Costs - 1930- 1959

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This page lists 20 cases, and was prepared on 04 January 2012.

Hulbert -v- Thurston [1931] WN 171
1931 Scrutton LJ	Costs, Litigation Practice
	In a personal injury action, the infant plaintiff obtained judgment in his favour for damages to be awarded. On appeal that judgment was reversed and judgment was entered in favour of the defendant "with the costs including the costs of this appeal". The costs having been taxed, the defendant's solicitor proposed to issue a writ of fi. fa. against the infant plaintiff's next friend, but was told that that was not possible as no order had been made against him. There followed an application for the order to be amended. Held: When the court had allowed the appeal of the defendant it was asked to order that judgment should be entered for her with costs. That was the order drawn up. "In his opinion the addition now asked for was not one that could be made under the slip rule. That rule was intended for the correction of an order which, as drawn up, did not express that which was decided by the Court. It was quite possible that an order in the terms now asked for might have been made if an application had been made at the time, but no such application was made."

In re Leighton's Conveyance [1937] 1 Ch 149
1937 CA Lord Wright MR, Romer LJ	Costs, Land	Casemap
	Rules of court provided that a person suing as a poor person should not be ordered to pay costs. Held: The Order did not prevent the mortgagee adding to her security her costs in an action brought by the mortgagor suing as a poor person. Lord Wright MR said: " Now what the learned judge has done is to deny the ordinary right of a mortgagee to add to his security all costs, charges and expenses reasonably and properly incurred in ascertaining or defending his rights, or in recovering the mortgage debt. It is not really a matter which arises in connection with the awarding of costs. If it had been a question of the awarding of costs as between parties to the action the learned judge could not have ordered Mrs. Priestman to pay any costs, because she was proceeding as a poor person, and under the terms of Order XVI r. 28 'no poor person shall be liable to pay costs to any other party'; but that is not the question at all. What the learned judge has done here has been to do something entirely different from ordering ordinary costs in the action : he has made an order which has the effect, if it stands, of depriving the mortgagee in this case . . . of the ordinary rights of a mortgagee. The mortgagee here was compelled to defend her rights, or at least cannot be said to have acted unreasonably in seeking to defend her rights." Romer LJ said: "Where a mortgagee's title is attacked by somebody who is a stranger to the mortgagee, the circumstances in which the mortgagee is entitled to add his proper costs in defending his title to the mortgagee's security are stated by Sir W. Page-Wood, V.C., in Parker v. Watkins (John 133, 137) where he said this: ' I quite agree that, where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties, he is entitled to charge those expenses against the estate; but if some litigious person chooses to contest his (the mortgagee's) title to the mortgage, that should not affect the parties interested in the equity of redemption, unless they can be shown to have concurred in or assisted the litigation.''

Myers -v- Rothfield [1939] 1 KB 109; [1938] 3 All ER 498
1938 CA	Legal Professions, Costs	Casemap 1 Citers

Egerton -v- Jones [1939] 2 KB 702
1939 CA Sir Wilfred Greene MR, Mackinnon and Finlay LJJ	Landlord and Tenant, Costs	Casemap
	A mortgagee of a leasehold interest claimed that he should have been given notice of a section 146 notice served on the lessee. Held: A mortgagee by subdemise is always at the risk of a lessor obtaining re-entry for breach of covenant without the mortgagee knowing anything about it. He is completely shut out. Every mortgagee, therefore, knows that this is the risk he runs. If, after taking a covenant from his mortgagor to observe the covenants in the lease, he takes no steps whatsoever to satisfy himself from time to time that no breach of covenant is taking place, he is always exposed to the risk that, behind his back and without his knowledge, the lessor will succeed in re-entering, and so determining the lease, with the result that all possibility of relief from forfeiture is lost to the mortgagee. That is one of the risks of the game. Sir Wilfred Greene MR required the mortgagees had to pay the landlord's costs on the solicitor and client basis, rather than the party and party basis, on the principle that the landlord should be indemnified against proper expenses reasonably incurred, which party and party costs would not give them.
	Law of Property Act 1925 146

Myers -v- Elman [1940] AC 282; [1939] 4 All ER 484
1939 HL Viscount Maugham, Lord Wright and Lord Porter	Legal Professions, Costs	Casemap 1 Cites
	A solicitor's duty advising his client on discovery is to investigate the position carefully and to ensure so far as is possible that full and proper disclosure of all relevant documents is made. He has overall responsibility for the process and should not leave it all to his client. The House considered and set out the court's powers to disallow an award of costs, or to award them to be paid by the solicitor personally: "The court's jurisdiction to make a wasted costs order against a solicitor is founded on breach of the duty owed by the solicitor to the court to perform his duty as an officer of the court in promoting within his own sphere the cause of justice." Lord Atkin said: "From time immemorial judges have exercised over solicitors . . a disciplinary jurisdiction in cases of misconduct . . If the Court is deceived or the litigant is improperly delayed or put to unnecessary expense, the solicitor on the record will be held responsible and will be admonished or visited with such pecuniary penalty as the Court thinks necessary in the circumstances of the case. . What is the duty of the solicitor? He is at the early stage of the proceedings engaged in putting before the court on the oath of his client information which may afford evidence at the trial. Obviously he must explain to his client what is the meaning of relevance: and equally obviously he must not necessarily be satisfied by the statement of his client that he has no documents or no more than he chooses to disclose. If he has reasonable ground for supposing that there are others, he must investigate the matter; but he need not go beyond taking reasonable steps to ascertain the truth." As to the awarding of costs against a solicitor, he considered this to be a disciplinary jurisdiction arising by the solicitor's failure in its duty to the court itself, and not a form of summary jurisdiction in contract or tort in awarding compensation. As to the standard of misconduct: “by misconduct is meant something which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute; for example wilfully misleading the Court in the conduct of a case.” Viscount Maugham said: “My Lords, as I understand the judgment of Greer and Slesser L.JJ., those learned judges were of opinion that the jurisdiction of the Court to order a solicitor to pay the cost of proceedings is a punitive power resting on the personal misconduct of the solicitor and precisely similar to the power of striking a solicitor off the rolls or suspending him from practice …. The jurisdiction to strike off the rolls or to suspend a solicitor seems to me to be of a very different character. Apart from the statutory grounds it is of course true that a solicitor may be struck off the rolls or suspended on the ground of professional misconduct, words which have been properly defined as conduct which would reasonably be regarded as disgraceful or dishonourable by solicitors of good repute and competency: in Re a Solicitor. Ex parte The Law Society (1912) 1 K.B. 302. Mere negligence even of a serious character, will not suffice.” and “These cases did not depend on disgraceful or dishonourable conduct by the solicitor, but on mere negligence of a serious character, the result of which was to occasion useless costs to the other parties . . I think the authorities show that the jurisdiction may be exercised where the solicitor is merely negligent.” Lord Wright said: "A solicitor was long ago held to be an officer of the Court on the Roll of which he was entered and as such to be subject to the discipline of that Court. The Court might strike him off or suspend him . . But alongside the jurisdiction to strike off the Roll or to suspend, there existed in the Court the jurisdiction to punish a solicitor or attorney by ordering him to pay costs, sometimes the costs of his own client, sometimes those of the opposite party, sometimes, it may be, of both. The ground of such an order was that the solicitor had been guilty of professional misconduct (as it is generally called) not, however, of so serious a character as to justify striking him off the Roll or suspending him." “The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally as was said by Abinger C.B. in Stevens v. Hill [(1842) 10 M.& W. 28]. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term 'professional misconduct' has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action Thus, it may, in proper cases, take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive, but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action.” Lord Wright went on to say that the jurisdiction applied for the costs of either party, and was as to behaviour which was professional misconduct falling short of what might lead to a striking off, and: “The underlying principle is that the Court has a right and a duty to supervise the conduct of its solicitors and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M & W 28. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an Affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve a personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realise his duty too. The summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence or an action for breach of warranty of authority brought by the person named as Defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party to the action.” and "The summary jurisdiction thus involved a discretion both as to procedure and as to substantive relief ".

Barnard -v- Gorman [1941] AC 378
1941 HL Viscount Simon LC	Administrative, Costs	Casemap 1 Cites 1 Citers
	The court considered awarding costs in a judicial review case: "There will be no order as to costs in this House, as the Crown has very properly agreed (since this is a case of general importance, and the respondent is a poor man) to pay the costs of all parties in any event."

In re Taxation of Costs In re Solicitors [1943] KB 69
1943	Costs, Legal Professions	Casemap 1 Citers

Regina -v- Willesden Justices ex parte Utley [1948] 1 KB 397
1948 Lord Goddard CJ	Magistrates, Costs	Casemap 1 Citers
	The justices had fined a defendant three times the maximum penalty for a driving offence. Counsel appeared for the justices in the Divisional Court to admit that the penalty was in excess of jurisdiction and to assist the court, by reference to case law, as to the course it should adopt. Held: An order of certiorari to quash the conviction was granted, but as to costs against the justices: "It is the rarest thing for this court to give costs against justices. The only case is when justices have done something which calls for strong disapproval from this court. In the present case the justices made a bona fide mistake. If the present applicant had appeared, or had instructed an advocate to appear for him before the justices, the difficulty would not have arisen because the attention of the justices would have been called to the mistake at the time."

Rex -v- Coventry Rent Tribunal Unreported, 1 December 1948
1 Dec 1948 Lord Goddard	Costs	Casemap 1 Citers
	The court would not grant costs against justices or similar tribunals merely because they had made a mistake in law, but only if the tribunal had acted improperly, that is to say perversely or with some disregard of the elementary principles which every court should obey, and even then only if it was a flagrant instance.

Rex -v- Kingston-upon-Hull Rent Tribunal ex parte Black [1949] 1 All ER 260
1949 Goddard L	Costs	Casemap 1 Citers
	A landlord obtained an order of certiorari to quash an order of a rent tribunal which had reduced the rent of certain premises without hearing evidence on behalf of the landlord. Counsel appeared on behalf of the tribunal to oppose the making of the order. The court discussed the award of costs: "We decide this case on the ground that the landlord had to come here at considerable expense to herself, to have the decision of the tribunal quashed, and the tribunal have appeared by counsel and have disputed her right to have an order for certiorari. On the whole, as the tribunal have appeared here and contested the case, we think that the landlord ought to have her costs. … If there had been no appearance by the tribunal, of course we should not have given costs in this case."
	Review of Justices' Decisions Act 1872 3

Korner -v- Korner & Co [1951] 1 Ch 10
1951 CA	Legal Professions, Costs	Casemap 1 Cites 1 Citers
	It was submitted by the receiving parties (being 7 out of 8 defendants) that they should receive an equal portion of the total costs of the defendants by number, that is to say 7/8ths. The taxing master disagreed, permitting each defendant 7/8ths of the general costs of the action, and costs relating to their defences and such part of the fee for instructions for brief and counsel's fees as may be attributable to their defences. Held: The approach taken was a rule of thumb, convenient in an ordinary case. The principle contest had been between the plaintiff and the other, unsuccessful, defendant. No authority compelled the court to allow simply a share of the overall costs of the action in every class of case, even if to follow it would result in injustice. To do so would "be to fly in the face of the generally accepted principle as stated in Ellingsen's case? that the successful party is to be recompensed the liability he had reasonably incurred in defending himself'"

Anglo-Cyprian Agencies -v- Paphos Industries [1951] 1 All ER 8
1951	Costs	Casemap 1 Citers

In re A Debtor [1951] Ch 162
1951	Costs	Casemap 1 Citers

Regina v Highgate Justices ex parte Petrou [1954] 1 All ER 406; [1954] 1 WLR 485
1954 QBD Lord Goddard CJ	Magistrates, Costs	Casemap 1 Citers
	The Appellant was the owner of premises which she let to another party for use as a club. The other party was charged with 10 offences relating to the supply of liquor at the premises and the Appellant was joined to show cause why the club should not be struck off the register. After the hearing, the justices were informed that the costs of the prosecution amounted to 21 guineas. They convicted the manager, fined him £10 and ordered him to pay 20 guineas costs, and also ordered the appellant to pay £100 costs and they ordered the club to be struck off the register. Held. The appeal by way of motion for certiorari suceeded. Costs are to be awarded as compensation, not as punishment. The order against the Appellant was a penalty in the guise of costs. Lord Goddard CJ said: "I regret that any bench of justices could have acted as these justices did. They were not imposing costs on the applicant; they were imposing a penalty on her when she had not been convicted of any offence, but had only come before the court to show cause why the premises should not be struck off the register. Under the guise of making an order for costs, the justices inflicted a penalty of £100, which could only have been intended as a penalty. Since, by their order against [the manager], they had satisfied the costs of the prosecution apart from one guinea certiorari will go..."

Regina -v- Paddington South Rent Tribunal ex parte Millard [1955] 1 All ER 691
1955 Lord Goddard CJ	Costs	Casemap 1 Citers
	Counsel had been appointed for the tribunal to resist an appeal against the order the tribunal had made. Held: As to costs: "It does not matter to the tenant (who is legally aided) whether the costs come out of one fund or another, but so that we should not be making a precedent I do not think we should give costs against the tribunal. We never give costs unless they act improperly."

Polak v Marchioness of Winchester [1956] 1 WLR 818
1956 CA Jenkins LJ	Legal Professions, Costs	Casemap 1 Citers
	Counsel's bill had not been paid at the time the solicitors' bill was presented. Held. The court had an inherent jurisdiction to permit a solicitor to withdraw his incorrect bill of costs and to substitute a fresh correct bill. Jenkins LJ said: "I entirely agree with the judge when he said that one has to take a strict view to maintain the necessary safeguards, and nothing I say is to be regarded as suggesting to solicitors that they can be careless or unbusiness like in a matter such as this, and then as of course apply for and receive the assistance of the court. It is only in exceptional cases, cases of special circumstances, of genuine mistake of inadvertence, that assistance ought to be given."
	Solicitors Act 1843

Edwards -v- Edwards [1958] P 235; [1958] 2 WLR 956; [1958] 2 All ER 179
1958	Costs	Casemap

London County Council -v- Monks [1959] 1 Ch 239; [1958] 3 All ER 6
1958 Danckwerts J	Costs	Casemap 1 Citers
	Danckwerts J considered the powers of the court over money paid in as security: "The real basis of those cases seems . . to be that where the court has the fund under its own control, as in the case of a fund standing to the credit to some account of the Paymaster-General, the Paymaster-General being the officer of the High Court and all the judges of any division of the High Court being judges of that Court, the judges will enforce a High Court judgment by directing their officer to pay out the money or make a charging order on the fund in question, so that the judgment creditor shall not be defeated in regard to satisfaction of the judgment."

Fairfax (John) & Sons -v- E C de Witt & Co [1958] 1 QB 323
1958 CA	Costs	Casemap 1 Citers

Re Cutliffe's Estate [1959] P 6
1959 CA Morris LJ, Hodson LJ	Wills and Probate, Costs	Casemap 1 Cites 1 Citers
	In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English. Held: The testator himself had not been responsible for the litigation. Morris LJ said: "Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised."