Links: Home | swarblaw - law discussions

swarb.co.uk - law index


These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Costs - From: 1930 To: 1959

This page lists 23 cases, and was prepared on 20 May 2019.

 
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
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.''
1 Citers


 
Kevorkian v Burney (No 2) [1937] 4 All ER 468
1937
CA
Greer LJ
Costs, Litigation Practice
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will remain here; and, thirdly, for the defendant to show, if he can, that the asset is worthless or not worth sufficient to cover the costs.
1 Citers


 
Myers v Rothfield [1939] 1 KB 109; [1938] 3 All ER 498
1938
CA
Greer and Slesser LJJ, MacKinnon LJ
Legal Professions, Costs
The solicitor had left the conduct of proceedings largely to his managing clerk. The trial judge held that the solicitor had not been guilty of professional misconduct in allowing the defences to be delivered, but that he had been guilty of such misconduct in allowing the inadequate affidavits of documents to be made. He ordered the solicitor to pay one-third of the plaintiff's costs of the action and two-thirds of the costs of the application. Held: (MacKinnon LJ dissenting) Assuming that the acts in question, if done by a solicitor personally, would constitute professional misconduct on his part, the solicitor was not liable as he had appointed a fully qualified clerk to prepare the defences and affidavits of documents, and the acts had been done not by the solicitor himself but by the clerk.
1 Citers


 
Egerton v Jones [1939] 2 KB 702
1939
CA
Sir Wilfred Greene MR, Mackinnon and Finlay LJJ
Landlord and Tenant, Costs
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
1 Citers


 
Myers v Elman [1940] AC 282; [1939] 4 All ER 484; (1939) 56 TLR 177; (1939) 162 LT 113; (1939) 109 LJKB 105
1939
HL
Viscount Maugham, Lord Wright and Lord Porter
Legal Professions, Costs
The solicitor had successfully appealed against an order for a contribution to the other party's legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor's appeal had been successful. Held: The Court of Appeal's decision was reversed. The plaintiff was not asking the court to exercise its disciplinary jurisdiction over officers of the court but, rather, its jurisdiction to order a legal practitioner to pay costs by reason of some misconduct, default or negligence in the course of proceedings, a jurisdiction which could be exercised where the solicitor was merely negligent, so that the solicitor could not "shelter himself behind a clerk, for whose actions within the scope of his authority he is liable"
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."
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 C.B. in Stephens v. Hill. (1) 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."
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 "
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."
1 Cites

1 Citers



 
 Barnard v Gorman; HL 1941 - [1941] AC 378
 
In re Taxation of Costs In re Solicitors [1943] KB 69
1943


Costs, Legal Professions

1 Citers


 
Regina v Willesden Justices ex parte Utley [1948] 1 KB 397
1948

Lord Goddard CJ
Magistrates, Costs
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."
1 Citers


 
Rex v Coventry Rent Tribunal Unreported, 1 December 1948
1 Dec 1948

Lord Goddard
Costs
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.
1 Citers



 
 Rex v Kingston-upon-Hull Rent Tribunal ex parte Black; 1949 - [1949] 1 All ER 260
 
In re A Debtor [1951] Ch 162
1951


Costs

1 Citers


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


Costs

1 Citers



 
 Korner v Korner and Co; CA 1951 - [1951] 1 Ch 10
 
Factors (Sundries) Ltd v Miller [1952] 2 All ER 630
1952
CA
Somervell LJ
Landlord and Tenant, Costs
The tenant seeking and being granted forfeiture was legally aided and the court was precluded by statute from making an order for costs against him. Held: There was nonetheless jurisdiction to require him to pay the landlord's costs as a condition of being granted relief from forfeiture. A In a case where relief against forfeiture is granted, where appropriate it may be ordered that the tenant pay the landlord's costs, even on a solicitor/client basis as a condition of relief.
Somervell LJ explained that the liability under such a condition was "not an order to pay costs in the ordinary sense", but "a payment of a sum equal to the costs as a condition of relief".
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
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..."
1 Citers



 
 Regina v Paddington South Rent Tribunal ex parte Millard; 1955 - [1955] 1 All ER 691
 
In re a Solicitor (Taxation of Costs) [1955] 2 QB 252
1955
CA
Denning, Parker LJJ
Legal Professions, Costs
Matrimonial proceedings were in contemplation but the instructions to solicitors were terminated before a petition for judicial separation was filed. The client complained as to the costs bill submitted by the solicitors.
Denning LJ disposed of the submission that the line should be drawn between contentious and non-contentious business according to the date of the issue of the writ in the following way: "Let me test the position by taking a case where a client asks his solicitor to bring an action. The solicitor thereupon instructs counsel to draft the writ and the statement of claim to be served with it. If the action goes for trial, the costs of that work are recoverable as costs in the action. They are not disallowed simply because the work was done before the writ was issued. It is clearly contentious business. Now suppose that in that very case the solicitor had to take statements from witnesses so as to enable counsel to settle the statement of claim. If the action goes for trial, the cost of that work would also be recoverable as costs in the action . . It would also be contentious business.
Now suppose that after the solicitor had done all that work, but before the writ was actually issued, the case was settled by the defendant paying the claim. Does the work take on a different character simply because the case was settled? Surely not. If it is contentious business when the case goes for trial, it is also contentious business when the case is settled before the writ is issued. The issue of the writ does not alter the nature of the business; nor should it alter the method or amount of the solicitor's charges. He should get the same reward for the same work, no matter whether the case goes for trial or is settled the moment before the writ issued or the moment after it."
He said of what was required to be contained in a bill of costs for non-contentious business as follows: "[I]t must contain a summarized statement of the work done, sufficient to tell the client what it is for which he is asked to pay. A bare account for "professional services" between certain dates, or for "work done in connection with your matrimonial affairs" would not do. The nature of the work must be stated, such as, advising on such and such a matter, instructing counsel to do so and so, drafting such and such a document, and so forth."
Solicitors' Remuneration Order 1929
1 Citers


 
Polak v Marchioness of Winchester [1956] 1 WLR 818
1956
CA
Jenkins LJ
Legal Professions, Costs
The paying party objected that 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
1 Citers


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


Costs

1 Citers


 
London County Council v Monks [1959] 1 Ch 239; [1958] 3 All ER 6
1958

Danckwerts J
Costs
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."
1 Citers


 
Fairfax (John) and Sons v E C de Witt and Co [1958] 1 QB 323
1958
CA

Costs

1 Citers


 
Re Cutliffe's Estate [1959] P 6
1959
CA
Morris LJ, Hodson LJ
Wills and Probate, Costs
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."
1 Cites

1 Citers


 
Copyright 2014 David Swarbrick, 10 Halifax Road, Brighouse, West Yorkshire HD6 2AG.