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.”
Judges:
Lord Wright MR, Romer LJ
Citations:
[1937] 1 Ch 149
Jurisdiction:
England and Wales
Cited by:
Cited – Saunders (Executrix of the Will of Rose Maude Gallie, Deceased) v Anglia Building Society HL 9-Nov-1970
The Appellant had signed an assignment of her lease in favour of her nephew. She said she thought the effect of it would protect her right to continue to live in the house. She now appealed rejection of her plea of non est factum.
Held: The . .
Lists of cited by and citing cases may be incomplete.
Costs, Land
Updated: 07 May 2022; Ref: scu.266401
