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Costs - From: 1849 To: 1899

This page lists 47 cases, and was prepared on 20 May 2019.

 
Harris v Hamlyn [1849] EngR 725 (A); (1849) 3 De G and Sm 470
12 Jun 1849


Costs
Where the solicitor to the Suitors' Fund has been appointed to act, and acts as guardian for infant defendants in a foreclosure suit, at the request of the Plaintiff, under the 28th Order of October 1842, the Court upon making a decee of foreclosure will direct the Plaintiff to pay the guardian's costs, and to add them to his own, even where tbe security is inadequate.
[ Commonlii ]
 
Wellesley v Wellesley, Countess Of Mornington v Earl Of Mornington And Others [1852] EngR 313 (A); (1852) 1 De G M and G 501
27 Feb 1852


Costs

1 Cites

[ Commonlii ]

 
 Lyon v Baker; 30-Jun-1852 - [1852] EngR 796 (A); (1852) 5 De G and Sm 622

 
 Patching v Dubbins; 1853 - (1853) Kay 1; [1853] EngR 894; (1853) 69 ER 1
 
Money v Money [1853] EngR 1040; (1853) 1 Sp Ecc and Ad 117; (1853) 164 ER 68
28 Nov 1853


Ecclesiastical, Costs
Arches Court of Canterbury -In a matrimonial suit, the husband retained one counsel only, and the wife's proctor, conceiving she could not claim the privilege of two, also retained one only, but for the hearing was induced to retain a second The costs thereof being allowed upon taxation, the proctor for the husband objected to the Registrar's report.
Held that the ordinary. practice of the Court was to have two counsel on each side; that a wife was primai facie therefore entitled thereto, arid that the special circumstances of the present case dld not afford sufficiient ground for exception.
[ Commonlii ]
 
Lindo v Barrett (1856) 9 Moore 456; (1856) 15 ER 371
1856
PC

Costs
The Board refused the appellant's application, made a year after the order allowing its substantive appeal, for an order for the costs of the appeal: "[I]t is impossible now, after the matter has been disposed of, and the Order in Council acted upon, to grant costs. Upon the whole, their Lordships are of opinion, that they can make no Order."
1 Citers


 
Henry Smith v The Great Western Railway Company [1856] EngR 10; (1856) 6 El and Bl 405; (1856) 119 ER 916
1856


Costs

[ Commonlii ]
 
Wheatcroft v Foster [1858] EngR 833; (1858) El Bl and El 737; (1858) 120 ER 685
10 Jun 1858


Costs

[ Commonlii ]
 
Anderson v Radcliffe And Walker [1858] EngR 836; (1858) El Bl and El 806; (1858) 120 ER 710
11 Jun 1858


Torts - Other, Costs

[ Commonlii ]
 
Holmes v Pemberton, In Re Pemberton Against Holmes [1859] EngR 173; (1859) 1 El and El 369; (1859) 120 ER 948
11 Jan 1859


Costs
An audita, querela is an action; and therefore the plaintiff in that proceeding will be compelled to give security for costs, in cases where such security would be required in ordinary actions.
[ Commonlii ]
 
Dickens v Dickens [1859] EngR 391; (1859) 2 Sw and Tr 103; (1859) 164 ER 931
9 Mar 1859


Costs, Family
Wife's Costs. - Wife's Petition. - Taxed Costs during Suit - Practice - On taxation of wife's costs in a petition for judicial separation pending suit, the registrar disallowed all costs incurred before actual proceedings taken against the husband, and various items charged for attendance on the wife's father in connection with her case. On cause shewn against a rule nisi for a review of taxation :- The Court affirmed the registrar's taxation as being in accordance with the practice of both the common law and ecclesiastical courts.
[ Commonlii ]
 
Harold v Smith (1860) 5 HandN 381
1860

Baron Bramwell
Costs
"Before stating the principle on which the Master acted on this taxation, it may be as well that I should state what we consider the principle upon which he ought to have acted. I think the question is one of considerable importance, and therefore, although it is only a question of reviewing taxation costs, I go into it at some length.
Costs as between party and party are given by the law as an indemnity to the person entitled to them: they are not imposed as a punishment on the party who pays them, nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out, the extent to which costs ought to be allowed is also ascertained. Of course, I do not say there are not exceptional cases, in which certain arbitrary rules of taxation have been laid down; but, as a general rule, costs are an indemnity, and the principle is this, - find out the damnification, and then you find out the costs which should be allowed."
1 Citers


 
Dooly v The Great Northern Railway Company [1860] EngR 393; (1860) 2 El and El 576; (1860) 121 ER 217
27 Jan 1860


Costs, Legal Professions
By reason of stat. 11 Hen. 7, c. 12, and Reg. Gen. Hil. 1853, r. 121, where a plaintiff sues in forma pauperis, arid obtains a verdict arid the Judge's certificate for costs, whatever be the amount recovered, nothing is to be allowed on taxation of costs in respect of fees to the plaintiffs counsel, or by way of remuneration for the services of the plaintiff's attorney. In a case where the Court bad previously so held, the Court now refused an application by the plaintiff for a rule to enter a suggestion on the roll to deprive the plaintiff of costs; the object of the application being that error might be brought on the former decision, and the Court holding that error could riot be brought.
[ Commonlii ]
 
Jackson v Everett [1862] EngR 304; (1862) 1 B and S 858; (1862) 121 ER 932
20 Jan 1862


Costs

[ Commonlii ]
 
Re English And Irish Church And University Assurance Society Hunt's Annuity Case [1862] EngR 1184; (1862) 1 H and M 79; (1862) B)
19 Dec 1862


Costs
On a Defendant submitting to Plaintiff’s demands, the Plaintiff ought not to bring the cause to a hearing without first applying for Defendant’s consent to have the costs disposed of on motion. But if the Defendant objects to that course, a motion that the Defendant may pay the costs of the suit will be refused.
[ Commonlii ]
 
Mitchell v Gard (1863) 3 Sw and Tr 275
1863

Sir James Wilde
Costs, Wills and Probate
The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate. Held: Sir James Wilde said: "The basis of all rule on this subject should rest upon the degree of blame to be imputed to the respective parties; and the question who shall bear the costs? will be answered with this other question, whose fault was it that they were incurred? If the fault lies at the door of the testator, his testamentary papers being surrounded with confusion or uncertainty in law or fact, it is just that the costs of ascertaining his will should be defrayed by his estate.
But if the testator be not in fault, and those benefited by the will not to blame, to whom is the litigation to be attributed? In the litigation entertained by other Courts, this question is in general easily solved by the presumption that the losing party must needs be in the wrong, and, if in the wrong, the cause of a needless contest. But other considerations arise in this Court. It is the function of this Court to investigate the execution of a will and the capacity of the maker, and having done so, to ascertain and declare what is the will of the testator. If fair circumstances of doubt or suspicion arise to obscure this question, a judicial enquiry is in a manner forced upon it. Those who are instrumental in bringing about and subserving this enquiry are not wholly in the wrong, even if they do not succeed. And so it comes that this Court has been in the practice on such occasions of deviating from the common rule in other Courts, and of relieving the losing party from costs, if chargeable with no other blame than that of having failed in a suit which was justified by good and sufficient grounds for doubt.
From these considerations, the court deduces the two following rules for its future guidance: first, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question whether the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent."
1 Citers


 
Clark v Malpas [1863] EngR 107; (1862-1863) 31 Beav 554; (1863) 54 ER 1253
13 Jan 1863


Costs
The cost of bridging up witnesses for cross-examination in Court allowed, in a taxation between party and party, although they had not been actually cross-examined. Shorthand writer's notes of the Cross-examination of witnesses in Court allowed, but costs of his notes of the judgment disallowed, on a taxation between party arid party.
1 Cites

[ Commonlii ]
 
Lady Mary Topham v Duke Of Portland [1863] EngR 721; (1863) 1 De G J and S 603; (1863) 46 ER 239
20 Jun 1863


Costs
Commonlii The costs of an application to stay the execution of a decree pending an appeal to the House of Lords were to be paid by the applicant.
1 Cites

1 Citers

[ Commonlii ]
 
Wilson v Hood and Whitehouse [1864] EngR 410; (1864) 3 H and C 148; (1864) 159 ER 484
28 Apr 1864


Legal Professions, Costs

[ Commonlii ]
 
Thompson v Hudson [1864] EngR 699 (A); (1864) 34 Beav 107
3 Nov 1864

Sir John Romilly MR
Contract, Costs
A judgment creditor, whose debt had been satisfied but who had not entered satisfaction on the rolls, was made a Defendant to a foreclosure suit. He disclaimed. Held, that he was not entitled to his costs, in consequence of his negligence in not entering up satisfaction of his judgment,
[ Commonlii ]
 
Re Kitton [1866] EngR 51; (1866) 35 Beav 369; (1866) 55 ER 938
11 Jan 1866


Costs

[ Commonlii ]
 
Re The Humber Iron Works Company [1866] EngR 125; (1866) 35 Beav 346; (1866) B)
12 Mar 1866


Insolvency, Costs

[ Commonlii ]
 
In Re Wield's Patent [1871] EngR 53; (1871) 8 Moo PC NS 300; (1871) 17 ER 325
7 Dec 1871
PC

Intellectual Property, Costs
Accounts of profits and loss filed by a Patentee on his application for a prolongation of the term of Letters Patent being prima facie unsatisfactory, the Judicial Commiittee directedt the question of accounts to be taken before considering the merits of the invention. As the accounts were not satisfactory explained, the application for a prolongation was refused. Considerations which induce the Judicial Committee to give costs to bona fide Opponents.
[ Commonlii ]
 
Davies v Gregory (1873) LR 3 PandD 28
1873

Sir James Hannen
WIlls and Probate, Costs
After a contested application, the court pronounced in favour of the will. Held: Sir James Hannen did not agree that the first rule or exception applied only in cases where the state in which the deceased left his papers had given rise to the litigation, and said the reason why costs were payable out of the estate was: "because the conduct of [the] testator himself caused the litigation." and
"That principle having once been extracted from the decisions, we should no longer slavishly confine ourselves to precisely the same state of facts in applying it, but should apply it to all cases to which it is fairly applicable. The principle being as I have stated, the question to be determined in each case is this: Is the testator, by reason of his conduct, to be considered the cause of the reasonable litigation which has occurred after his death as to the validity of his will?"
. . and "Where the facts show that neither the testator nor the persons interested in the residue have been to blame, but where the opponents of the will have been led reasonably to the bona fide belief that there was good ground for impeaching the will, there will be no order as to costs. Of course the opponents must have taken all proper steps to inform themselves as to the facts of the case, but if, having done so, they bona fide believe in the existence of a state of things which, if it did exist, would justify litigation, then, although no blame should attach to the testator or to the executors and persons interested in the residue, each party must bear his own costs."
The costs of an unsuccessful opposition to a will must be paid out of the estate in cases where the testator, by his own conduct, and habits, and mode of life, has given the opponents of the will reasonable ground for questioning his testamentary capacity.
1 Citers


 
Regina v Goodall (1874) LR 9 QB 557
1874

Cockburn CJ
Magistrates, Costs
The Divisional Court could, in some cases inflict costs on justices who were guilty of some gross impropriety.
1 Citers


 
Smith v Buller [1874-80] All ER 425; 27 WR 803; (1875) LR 19 EQ 473
1875

Sir R Malins V-C
Intellectual Property, Costs
The plaintiff in a patent case had failed, and now objected to the amount of costs claimed by the defendant. Held: Sir R Malins V-C said: "It is of great importance to litigants who are unsuccessful that they should not be oppressed by having to pay an excessive amount of costs." and "I think he ought to bear no more than the necessary costs. I adhere to the rule which has ready been laid down, that the costs chargeable under a taxation as between a party and party are all that are necessary to enable the adverse party to conduct the litigation, and no more. Any charges merely for conducting litigation more conveniently may be called luxuries and must be paid by the party incurring them. The plaintiff is the attacking party, and has failed, and he must therefore pay all charges necessary to the litigation. But if the Defendants give greater facilities for the conduct of the case than are strictly necessary, they ought not to be allowed to throw them upon the plaintiff."
1 Citers



 
 Baird v Moule's Patent Earth Closet Co Ltd; CA 3-Feb-1876 - Unreported, 3 February 1876

 
 Raeburn v Andrews; 1878 - [1874] LR 9 QB 118
 
Regina v Birmingham Union Guardians (1878) 44 LJMC 48
1878


Costs

1 Citers


 
Barker v Hemming (1880) 5 QBD 609
1880


Costs

1 Citers


 
Pitts v La Fontaine [1880] UKPC 49
20 Nov 1880
PC

Costs
(Constantinople)
[ Bailii ]

 
 Wilkinson v Corfield; 1881 - (1881) 6 PD 27
 
London Scottish Benefit Society v Chorley Crawford and Chester (1884) 13 QBD 872
1884


Legal Professions, Costs
A practising solicitor who represented himself in litigation was entitled to recover costs for his own time as if he had employed a solicitor.
1 Citers


 
Borneman v Wilson (1884) 28 Ch D 53
1884
CA
Bowen and Fry LJJ
Insolvency, Costs
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction and the appointment of a receiver. The Wilsons served a notice of appeal, but shortly afterwards a bankruptcy order was made against them. On 7 October 1884, a trustee in bankruptcy was appointed. On 18 October, the trustee was substituted as a defendant, apparently ex parte on the application of Borneman. On 31 October, he gave notice abandoning the appeal. He then entered an appearance in the substantive proceedings and called for a statement of claim. Borneman applied for an order against the trustee requiring him to pay the costs of the appeal which he had incurred before receipt of the notice of abandonment. Held: The order was made. notwithstanding the trustee's prompt and express abandonment of the appeal, by appearing and calling for a statement of claim in the Chancery proceedings he had adopted the action, and that meant the entire action including the appeal.
Bowen LJ said that the trustee: "cannot adopt part of the action and leave out the rest."
1 Citers


 
Farrer v Lacy, Hartland and Co (1885) 28 Ch D 482
1885

Bowen LJ
Costs, Litigation Practice
The court will seek not to allow the power to order security for costs to be used as an instrument of oppression, by stifling a genuine claim by an indigent company against a more prosperous company, particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff's impecuniosity.
1 Citers


 
In re Mills' Estate (1886) 34 Ch D 24
1886
CA

Costs
The Practice Rules conferred a discretion as to costs only in cases in which before the Judicature Acts the courts would have had jurisdiction to make awards of costs. The Act of 1890 was intended to confer such jurisdiction in any case whatever.
Supreme Court of Judicature Act 1890
1 Citers


 
In re Whiteley, Whiteley v Learoyd (1886) 33 ChD 347
1886
CA
Lindley LJ
Trusts, Costs
The trustees were charged with making unauthorized or improper investments, and the claim was that the trusts of the will relating to the sums invested should be carried into execution under the direction of the court and that the trustees might be ordered to invest the sums or so much thereof as were not properly invested upon the securities mentioned in the will. The imprudent investment of one sum of £3,000 was established, but as to another of £2,000 no want of prudence or of diligence was established. There was no order as to costs so far as the £3,000 was concerned, but as to the £2,000 the trustees were given their costs out of the trust estate or out of the £3,000, for which they were liable to account. The standard required of a trustee is to take reasonable care, being the care that an ordinary prudent person of business would apply to his own affairs, keeping in mind that moral obligations to others have been undertaken
1 Citers



 
 In re Bluck, Ex parte Bluck; 1887 - (1887) 57 LT 419
 
Andrews v Barnes (1888) 39 Ch D 133
1888

Fry LJ
Costs, Charity
The parish vicar and his churchwardens brought an action to recover a small sum paid to the members of a local committee for charitable purposes, saying the gift had been made subject to a condition which it proved impossible to fulfil. Held: The plaintiffs failed. The action was unjustified because of the need not to spend funds in this way, and they were ordered to pay the defendants' costs. The court related the practice as to costs in Chancery.
1 Cites

1 Citers


 
Blakey v Latham (1889) 41 Ch D 518
1889

Kay J
Litigation Practice, Costs
The court considered its power to award of set-off as between the costs in an action and the award of damages to the other party. "How can any solicitor possibly have an equity against B to make B pay costs which B is ordered to pay to A when B cannot recover from A the costs which A is ordered to pay B? How can any solicitor have an equity to make B pay instead of setting them off? If this matter were free from authority I should say it is the most extraordinary equity I have ever heard of."
1 Citers



 
 Walker v Wilsher; CA 1889 - (1889) 23 QBD 335
 
School Board for London v Wall Brothers (1891) 8 Morr 202
1891
CA
Lord Esher MR and Lopes and Kay LJJ
Costs, Insolvency

1 Cites

1 Citers



 
 In Re Beddoe, Downes v Cottam; CA 1893 - [1893] 1 Ch 547
 
Howard v Fanshawe [1895] 2 Ch 581
1895

McMullen J
Landlord and Tenant, Equity, Costs
In equity a proviso for re-entry in a lease is to be treated as a security for the payment of the rent.
A tenant applying for relief from forfeiture will normally be required to pay the lessor's costs of the forfeiture proceedings, save in so far as those costs have been increased by the lessor's opposition to the grant of relief, upon appropriate terms.
1 Citers


 
Mackenzie v Mackenzie [1895] UKHL 455; 32 SLR 455
16 May 1895
HL
Lord Chancellor Lord Watson Lord Ashbourne Lord Macnaghten Lord Morris
Family, Costs
Evidence on which, in an action of divorce for desertion brought by a husband, it was held (in aff. judgment of Second Division) that the wife had Proved S vitia On The Part of The Husband Such As Would Have Entitled Her To A Decree of Separation, and Therefore That The Husband Was Not Entitled To Decree of Divorce.
Opinion by Lord Watson, that section 11 of the Conjugal Rights Act of 1861, which provides "that it shall not be necessary, prior to any action for divorce, to institute against the defender any action of adherence," was not intended to alter the substance of the older statute law, but merely to simplify procedure, and that "reasonable cause" in the sense of the Act 1573, cap. 55, was simply such cause as would have afforded a good answer to an action for adherence.
Question, whether there might not be circumstances affording a sufficient defence to an action for adherence which yet would not establish the right to a decree of separation.
A husband having appealed unsuccessfully to the House of Lords against an interlocutor of the Court of Session assoilzieing his wife from the conclusions of an action of divorce for desertion which he had brought against her, the wife, although having separate estate, was allowed costs, to be taxed as between agent and client.
[ Bailii ]
 
Harbin v Masterman (1896) 1 Ch 351
1896
CA
Lindley, A L Smith and Rigby LJJ
Costs, Litigation Practice
Senior counsel for the unsuccessful appellant asked the Court to note that the five residuary legatees, respondents in the appeal, appeared by four different sets of counsel. He did not, expressly, ask for any particular costs order. Lindley LJ asked counsel for one of the respondents, "the question is at whose expense [do the different counsel for the respondents] appear”. He submitted in reply to the effect that, the appeal having failed, each was entitled to costs according to the ordinary rule. Held: Lindley LJ said: “In these cases there is always a discretion in the Court of Appeal as to the orders it ought to make with reference to the question of costs; and the Court is bound to see that its orders are not necessarily oppressive. It appears to me that in this case there really was no sensible reason for all parties appearing by separate solicitors . . I think it would be oppressive to allow more than one set of costs."
The court used its own inherent power to order enquiries to be made by the Official Solicitor to assist the court to ensure that justice is done between the parties. He is appointed to act where, if this were not done, there would be a denial or miscarriage of justice.
AL Smith LJ stated "We have an officer of this Court who is called the Official Solicitor. In my judgment, that officer is appointed Official Solicitor to the Court in order that a Judge when he sees before him certain matters which he wants investigated, and as regards the absolute accuracy of which counsel is not instructed, and has no knowledge whatever, may communicate with that official in order that the Judge may be informed as to where the real truth of the case lies."
Rigby LJ said that the Official Solicitor may: "be appointed to act where, if this were not done there would be either a denial or miscarriage of justice."
1 Citers



 
 In re British Gold Fields of West Africa; 1899 - [1899] 2 Ch 7
 
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