The Gazette 1974

As regards Counsel's fees, Butler J., having tried the case, stated that £11,125 damages had been recovered, although only £1,775 had been lodged with the defence- As this was a complicated case, he would allow a brie» fee to Senior Counsel of 75 guineas, with conseque»» 1 increases in other items relating to Counsel's fees. [Kelly v. Hoey; Butler J.; unreported; 18 December 1973.] Priest-Teacher is given credit for service Exclusion rule unconstitutional In a reserved judgment delivered in the High Court, Dublin, Mr. Justice Butler held to be u n c o n s t i t u t i o n a' a Department of Education rule, which excluded reli- gious teachers from receiving credit for teaching service in under-developed countries. , /j Mr. Justice Butler granted a declaration to this etiec to the Rev. Francis Mulloy, a member of the H°ly Ghost Or d e r, who is attached to the teaching staff 0 Templeogue College, Dublin. Father Mulloy had sued the Minister for Educatio 11 and the Attorney-General claiming that the Rules f° r the Payment of Incremental Salaries to Secondary Teachers, 1958, as amended by the Department in 197 b granting the benefits of the scheme to lay teachers onh were unconstitutional. T h e scheme was introduced to encourage secondary teachers to give service in under-developed countries- In his judgment, Mr. Justice Butler said that Father Mulloy had taught in Blackrock College, Dublin, fi" olT1 1954 to 1956, being registered as a secondary teache r under the regulations of the Department of Educatio» 1 in 1955. Registration qualified a secondary teacher t0 be paid incremental salary by the Department in accor- dance with certain rules. It was difficult to know by whom these rules were made or under what authority- Some were stated to have been ma de by the Minister» ma ny were not signed by him. T h e rules with whi c ° the Court was principally concerned were not attribute 0 to, or signed by anybody. None of them appeared t0 him to have any statutory force or effect and had never been considered by the Oireachtas. . Mr. Justice Butler said the amount of the i n c r e m e n ts salary was calculated on the number of years a p p r o v e 0 teaching service of the teacher. Went to Nigeria In 1956 Father Mulloy left to go to Nigeria on the missions. He had completed his first year of approve 0 teaching service after registration, so that thereafter had he continued teaching in Ireland and otherwise satisfied the regulations, he would have been quahfie 0 to receive incremental salary. In Nigeria he had taugh* first in a secondary school in Mbisi and, f r om January 1960, to the school year 1965 at the Holy Ghost Colleg e in Owerri. T h e latter was a full secondary school providing 3 range of tuition as extensive as and of a standard n° l lower than that given in recognised secondary schools in Ireland. F r om 1965 to 1968 Fa t h er Mulloy *** assigned to a seminary in Nigeria and then returned t0 Ireland. Since 1968 he had been a teacher in Templ e ' ogue College, which was a recognised secondary school and he had been in receipt of incremental salary. Th e present case arose because of a dispute with the Depart' ment as to the rate at which this salary should be paid' a b r o a d-

but nevertheless prevent him from exercising a free volition as to whether he should or should not do that act. In this case the accused understood the wrong- fulness of act, but was debarred from refraining from assaulting his wife fatally because of a defect of reason due to mental illness. Griffin J. states that Henchy J.'s test would be a correct test for Judge Deale to apply in determining whether the act of the youth who burnt the abbatoir in Bray was malicious. It follows that this is not a case of legal insanity which would absolve the youth from criminal responsibility. Counsel for the County Council contend that they are entitled to investigate whether the applicant was insured against damages for fire, and, if so, is not entitled to recover compensation under the criminal injury code, otherwise he would be getting unjust en- richment. As a policy of fire insurance is simply a con- tract of indemnity, it follows that all claims of the insured arising out of any ground of legal responsibility vest in the insured by subrogation. T h e case of Bally- magauran Co-operative v. Cavan and Leitrim County Councils (1915), 2 I.R., where it was held in a criminal injury that the fact that the premises damaged were insured against fire cannot be taken into consideration when assessing the amount of compensation to be re- covered from the County by the owner, was followed. It follows that this question was correctly disallowed by Judge Deale. [Doyle v. Wicklow County Council; full Supreme Cou r t; per Griffin J.; unreported; 14 December 1973.] Taxation of costs. Amounts for professional witnesses and reports should be reasonable. Application to review taxation of costs of jury trial held before Butler J. from 13 to 15 July 1971. T he taxation was first held in J a nu a ry 1972, and completed in April 1972. T h e Taxing Master set out the following correct principles on which he acted : (1) In the absence of any special order by the Court costs are to be taxed on a party and party basis. (2) In costs as between party and party, the party awarded costs is not entitled to a full indemnity, but only to such costs as have been reasonably or properly incurred to enable him to conduct the litigation. (3) Witnesses charges are to be charged on a party and party basis in accordance with expenses reasonably incurred. Butler J. held that any witness whose attendance is directed by Counsel in his advice on proofs is a neces- sary witness, similarly if Counsel directs that any expert or technical opinion, advice or information be sought, the procuring of this is prima facie necessary. In ascer- taining the expenses to be allowed to a witness for attendance, Or d er 99 Rule 37 (8) of the Rules of the Superior Courts 1970 would allow costs of travel, maintenance and attendance, provided these are reas- onable. It is for the party seeking the costs to produce vouchers or other evidence of the actual expenditure. A party should not be required in asking for a report, i.e. a medical report, to indicate the ma x imum fee he can pay. Prima facie the expense actually incurred should be incurred, provided it is in line with similar fees charged by professional men of similar standing. Accordingly Butler J. directed that items 86 to 88, 90 to 95, and 97 should be remitted to the Taxing Master for re-taxation.

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