The Gazette 1980

JULY-AUGUST

1

GAZETTE

the appeal to have been vexatious. Section 16 provides that the Board, except when so directed by the Minister (for the Environment), has an absolute discretion whether or not to hold an oral hearing or any reference or appeal to the Board, and further provides for the service of notice on any person who sought an oral hearing, of the Board's decision not to hold an oral hearing of any such person a right to apply to the Minister to give a direction to the Board to hold an oral hearing. Section 18 provides that where the Board is of the opinion that a reference or appeal is vexatious or is being unnecessarily delayed by any party the Board, having given the prescribed period of notice (not less than seven days) to that party, may proceed to determine the appeal notwithstanding the fact that no submission has been made to the Board by that party in relation to the reference or appeal. The Court noted that the only personal interest which the Plaintiff was entitled to claim in the outcome of the proceedings arose from the fact that he resided some four miles away from the questioned development (i.e. Raybestos Manhattan in Co. Cork). Because the Plaintiff had not been professionally represented either in the High Court or the Supreme Court, because the question of his standing to raise the constitutional issue had not been pleaded by the Defendants, and because of the urgency and gravity of the complaint against the development in question, the Supreme Court was prepared to assume, without so holding, that in the particular circumstances the Plaintiff had "sufficient standing to mount an attack on the relevant statutory provisions on the ground of alleged unconstitutionality." With regard to Section 15, the Plaintiff submitted that by the imposition of a deposit of £10 a restriction which he described as being contrary to the democratic nature of the Constitution was imposed on persons wishing to appeal against a decision of a planning authority to grant a permission, and that thereby a discrimination was made between those who had money and those who had not, contrary to Article 40.1 of the Constitution. (1) Held: (per O'Higgins C.J.)

taxation of costs as though the bill were that of an independent solicitor. 2. There was no reason to suppose that the conventional method was other than appropriate to the case of both independent solicitors and employed solicitors. 3. It was a sensible and reasonable presumption that the figure arrived at on this basis would not infringe the principle that the taxed costs should not be more than an indemnity to the party against the expense to which he has been put in the litigation. 4. There might be certain cases in which it became clear that the principle would be infringed if the method of taxation appropriate to an independent solicitor's bill was entirely applied; it would be impractical and wrong in all cases of employed solicitors to require a total exposition and breakdown of the activities and expenses of the department with a view to ensur- ing that the principle was not infringed. Held (per Finlay P.) that the order made by the Master be varied and an order entered in lieu thereof that the final judgment to the Plaintiffs be with default costs as provided in the Rules of Court and in addition a measured sum of £35 in respect of the hearing before the Master (thus following the practice until recently followed by the Master of allowing costs on the default scale) and also a sum for measured costs of the hearing before him. The Governor and Company of the Bank of Ireland v. Thomas P. Lyons - High Court (per Finlay P.) - 2 November 1979 — unreported. CONSTITUTION Sections 15,16 and 18 of the Local Government (Planning & De- velopment) Act, 1976 not repugnant to the Constitution. The Plaintiff (appearing in person) sought a declaration that Sections 15, 16 and 18 of the Local Government (Planning & Develop- ment) Act, 1976 were repugnant to the Constitution. Section 15 provides for the lodgment by an appellant to the Planning Board ("the Board") of a deposit of £10 with the Board and for its return after the determination of the appeal unless the Board deems

entitled to be remunerated. Section 5 of the Act of 1870 provides (inter alia), in relation to such an agreement, that it shall not affect the amount of or any rights or remedies for the recovery of any costs payable to the client by any other person, and that any such other person may require any costs payable by him to the client to be taxed according to the rules for taxation of costs unless otherwise agreed, provided however that the client who has entered into such an agreement shall not be entitled to recover from any other person under any order for the payment of costs embraced by such agreement more than the amount payable by the client to his own solicitor under the agreement. The Court considered that if this was the basis for the limitation on costs imposed in the Master's Order then it appeared that the order made by the Master went far beyond a mere compliance with the proviso contained in Section 5 of the Act of 1870. The Court further considered that if this was the issue before it it would be simply decided by holding that the proviso in Section 5 of the Act of 1870 did not warrant or justify confining the Plaintiffs' costs to outlay and counsel's fees where the proceedings were conducted by the Plaintiffs' law agent as a salaried solicitor. The Court considered that the more important questions to be decided were these: 1. What was the appropriate Order if that was not it? 2. On whom did the onus lie in such a situation to prove that no more than the amount of the costs payable by the client to his owh solicitor was being recovered? In reviewing the relevant authori- ties the Court referred to the common law principle approved by Cousins- Hardy M.R. in Gundery v. Sainsbury [1910] 1LB 645, namely, that costs must always be considered as an indemnity to the person entitled to them and must not be imposed as a punishment on one party or given as a bonus to the other. The Court considered the criteria laid down by the Court of Appeal in Re East- wood, deceased [1975] Ch. 112, at p. 113) for cases where the person entitled to costs was represented by a salaried solicitor (the Treasury Solici- tor in that particular case) and which (briefly stated) were as follows: 1. It was proper to deal with the

That this submission was without substance; that the purpose of