The Gazette 1967/71

the British National Insurance (Industrial In juries) Acts. Contributions for occupational injuries benefit purposes only are payable in full by employers and no part of them is recoverable from the insured persons. Mise, Je meas, P. I. COLE Eric A. Plunkett, Esq.,

Cost-Taxation

In an action for damages under the Fatal Ac cidents Acts and the Law Reform (Miscellaneous Provisions) Act, 1934 Karminski J. y approving on behalf of an infant dependant a settlement between the parties, gave judgement on February 16th, 1967 for the first plaintiff for agreed damages, with costs to be taxed on a common fund basis. On May 18th, 1967 the district registrar taxed the first plaintiff's bill of costs and on the same date, without informing the parties of his intention so to do, signed a certificate of taxation. The de fendant on May 31st took out a summons before the district registrar for an extension of time in which to apply for a review of taxation. That summons was dismissed on June 2nd, 1967 and the defendants appealed and also, on June 28th, took out a summons before the Judge in Chambers to set aside the certificate of taxation. The hearing took place in chambers. Chapman J. The proviso to Rules of the Supreme Court Ord. 6 2 r. 33 (2) is mandatory and the cer tificate of taxation is an absolute bar to a review of taxation unless set aside. The proviso does not merely impose a time limit capable of extension under the Rules of the Supreme Court, Ord 3 r. 5. As to the application to set aside the certificate of taxation, Rules of the Supreme Court, Ord. 62 r. 33, contemplates that an opportunity to apply for a review will be open. I find it surprising that the certificate was signed immediately after taxation which is certainly not the practice in London. In my judgement the registrar should not do that unless he has made it absolutely clear to the par ties that that is what he is minded to do and they have consented to his doing so. That is particularly important where, as here, the solicitors on one side are agents for London solicitors who would have to consider whether they desire to apply for a re view. It should be done only with the consent of the parties because they they should have ample opportunity to consider the matter, seeing that all right of appeal will be precluded once the certi ficate is signed. It would be contrary to justice to allow the certificate to stand and the case falls within the principle laid down in In re Furber (1898) 42 Sol. Jo. 613, C.A. (Brown and Another v Youde [1967] 1 WLR p. 1544). 69

CASES OF THE MONTH

Resale by Seller in Possession Where an unpaid seller of goods in possession of the goods resells the goods or part of them un der section 48 of the Sale of Goods Act 1893, the resale rescinds the contract. Thus the buyer is discharged for any further liability to pay the purchase price and the seller is entitled to retain the proceeds of sale whether they be more or less than the contract price. If the proceeds of sale are less (after taking into account the expenses of re sale), the seller is entitled to sue the buyer for damages for non-acceptance. (Gallagher v Shil- cock [1949] 1 AER 921 overruled). (R. V. Ward Ltd. v Bignall [1967] 2 AER 449). Priority Over Agent's Lien on Deposit At an auction, V's farm was sold to P for £30,000 and under the contract a ten per cent deposit was paid to A, an estate agent as stake holder. The purchase price was insufficient to1 dis charge three mortgages on the farm and P sought to have the deposit money used for that purpose. A claimed a lien over the money for his charges. Held: That since P would not be obliged to pay the balance of the purchase price to V but could use the money to discharge incumbrances, so also he could use the deposit which he had paid to a stakeholder; that stakeholder's lien would only attach to the remainder. (Skinner v The Trustee of the Property of Reed [1967.1 2 AER 1286).