to advise merely because the question of mar riage had been casually and perhaps equivocally mentioned to the solicitor in an interview, either by a third person, as was the case here, or even by the client himself. Whether such a duty would arise on a case of that kind would depend on the actual words used at the time and all the circum stances in which they were used, including the knowledge of the solicitor as to his client's affairs. In view of the evidence of the plaintiff and her son here, his Lordship was bound to say that he would have felt very reluctant to find that there was a breach of duty by the solicitor, save for his' own admission, in re-examination in answer to the Judge, that if the words which the Judge found were said had been said he would have regarded it as his duty to warn the plaintiff about the effect of a subsequent marriage on her will. (Hall v. Meyrick—(1952) z All E.R. 722).