The Gazette 1967/71

house fit for human habitation, the defendents were in breach of that obligation. (Billyack v. Leyland, Construction Co., Ltd. [1968] 1 All. E.R. 783). Discovery—Duty of Solicitor It is the duty of a Solicitor to ensure that his clients appreciate their duty in regard to dis closure on discovery. The scope of discovery is extremely wide and solicitors owe a duty to their clients to ensure the preservation of relevant docu ments that might otherwise be subject to destruc tion in accordance with business routine. At the conclusion of a case held in the Chancery division of the High Court in Eng land on March 20th, 1968, Megarry J. (Rockwell Machine Tool Co. Ltd. v. E. P. Barrus (Con cessionaires) Ltd. and Others—and associated actions; stated, inter alia, "In preparing for trial solicitors bear great responsibility and a heavy burden. Not the least of these burdens is that of discovery. This is of especial weight in a complex case of passing off such as this was. Many liti gants (and not least corporate litigants) have little appreciation of the scope of discovery, and the duty of making full disclosure. So often they neither know nor appreciate the requirement that they must search for and disclose to their adver sary any document which, in the classic phrase of Brett, L. J., "may fairly lead him to a train of inquiry" which may either advance his own case or damage his opponent's. Observations of the learned judge can be found in the all Eng land Reports, May 7th, 1968. (1968, 1 All E. R. page 98). Costs — Discretion of the Supreme Court The Testatrix, an Italian lady who had for many years carried on a business in Dublin, had two married children, a son and a daughter (Mrs. Vella). She had made a Will with her usual solicitor leaving her property equally between them, but about five years later (and several years before her death) she made a second Will, while estranged from her daughter who was then in England, leaving everything to her son. This will was prepared by a solicitor who had not acted for her before and who was no longer in prac tice, or in Ireland at the date of her death. The daughter entered a caveat shortly after her mother's death, but allowed the time for renew ing the caveat to expire, and the son obtained a grant of administration with the second Will annexed. The solicitor who prepared the second

Will was named therein as Executor but renoun ced probate. The daughter issued proceedings to have the second Will condemned. Very shortly before issuing this Summons the daughter had obtained statements from the Witnesses to the second Will. One of the Witnesses made a state ment, verified by Affidavit, and subsesuently give evidence to the effect that he was not present when the Testatrix and the other witness signed the Will, but that the document was brought to him in his shop, already bearing the names of the Testatrix and the other witness, and that he signed it in his shop, in the absence of the other witness. The other witness stated that he occup- pied an office in the same building as the solicitor who drew the Will; that he was requested to step across to witness the Will; that he saw the Testa trix sign and then signed as witness; that another man whom he could not identify was there and stepped up to the table as if to sign as witness, but that he did not actually see him sign his name. The solicitor gave evidence at the trial to the effect that the Will was duly executed in his office, but he could not recollect seeing the second witness sign his name. Davitt P. heard the case, and, on the balance of probabilities, held that the Will was properly executed and that the recollection of the second witness was at fault. He made no order as to the costs of the Plaintiff, who appealed to the Supreme Court on the question of costs only. In the outcome the Plain tiff was allowed costs of a two day hearing in the High Court (the case having taken three days) and the costs of her appeal. The Supreme Court considering that the circumstances were such that a full enquiry into the mode of execution of the Will was properly required, in view of the state ments made by the second witness. The Supreme Court in its reserved judgment noted two points (1) that, by virtue of Article 34 of the Constitution, the Supreme Court has an unfettered jurisdiction to deal with Appeals from the High Court, including Appeals from a descretionary order as to costs made by a High Court Judge, and is at liberty to substitute its descretion for that of the High Court, whether or not it appears that the descretion of the High Court has been exercised on a wrong principle; and (2) that as a general rule a party to a pro bate action who has unsuccessfully opposed the Will is entitled to be allowed his costs out of the estate if there were good grounds for requiring a full enquiry into the circumstances in which the Will was executed. (Vella v. Morelli. I.L.T. & S.J., Vol. 102, p. 334). 43