The Gazette 1984

GAZETTE

APRIL. 1984

Patrick J. McEllin An Appreciation

residential property, together with furniture and contents nowadays, can absorb such a substantial amount of the threshold that the balance of the tax free threshold does not permit of satisfactory provision for a surviving spouse. Indeed, in some cases, the hardship can be such that the surviving spouse may have to sell 'the family home' and make other arrangements that should not be necessary and would not have occurred under the statutory provisions and the values prevailing when the original legislation was introduced. •

The saying "A lawyer and a gentleman" has been loosely applied and originated long before Paddy's time, but in his professional and personal life it can truly be applied to him. In the forty years which he practised in his home town of Claremorris he earned himself the reputation of loyalty, deep understanding of, and consideration for, his clients and their welfare, whose interests he tirelessly and selflessly worked for, and for whom he made numerous sacrifices, earning for himself the title of "lay confessor". We shall never know the hours of leisure time he foresook, just to attend a distant District Court. When Paddy died on the morning of the 26th April last it may have been a blessing as his last illness may well have interfered with his ability to communicate, an ability which had been one of his great loves. He would have - His God and his Church which he served with great piety and devotion without seeking public accolade tor such virtues, and in truly making "every man his neighbour". - His wife, Eileen and his children, to whom he was devoted and for whom he made many personal sacrifices. - His profession. Nowhere in Paddy's long career is there a known instance of an exaggerated statement or a mis-stated fact. Any words that came from him had the unmistakable ring of authenticity. Because of this reputation and despite his efforts at self-deprecation, he was chosen annually, unanimously, by his professional colleagues in Connacht to represent them on the Council of the Law Society, on which he served so diligently and so well. In the practice of the law, although his accomplish- ments are legend, his strong suit was the common law, particularly negligence cases. Paddy was a private, quiet man, little given to self- promotion, but within his circle of friends and associates he gained acceptance as a fount of wisdom a mantle he tried to discard with a superb sense of humour. With Paddy's death the legal profession has lost one of the most kind, courteous, considerate and certainly one of the most courageous people we have ever had the pleasure to know. " Farewell dear friend That smile, that harmless mirth disliked to be dependent on others. Paddy had his priorities in order:

The Uncertain and Crooked Cord of Discretion — (continued from p. 113) far more disagreeable to substitute the rule of caprice for that of law. The most famous warning in the history of our fiscal law is constituted by The Case of Ship Money (1637) 3 St. Tr. 825. It could be strongly argued that it was contrary to fiscal equity that the financial burden of providing warships (or their money equivalent) for the defence of the whole realm should fall exclusively on the inhabitants of maritime towns and districts, to the exoneration of inland citizens: yet such, it seems, was the law of the land; and the Judges who appear to have stretched the law have not escaped the censure of history": 94 per Lord Simon of Glaisdale. In the light of these authorities the Furniss -v- Dawson approach is highly suspect. The examples referred to earlier in this article indicate the uncertainty and injustice which the approach will create in a branch of the law which even now is not conspicuous for either clarity or abstract justice. The intervention of judge-made law for which there appears to be no constitutional authority will not improve the position. The Department of Finance is unique among the Departments of State in having annual access to the Legislature, and it has not been slow in requesting anti- avoidance legislation of which the new ss.20, 21 and 22 Finance (Miscellaneous Provisions) Act 1968 as substituted by s.29(3) Finance Act 1981 are but one example. Such legislation, if complex, is at least precise, certainly more so than judge-made law where judicial dicta are merely obiter if not related to the particular matter in issue. Legislation seeking to tax A on a profit accruing to B normally incorporates statutory machinery enabling A to recover from B the tax which he (A) has been required to pay (see for example s.21(l) Finance (Miscellaneous Provisions) Act 1968, as substituted). The Furniss -v- Dawson approach, on the other hand, as has already been remarked, is significantly lacking in this respect. Contrary to what Lord Scarman suggests in Furniss -v- Dawson taxation is not an area which lends itself readily to judge-made law. In a branch of the law which is purely statutory with no common law infrastructure the role of the judiciary, as Lord Donovan pointed out in Mangin -v- CIR [1971] 1 All ER 179,185, is to interpret rather than to innovate. To do otherwise is, in the words of Lord Simon of Glaisdale in Ransom -v- Higgs 50 TC 1,94, to substitute the rule of caprice for that of law, a retrograde step which it is to be hoped the Irish judiciary will be slow to take.

No more shall gladden Our domestic hearth."

Sit Tibi Terra Levis.

W.B.A.

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