The Gazette 1961 - 64

are in substitution for the words " common fund " contained in rule 28 (3) referred to above. It is understood that in this country the costs are allowed only on a party and party basis in cases of this nature. Counsel's discretion as to calling a witness The Court of Criminal Appeal in England dis missed an appeal by Albert Frank Vincent Gatt against a conviction at the Central Criminal Court when he was found guilty by a jury on a count of causing grievous bodily harm with intent upon, and other counts involving grievous bodily harm and wilful treatment of his infant son CarmeUo Gatt for which he was sentenced to six years imprison ment. The court had given leave to appeal and adjourned the hearing of the appeal to enable witnesses to be called. It was contended on behalf of the appellant that at the trial before the jury the appellant's wife although physically present and available to give evidence had not been called because counsel then conducting the defence, without reference to the appellant or the wife, had decided not to call her. The defence was that the child's injuries had been caused by falling from his cot. It was submitted that if the jury had heard Mrs. Gatt's evidence the verdict might have been very different. Counsel stated that he had received a letter from counsel who conducted the defence before the jury and he stated in his letter that as far as he could remember the reasons which prompted him in his discretion not to call Mrs. Gatt were that her condition was highly nervous and almost hysterical and that he formed the view that she would not make a good witness and would make a very bad impression on the jury. He felt that the best interests of his client would be served in not calling her. It was submitted that this had been a grave error of judgment on counsel's part and that had the appellant's wife been called the jury would have returned a different verdict. The appellant and his wife then gave evidence before the Court of Criminal Appeal and two further witnesses were also called. The Lord Chief Justice giving judgment said that the prosecution case was that this was a shocking case of child cruelty. When leave to appeal had been granted the court felt that there was something to be enquired into lest there had been a miscarriage of justice. The jury had been told that there was one other eyewitness whom they had not heard, namely the appellant's wife. At the close of the prosecution's case the court had adjourned to enable instructions to be taken from the appellant but he had not given any instructions to his counsel to call his wife in evidence and counsel accordingly used his discretion and did not call her. Nevertheless 95

settlement, the official solicitor appeared on behalf of the patient and the receiver and a relative of the patient representing a class of persons who might be affected were also represented. Having disposed of the substance of the application Wilberforce J. dealt with the question of the costs. The rules applicable were Rules 28 to 31 of the Supreme Court Costs Rules and the relevant text runs as follows : " Rule 28 (i) This rule applies to costs which by or under these rules or any order or direction of the court are to be paid to a party to any proceedings either by another party to those proceedings or out of any fund (other than a fund which the party to whom the costs are to be paid holds as trustee or personal representative). (2) Subject to the following provisions of this rule, costs to which this rule applies shall be taxed ' on the party and party basis, and on a taxation on that basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed. (3) The court in awarding costs to which this rule applies may in any case in which it thinks fit to do so order or direct that the costs shall be taxed on the common fund basis." From the rules it appears that taxation on a solicitor and own client basis could not be directed and in any event it was inappropriate that such a taxation should be directed in as much as once the client expressly or impliedly approves the costs they are conclusively presumed to have been reasonably incurred and so cannot be challenged by or on behalf of the person who has to pay them. To hold other wise would put the patient at the mercy of other parties both as to the nature of the costs incurred and as to their amount. The rules further provided that taxation on a trustee basis could not, in general, be directed except in favour of a person holding a trust fund in that capacity. There was a general discretion under rule 28 (3) to order taxation on a common fund basis. It was held that it was proper in a normal case to order taxation on a common fund basis of the costs of the successful applicant and the costs of all other interested parties appearing on the application. The costs of the official solicitor would be taxed on a solicitor and own client basis since he appeared for the patient as his client. (Re C.E.F.D. (1963) i All England Reports, page 685.) Note: The corresponding rules in the Rules of the Superior Courts, 1962, are contained in order 99, rule 5, paragraph u (i), (2) and (3). Subparagraph (3) provides that the court in awarding costs may if it thinks fit order that the costs be taxed on a. solicitor and client basis. The words " solicitor and client "