The Gazette 1964/67

what fees were payable as at 1st June (a) 1965 and (b) 1966 to the Land Registry on the lodgment of a transfer of registered land for valuable con sideration, the price being (1) £5,000 and (2) £10,000. Mr. B. Lenihan : On 1st June 1965 the Land Registry fee payable on the registration of a trans fer of land for valuable consideration was £15 6s. in the case of a holding priced £5,000 and £22 16s. in the case of a holding priced £10,000. The corresponding fee on 1st June 1966 was £27 2s. 6d. in the case of a holding priced £5,000 and £40 17s. 6d. in the case of a holding priced £10,000. Mr. Donegan : Does the Minister not think this is a rather disproportionate increase that cannot be justified by the increase in costs? Mr. B. Lenihan : It follows the pattern of in creases in 1956, ten years before that and ten years before that again. Mr. Donegan : It seems to me to be far too high. [22 June 1966] CASES OF THE MONTH Family Provision Applications The following extract from The New Law Journal of 4 August 1966 in relation to the Inher itance (Family Provisions) Act, 1938, is of interest having regard to the letter which appeared from Mr. Dunne, solicitor, Kildare, in the July issue of the Gazette : "Failure to report a case which deserves to stand as a precedent for the future is a very serious matter—and fortunately one of rare occurrence. An example of such failure is, however, provided by the decision of the Court of Appeal in re Hodgkinson (1957), which was concerned with s. 2 (1 a) of the Inheritance (Family Provision Act, 1938, as amended by the Intestates' Estates Act, 1952. Section 2 of the Act of 1938, as amen ded, prescribes a time-limit of six months from the date on which a grant of representation is first taken out, for the purpose of making an application to the court for provision for a depen dant out of the estate. However, the section also empowers the court to extend that limitation period, if not to do so 'would operate unfairly' in consequence of, inter alia '. . . circumstances affecting the administration or distribution of the estate'. Re Hodgkinson was concerned with the scope of these words. In that case the deceased, who had deserted his wife and given her to believe that he had no income, left a considerable estate to his mistress and made statements to his executors which caused him to believe that the

testator was a bachelor. The Court of Appeal decided that these were not 'circumstances' within the meaning of the section. The widow knew of her husband's death about the time of probate and her ignorance of his financial circumstances in no way affected 'the administration or distri bution of the estate' by the executor. The decision of Mr. Justice Roxburgh in re Greaves (1954) 2 All E.R. 109, and that of Mr. Justice Ungoed- Thomas in re McNare (1964) 3 All E.R. 373 conflicted with the decision in Hodgkinson and the Court of Appeal (Harman, Russell and Winn L. J. J.) indicated in the most recent case on the subject, Re Bluston, that neither could stand." Counsels' Fees Allowable on Taxation of Costs as Between Party and Party Stanley v. Phillips was a running down case which commenced in the County Court and was subsequently transferred to the Supreme Court where, following an admission of liability on the part of the defendant, the matter was to proceed as an assessment only. Queen's Counsel was en gaged on behalf of the plaintiff and the defendant objected to payment of his fee when the bill was taxed. The Taxing Master disallowed the objection, upon the defendant appealed to a judge of the Supreme Court who upheld the objection. The plaintiff then appealed to the Full Court of the Supreme Court which by a two-one majority allowed the appeal and disallowed the defendant's objection. It was from the decision of the Full Court of the Supreme Court of Victoria that the defendant subsequently appealed to the High Court. The High Court ruled in favour of the defen dant by a four-one majority, the dissentient being McTiernan J. In his judgment the Chief Justice of the High Court, Sir Garfield Barwick, said : "It is of radical importance in my opinion to identify the question which is presented to the Taxing Master upon objections such as were made in this case. That question concerns the allowance of the fees of more than one counsel. It is not concerned, certainly not directly concerned, with the question of the relative competence of mem bers of the Bar or of sections of the Bar. It is fundamentally concerned with the attainment of justice which expended into its own elements of law in such manner and to such extent that a just result is able to be achieved. As it is to be supposed that the success of the party incurring the fees of counsel will involve the opponent in their pay ment, the expenditure must be confined to what is necessary, which means reasonably necessary, or proper to ensure such a presentation of the case.'' 47