Sanderson v Blyth Theatre Co.pdf

Sanderson v Blyth Theatre Co.pdf - 2 K B KINGS BENCH...

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Unformatted text preview: 2 K. B. KING’S BENCH DIVISION. [IN THE COURT OF APPEAL.] SANDERSON o. BLYTH THEATRE COMPANY. Practice—Casts—Jurisdiction—Alternati'ue Defendants—Supreme Court of Judicature Act, 1890 (53 etc 54 Wet. c. 44), s. 5—Rules of the Supreme Court, Order Lina, Ir. 1. ' In an action in the King’s Bench Division, claiming relief against the defendants in the alternative, the Court has jurisdiction in a proper case to order the unsuccessful defendant to pay the costs of the successful defendant, or to order the plaintiff to pay the costs of the successful defendant and then to add those costs to the costs which the unsuccessful defendant is ordered to pay to the plaintiff. The latter course should be adopted when the action is tried with a jury and the judge does not think that there is “ good cause” for depriving the successful defendant of costs. Decision of Grantham J. affirmed. APPEAL from a decision of Grantham J. The action was brought originally against the Blyth Theatre Company alone, to recover a sumof 189l. 113. 6d. for work done and materials supplied in connection with the defendants’ theatre at Blyth. The statement of claim alleged that the work was done and the materials supplied at the request of the company by their agent, William Hope, the architect employed by the defendants in building the theatre. By their defence the company denied (amongst other things) that they or their agent requested the plaintiff to supply materials or do work as alleged in the statement of claim, and also set up other defences immaterial to be stated in detail. Thereupon the plaintiff took out a summons for leave to add Hope as a defendant to the action, and an order was made, dated January 29, 1902, giving the plaintiff liberty to amend the writ by adding the name of Hope as a defendant to the action, and to amend the statement of claim by claiming in the alter— native against Hope the same sum as that claimed against the ‘ company, and in further alternative claiming the same sum against Hope by way of damages for breach of warranty of authority to order the work and materials, and the question of Von. II. 1903. 2 0 2 533 C. A. 1903 June 22, 23; July 30. 534 C. A. 1903 SANDEBSON v. BLYTH THEATRE COMPANY. KING’S BENCH DIVISION. [1903] costs of and incident to the application was reserved. The writ and statement of claim were amended accordingly. The company put in an amended defence, alleging that Hope had no authority to employ the plaintiff. Hope, by his defence, denied that he was the agent of the company, and set up other defences identical with those set up by the company. At the trial the jury found a verdict for the plaintiff against the company; and thereupon the judge ordered that judgment be entered for the plaintiff against the company and for the defendant Hope, and also ordered that the defendant Hope should recdver'against the plaintiff costs, to be ascertained, and that the plaintifl should recover costs against the defendant company, to be taxed, and also the plaintiff’s taxed costs occasioned by joining the defendant Hope, including the costs which the plaintiff was adjudged to pay to the defendant Hope. The learned judge gave leave to the company to appeal from so much of the judgment as directed them to pay to the plaintiff the costs incurred by joining the defendant Hope, including the costs which the plaintiff was ordered to pay to the defendant Hope. An appeal was accordingly brought by the company, but to it the defendant Hope was not a party. The notice of appeal asked that the order of Grantham J. might be set aside, on the ground (1.) that there was no juris- diction to make the order; (2.) that there was no contract between the company and the plaintiff for any breach of which the liability to pay the costs would arise ; (3.) that the liability of the plaintiff to pay the costs did not arise in consequence of nor was the natural result of any breach by the company of any contract between the plaintiff and the company. Ma-n'o'sty, K.C’., and E. Shortt, for the theatre company. It is submitted that the learned judge had no jurisdiction to order the company to pay to the plaintiff the costs which he had to pay to Hope. . [ROMER LJ. Such an order is constantly made in the Chancery Division] But it has never before been made on the common law side. The learned judge considered he could make the order under the 2 K. B. KING’S BENCH DIVISION. l Rules of the Supreme Court, Order va., r. 1—which provides that “ where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court, shall, for good cause, otherwise order ”—on the ground that the company had failed as between themselves and Hope. [ROMER L.J. The practice of the old Court of Chancery was not directly to make an order for costs between co-defend- ants, but to order the plaintiff to pay the one defendant’s costs and to add them to his own against the other defendant; that is, to have them over against the other defendant. But since the Judicature Act it has been the habit of the Court to order the one defendant to pay costs to the other direct: Rudow v. Great Britain Mutual Life Assurance Society. (1)] Here the verdict was for the plaintiff against the theatre company only, and therefore the company were liable to pay ' the plaintiff his costs asvagainst them: Child v. Stemzing (2); Williams v. Burrcll (3); but it is submitted that the learned ' judge was wrong in holding that those cases applied as regards Hope’s costs. The plaintiff’s right of action as against Hope was an independent right as against an agent who had exceeded his authority : Collen v. Wright. (4) Having failed in this independent cause of action as against Hope, the plaintiff is liable for Hope’s costs, and can only pass on that liability to the theatre company under some supposed contractual liability by way of indemnity. [VAUGHAN WILLIAMS L.J. referred to Hammond v. Bussey (5), where a representation was made by contract as to the quality of coal sold by the defendants to the plaintiffs, and the plaintiffs sold the coal to purchasers; the plaintiffs, in an action for breach of contract, recovered as “ damages ” the costs incurred by them in another action brought against them by the purchasers of the coal from them.] That was a case'of representation'by the contract, just as in Collen v. Wright. (6) (1) (1881) 17 Ch. D. 600. (4) (1857) 8 E. a B. 647, 657—8. (2) (1879) 11 Ch. D. 82, 86. (5) (1887) 20 Q. B. D. 79. (3) (1845) 1 C. B. 402. (6) s E. a B. 647. 202 2, 535 C. A. 1903 SANDERSON v. BLYTH THEATRE COMPANY. 536 C. A. 1903 SANDERSON 12. BLY’I‘H THEATRE COMPANY. KING’S BENCH DIVISION. [1903] [STIRLING L.J. Order LXV., r. 1, says that, subject to the provisions of the Judicature Acts and the rules, costs “ shall be in the discretion of the Court or judge.”] Sect. 5 of the Judicature Act, 1890, also gives the Court a Wide discretion; but the rule must be taken to refer to costs incurred by the plaintiff or defendant, as the case may be. Here Hope’s costs are not costs “incurred ” by the plaintiff in prosecuting his independent claim against the theatre company, but only costs which he has been “ordered” to pay. The plaintiff applied to join another defendant, merely as a second string to his bow, and not for the purpose of prosecuting his claim against the theatre company. [VAUGHAN WILLIAMS L.J. Could not the plaintiff join Hope as a defendant under Order XVI., r. 4, and was he not therefore a proper party ?] Complete justice could have been done if the theatre company had been the only defendants. [ROMER L J. In Bennetts of Co. v. McIlwraz'th c6 00. (1), where an action was brought in the first instance against agents, the plaintiffs were allowed to add the principals as defendants] That was because the cause of action arose out of the same transaction. If a plaintiff adds another defendant in order to assist himself, he does so at his own risk as to costs. Here the plaintiff, for his own convenience, chose to join Hope as a defendant. In Admiralty cases, where the real issue is between two defendants, the unsuccessful defendant is ordered to pay the costs of the other: Green v. Goodyear (2); but that rule does not apply here. This action really comprises two separate proceedings—amt one proceeding—against separate defendants. Costs can only be ordered as between the parties between whom the issue lies, as in the case of permitting inspection under Order L., r. 3: Shaw v. Smith. (3) No doubt the power conferred by s. 5 of “the Act of 1890 is very wide, as is shewn by In re Fisher (4), but it is expressly (1) [1896] 2 Q. B. 464. (3) (1886) 18 Q. B. D. 193. (2) (1884) Note to TheRiverLagan, (4) [1894] 1 Ch. 450. (1888) 6 Asp. M. L. C. (N.S.) 281. 2 K. B. KING’S BENCH DIVISION. subject to the rules of Court. There must be some limitation of this wide power. The words are wide enough to empower the Court to order a witness to pay costs, but it is clear the Court would not do that. Hope was added as a party for the convenience of the plaintiff, and an additional burden should not be imposed on the theatre company. The Court will not add a defendant when to do so would injure the plaintiff : McCheane v. Gyles (No. 2). (1) It is submitted that there is no juris« diction under the circumstances of the present case to order the company to pay the costs of Hope. The principle of Shaw v'. Smith (2) and Brown v. Watkms (3) applies. When there is no issue between parties the Court has no jurisdiction. Scott Fox, K.C., and H. Drysdale Woodcock, for the plaintiff. The notice of appeal is only on the ground that there was no jurisdiction under the circumstances to make the order ; nothing is said in it about a wrong exercise of the judge’s. discretion.- It is submitted that the Court has jurisdiction, if it thinks fit, to order the costs of any party to an action to be paid by any other party, except when the action is tried by a jury. Of course, the rule does not apply to a witness. The costs which the plaintifi had to pay to Hope were really incurred at the instance of the company, because they denied his~agency, and. they ought to pay those costs. The only real question is that of jurisdiction, and Child v. Stenm'ng (4) shews that there was jurisdiction. [VAUGHAN WILLIAMS LJ. referred to Gotten-ell v. Jones. (5)] Though the causes of action against the two defendants were difierent, they were combined in one action to save expense. This was the proper course to adopt: Honduras Inter-Oceanic By. 00. v. Tucker (6); Massey v. Haynes (7); Bennetts ct 00. v. McIlwmz'th at 0'0. (8) The old practice in Chancery was well settled that a defendant might be ordered to pay to the plaintiff the costs of a co-defendant which the plaintiff had been ordered to pay in the first instance: Pa-rkes v. (1) [1902] 1 Ch. 911. (5) (1851) 11 C. B. 713., (2) 18 Q. B. D. 193. (6) (1877) 2 Ex. D. 301.‘ (3) (1885) 16 Q. B. D. 125. (7) (1888) 21 Q. B. D. 830. (4) 11 Ch. D. 82. (8) [189612 Q. B. 464. 537, C. A. . 1903 SANDERSON ’U. BLYTH THEATRE COMPANY. 538 C. A. 1903 SANDERSON 1}. Burn THEATRE COMPANY. KING’S BENCH DIVISION. [1903] White (1); Jones v. Lewis. (2) But now the Court can order a defendant directly to pay the costs of a co-defendant: Radow v. Great Britain Mutual Life Assurance Society (3); Daniell’s Chancery Practice, 7th ed. p. 980. Or the defendant Hope might have been deprived of costs for “ good cause ” : Bostock v. Ramsey Urban District Council. (4) Hope was properly made a party, and the company did not appeal from the order which authorized his being added. The suit was properly constituted, and then the Court had jurisdiction to say how the costs were to be borne. _ . Man/isty, K.C’., in reply. The action having been tried by a jury, the judge, under Order LXV., r. 1, had no discretion as to the costs. The costs must follow the event, unless for good cause the judge thought fit to deprive the defendant Hope of costs. This the judge might have done, but he did not. These costs were not incurred by the plaintiff in the action. Cm. adv. cult. July 80. VAUGHAN WILLIAMS L.J. The judgments which are about to be delivered by my learned brothers will express the judgment of the Court. I will add a few observations. presently. I BOMER LJ. read the following judgment :—-This action, seeking relief in the alternative against the two defendants, Was rightly brought under Order XVI., r. 4: see Honduras Inter-Oceanic By. 00. v. Tucker (5) and Bemzctts dé Co. v. McIlwrat'th ct Co. (6) The rule is a beneficial one, and a plaintiff who rightly brings such an action as the present ought not to be mulcted in costs by reason of his taking advantage of the rule in a proper case. Under the Judicature Act, 1890, s. 5, and Order LXV., r. 1, the Court has full power over the costs of all parties of such an action; and, in my opinion, it has jurisdiction to order the plaintiff to pay the costs of the defendant against whom the action fails, and to add those (1)/(1805) 11 Ves. 209. ' (4) [190012 Q. B. 616. (2) (1786) 1 Cox, 199. (5) 2 Ex. D. 301. (3) 17 Ch. D. 600. (6) [1896] 2 Q. 13. 464. 2 K. B. KING’S BENCH DIVISION. costs to his own to be paid by the defendant against whom the action has succeeded, and whose conduct has necessitated the action. This jurisdiction has been frequently exercised in Chancery in proper cases, and can, of course, be exercised in the King’s Bench Division. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant. See, by way of illustra- tion, Child v. Stenm‘ng (1), where it will be seen, on looking into the facts of that case, that J essel MB. (2) made exactly such an order as I have been indicating. The modern practice, in order to avoid circuity, has been in such cases, where there has been no jury, to order the unsuccessful defendant to pay directly to the successful defendant his costs: see Rudow v. Great Britain Mutual Life Assurance Society. (3) But of course a judge has jurisdiction to follow the old practice if he thinks fit to do so, and ought to do so when necessary, as, for example, when, having regard to Order LXV., r. l, difficulties would otherwise arise by reason of the trial being with a jury. I think, therefore, that in the present case Grantham J. had jurisdiction to make the order he did. Of course, in exercising the jurisdiction, a judge should have regard to the circumstances of the case, and be satisfied that it is just that the unsuccessful defendant should, either directly or indirectly, have to pay the costsiof the successful defendant. In the present case I do not think that I myself should have given to the defendant Hope, having regard to his defences and conduct, any costs whatever, either as against the plaintiff or co-defendant. But I do not think it is open to the appellant on this appeal to go into the question whether the defendant Hope should have been paid his costs, for the following reasons. No doubt at the trial the plaintiff did not question Hope’s right to costs. But the question as to costs was adjourned. At the adjourn- ‘ment Hope was not present, but the appellant company were (1) 11 Ch. D. 82. ' (2) 11 Ch. D. at p. 87. (3) 17 Ch. D. 600, 607, 608. 539 C. A. 1903 SANDnBsox v. BLYTH THEATRE COMPANY. Romcr LJ. I 540 C. A. 1903 SANDERSON 1). BLYTH THEATRE COMPANY. Rainer L.J. KING’S BENCH DIVISION. [1903] present. If the company had taken the 'point that Hope ought not to have had his costs, Hope could have been brought before the Court again and the matter fully argued and decided. But the company did not raise the point, and I think they and the plaintiff must be taken to have agreed that there was no “ good cause” shewn for depriving Hope of costs under Order LXV., r. 1. The only point argued by the company was that the Court had no jurisdiction to add Hope’s costs to the plaintiff’s, and in that way to order the company to pay them; and I think it is too late now for the company to argue that the defendant Hope never ought to have had his costs provided for as they have been. I think, moreover, that the leave to appeal was given on the question of jurisdiction only, and this view is borne out by the notice. of appeal, and by the fact that the defendant Hope is not before this Court. And, lastly, with regard to the suggestion that the costs of Hope have been made to include costs of the issues on which he failed, I need only say that the taxation of those costs was in the presence of the company, and that it is too late now to question the amount taxed. STIRLING L.J. read a judgment, in which, after stating the facts as above, he continued :——The first and most important question to be considered is whether the learned judge had- jurisdiction to make the order appealed from. Order LXV., r. 1, so far as material, is as follows: “ Subject to the provisions of the Acts and these rules, the costs of and incident to all proceedings in the Supreme Court . . . . shall be in the discretion of the Court or judge . . . . provided . . . . that, where any action . . . . is tried with a jury, the costs shall follow theevent, unless the judge by Whom such action . .is tried, or the Court, shall, for good cause, otherwise order." The Judicature Act of 1890, s. 5, provides as follows: “Subject to the Supreme Court of Judicature Acts, and the rules of Court made thereunder, . . . . the costs of and incident to all proceedings in the Supreme Court . . . . shall be in the discretion of the Court or judge, and the Court or judge shall 2 K. B. KING’S BENCH DIVISION. have full power to determine by whom and to what extent such costs are to be paid.” 541 C. A. 1903 If the action had been tried by a judge without a jury the SANDERSON costs would have been entirely in the discretion of the judge, and he would have had power in the exercise ofhis discretion to order the defendant company first to pay to the plaintiff the costs occasioned to him by joining Hope as a defendant, and, secondly, to pay to the defendant Hope his costs of the action. Inasmuch as the action was tried by a jury, the costs of the defendant Hope had to follow the event, and the plaintiff, having failed as against Hope, was bound to pay his ,costs, unless the judge for good cause otherwise ordered. As the learned judge did not otherwise order, it must be taken, for the purpose of dealing with the question of jurisdiction, that good cause did not exist. It must also be taken that the learned judge was of opinion that, as between Hope and the defendant company, the costs of the former ought to be borne by the latter, and the question is whether he had jurisdiction to give effect to this opinion by making the order which he did make. The defendant Hope was madeva defendant under the powers conferred by Order XVI., rr. 7 and 11. The former rule provides that, “ where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may . . . . join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what ~ extent, may be determined as between all parties. Previously to the Judicature Act, 1873, there was no power to join two persons as defendants in this way, either at law or in equity, but under the present rules it has been held that an action in such a form as the present is one capable of being maintained, and that any defendant to such an action is a proper party to it: see Honduras Inter-Oceanic By. 00. v. Tucker (1); Massey v. Haynes. (2) Questions, however, of a similar kind to- that now under consideration arose and had to be dealt with by the Court of Chancery prior to the Judi...
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