The Gazette 1993

GAZETTE

NOVEMBER 1993

professional fee income already taxed at source in a relevant year-of assessment without the benefit of a tax credit for the tax already suffered at source. The plaintiff contends that section 18 of the said chapter III of the Finance Act, 1987, as amended by section 26( 1 )(a) and (b) of the Finance Act, 1990, is invalid having regard to the Constitution and Article 40 thereof in that, inter alia, the plaintiff is deprived of the benefit of and unable to obtain a set-off for the appropriate tax suffered against his total taxable income for the relevant year of assessment to Income Tax until the following Income Tax year and penalties and interest for late payment of Income Tax liabilities are applicable in a relevant year of assessment in disregard of Withholding Tax already suffered at j source and available for credit in another tax year. The plaintiff claims damages and a declaration that the relevant provisions are invalid having regard to the i Constitution and Article 40 thereof. Lawbrief hopes to keep readers informed of the progress of the case as it may have important ramifications for barristers and solicitors. The case of R. -v- Horsham District | Council and Another, ex parte j Wenman, The Times, October 21, j 1993, provided a warning for solicitors i and barristers in England and Wales ! which may not go unheeded in this jurisdiction. However, it is appreciated that English law is more stringent than | Irish law in relation to costs. Brooke J in a reserved judgment in the Queen's Bench Division stated that the Bar Council could do well to arrange the preparation and publication of a i statement of professional standards to be expected of counsel having the i conduct of judicial review proceedings S if barristers were to be helped to avoid I heavy financial penalties in orders for ' wasted costs made under section 51(6) Lawyers Warned in Judicial Review Cases

| of an alternative statutory remedy, had j to be considered before the judge was j invited to grant leave. The Judge stated that the case disclosed many departures from good ! practice. However, certain elementary errors had been made prior to October 1, 1991 and accordingly, the Judge considered that a wasted costs order should not be made.

of the Supreme Court Act, 1981, as substituted by section 4 of the Courts and Legal Services Act, 1990. The Judge stated that if the new statutory régime were to lead to those ! who held themselves out as competent to practice in as complex a field of | litigation as judicial review to decide : that they did not in fact have the j competence to enable them to avoid the risk of wasted costs orders against them, or to take more active steps to pursue continuing education than was now the norm in order to ensure that they continued to possess the standards of the reasonably competent practitioner in the field, then it must be assumed that those welcome i developments were the intention and I hope of Parliament when it passed the j 1990 Act. | The history of the proceedings revealed areas of sloppiness of thought and departure from proper practice which had become all too commonplace in the conduct of judicial review proceedings before single judges, according to Brooke J. He stated that lawyers, for example, should not regard it as unnecessary to write a letter before taking action ! mainly because they believed it to be ! inevitable that the response would deny their plaintiffs claim. A fortiori, judicial review proceedings, in which the High Court was invited to supervise the way in which inferior bodies performed duties imposed on them by statute, should not ordinarily be embarked upon before the inferior body had received a complaint and had been given an opportunity to say whether or not it accepted it and, if not, to give its reasons. "The history of the proceedings revealed areas of sloppiness of ! thought and departure from proper practice which had • become all too commonplace..." Judicial review proceedings, furthermore, were wholly inappropriate as the forum for the resolution of issues of disputed fact and all material matters, including that of the existence

Practice Direction

The Hon. Mr. Justice Declan Costello, j Acting President of the High Court, i made the following Practice Direction | on September 8, 1993. The Use of Medical Reports and the | Reports of other Expert Witnesses i in Personal Injury and other Actions. 1. In actions in which damages for personal injuries are claimed, counsel should consider whether the attendance at the trial of medical witnesses who have provided medical reports is necessary to explain or supplement such reports. If it is considered that attendance is not necessary a request should be made to the opposing side to admit in evidence the contents of such reports without the necessity of adducing oral testimony. Should the request be acceded to then copies of all admitted reports should be made available for the Court. 2. When a medical witness is called to give evidence, counsel in his/her absolute discretion should decide whether or not to make available for the use of the Court copies of any medical reports furnished by the witness. Counsel should not be required to give |

reasons should the reports not be made available. Should counsel decide to make them available they should first be shown to the opposing party. If no objection is taken, then counsel should indicate (Continued on page 344)

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