11 / 114
MAY, 1910]
The Gazette of the Incorporated Law Society of Ireland.
Ill
alleged cause of action, and the whole of the
learned judge's decision that the defendants
ought to have judgment, but without costs
" and upon reading the said judgment.
It
is ordered that the said judgment be affirmed
and the appeal of the defendants be dis–
missed with costs, to be taxed by the taxing
master." That
is,
the defendants
failed
altogether to get the judgment of the learned
judge modified by striking out so much of it
as said the defendants were to have no costs,
and giving the defendants costs " and that
the cross-notice of the plaintiff be also dis–
missed with costs, to be taxed by the taxing
master." That is, the plaintiff's cross-notice,
in which he claims that he ought to have
judgment in the action, and, I suppose,
probably claimed it I have not got the
actual motion before me the judgment with
costs ;
I suppose it was dismissed, and the
costs taxed by the taxing master.
It seems
to me, as far as that is concerned, it is a
simple order under which there would be
two taxations in respect of these two separate
appeals. The order goes on :
" And it is
ordered that the taxing master do set off the
plaintiff's costs of the appeal and the defen–
dants' costs of the cross-notice when so
respectively taxed, and certify to which of
the parties the balance after such set off is
due, and that such balance be then paid by
the party to whom the same shall be certified
to be due."
It seems to me that that is a
very specific order, and I am told that that
order ought to be read in the light of a practice
in respect of claim and counter-claim which
was established by a judgment of Fry, J.,
as he then was, in
Saner
v.
BiUon
(L.R.,
11 C.D., 416), a practice which results in the
taxing master having to conduct his taxation
upon the basis of which of the two sides is
entitled to get the general costs.
I do not
myself think that the practice applies to the
present case, having regard to the present
order.
I think that it was intended by the
very terms of this order that there should be
really two taxations, and that then, when
these two taxations had been separately
arrived at, the amount of the one should be
set against the amount of the other, and that
the balance should be paid by the one to the
other in accordance with that result. There–
fore, it-seems to me that that order is not
really, and ought not really, to be affected
by this practice to which we have been
referred.
It may very well be that the order
that this court made was not in accordance
with the practice which was in force if there
was such a practice in respect of cross-
appeals.
I cannot say ;
but I frankly say
that at the time when I was a party to the
making of this order I was not aware that
there was any such practice which would
give to our order a different result from that
which would have come out if the words of
the order simply had been looked at, and the
taxation conducted accordingly.
It was
said, I think, both by Mr. Tindal Atkinson
and Mr. Norman Craig, that in arriving at
such a conclusion as I have just described,
the court would run the risk of telling the
taxing master to allow sums for costs which
had not in fact been incurred.
I quite agree
that if the result would be that which it is
feared it might be, the master on taxation
would probably say :
" This is an order
which it is impossible effectually to carry out,
because it is made upon the basis that there
really had been one set of costs for the
defendants' appeal and another set of costs
in respect of the plaintiff's appeal, and that
steps in these two appeals had been taken
which in fact had not been taken ;
then,
when I come to tax I cannot possibly allow
costs or fix an amount for costs in respect to
costs which have never really been incurred."
But I think, and I
think Hamilton, J.,
thought, as far as I can judge from what I
have heard and what took place, that there
is really no such real difficulty here.
It is
true that there was really only one brief on
each side in respect of these two appeals.
If you come to apportion the fees on those
briefs, then the deadlock will not arise which
has been suggested.
I asked the question,
and both sides are agreed that there would
not be the very slightest difficulty in appor–
tioning the sum given on the one brief partly
to one appeal and partly to the other appeal,
and if there is no difficulty in doing that
and I do not understand from the Master's
answers that there is any difficulty I see
no reason for interfering with the judgment
of Hamilton, J.
I
think,
therefore,
this
appeal fails, and ought to be dismissed with
costs.
Fletcher Moulton, L.J. I if am also of
opinion that the decision of Hamilton, J.,