The Gazette 1955-58

There is just as great, or an* even greater, necessity to-day to guard the principle from being sapped. I recoil from the proposition that it was the intention of the Legislature to trample underfoot in such an oblique fashion an old and cherished principle established for the perfect administration of justice, and for the protection of the confidence which exists between a solicitor and his client. In my opinion, this common-law right has been left untouched by the statute. If the Legislature had meant to alter this common-law right, it is to be expected that it would have done so expressly plainly and unambiguously. Certainly it has not done so expressly, and I do not think it can be said to have been done by necessary implication." Discretion of the Court to order a successful defendant to pay the plaintiff's costs. In an action for possession of a dwellinghouse which was within the protection of the Rent Restrictions Acts on the grounds that the defendant had committed a nuisance or annoyance to adjoining occupiers the County Court Judge in England held that the plaintiff had established a case of nuisance or annoyance, but refused to make an order for possession. He ordered the defendant to pay the plaintiff's costs. On appeal it was held by the Court of Appeal (i) that although the terms of Order 47 Rule i of the County Court Rules 1936 appeared to put no limit on the way in which a County Court Judge could exercise his discretion as to costs, it was not a proper exercise of the judicial discretion, in the ordinary case where a defendant had been wholly successful, to order such defendant to pay the plaintiff's costs and that such an order would be one upon which an appeal would be entertained. (2) However, in a possession application under the Rent Acts, if the plaintiff establishes facts giving the Court jurisdiction to make an order, it may nevertheless then withhold relief by reason of matters of which the plaintiff had had no knowledge, and, accordingly, there was no reason for limiting the judge's discretion as to costs ; and consequently, the order as to costs in this case should not be interfered with. Per Evershed, MR. : " I should like to say that it must be a very unusual thing to order the success– ful defendant to pay the costs ; and it would only be in exceptional cases that a judge would think it right to make such an order. Still, this is a matter of discretion; and unless it is shown here that the judge erred upon some matter of principle, we should not, according to the well established rules applicable to such matters, vary the discretion of the judge or seek to substitute a discretion of our own." (Ottrvay v. Jones [1955] i. W.L.R. 707.)

relating to the administration or enforcement of that act or any other act imposing taxes or duties. (There appears to be no corresponding statutory power in the Irish Revenue Commissioners but there is a some what analogous provision in section 103 of the Income Tax Act 1918.) On the hearing of the information the magistrate stated a case for the opinion of the Supreme Court on the question whether notwithstanding the provisions of the Income Tax 1923 as amended the defendant in his capacity as a solicitor was privileged, and if so to what extent, from furnishing the information and producing the books and documents sought by the Commissioner of Inland Revenue without the client's authority. The members of the Court of Appeal (Fair, Gresson, Hay and North, JJ. Stanton, J. dissenting) held that the question in the case stated should be answered in the affirmative. The majority judgments dealt with the common law and statute position very fully and the general ground for the majority decision was that the client's privilege and the solicitor's obligation to honour it are an important principle necessary for the administration of justice, and that whereas the legislature is competent to abrogate it by statute this cannot be done by a sidewind and that in accordance with the general principles of construction of statutes affecting private liberties the words of the statute under consideration were not sufficiently direct to authorise the court to hold that the abrogation of the privilege was intended as a necessary consequence of the act. Stanton J. in a dissenting judgment held that whatever the court might think as to the propriety and wisdom of abrogating the privilege it was clearly competent for the legislature to do so and in his opinion the consequence clearly flowed from a reasonable construction of the act. The decision is not binding on the Irish Courts but it will certainly be worth citing if the right of the Revenue Com– missioners here to require information from solicitors under section 103 of the Income Tax Act 1918 is ever challenged (Commissioner of Inland Revenue i>. West-Walker, 1954, New Zealand Law Reports, Per Gresson, J. : " No rule of law is better settled than the rule that statutes which encroach on the ordinary rights of the subject, whether as to person or property, are subject to a strict construc– tion. The Courts are presumed to incline to such an interpretation of such statutes as will preserve the subject's rights unless express words or clear implication require the opposite result. The law regards with care the rights of individuals ; and unless a statute restricts those rights by language beyond reasonable doubt they should be left un– touched by the Courts