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included in the words " preliminary taxation ". The
summons then asks " that it may be referred back
to the taxing master to vary his certificate accord
ingly ". I really do not know whit that was intended
to mean because, if I had to deal with this question
—which I probably should have done if a sufficient
number of the parties had appeared before me to
argue it—I should have made some sort of de
claration of principle, but I should not have needed
to vary the certificate, for the simple reason that the
taxing master has not certified anything which is
material to anybody, so far as I can see, except that
he says there is a question of principle. That is not
a decision on a question of principle. It is true that
the taxing master said that he disallowed the ob
jection, but he has to go further than disallow the
objection. He has to make a certificate which gives
effect to the disallowance, and that he has never
done. I would have given both sides. In my view,
the summons in its present form is impossible for
the reasons which I have stated. I propose to dismiss
the summons with no order as to costs.
(Re
Fraser deceased—Leach
v.
Public Trustee—
(1958) i All. E.R. 26.)
Costs where lodgment in court not beaten, although not
apportioned among several causes of action pleaded.
The requirement of R.S.C., Ord. 22, r. i (2), that
a notice of payment
into court
in satisfaction
of several causes of action should specify what sum
is paid in respect of each cause of action is directed
to cases where the several causes of action give rise
to independent claims for damages, not to cases
where satisfaction of one cause of action ends the
whole claim ;
they are only alternative in that one
award of damages is possible; so that satisfaction
of one cause of action ends the whole claim.
The plaintiff, an assisted person, brought an action
against his employers for damages for personal
injuries sustained by him when working at a machine
in the course of his employment. The claim was
based on alleged negligence and breach of statutory
duty. Before any defence was delivered the de-
tendants paid £1,000 into court, stating in their
notice of payment in that this sum was " enough to
satisfy the plaintiff's claim ". The notice did not
specify what sum was paid in respect of which cause
of action. At the trial the plaintiff succeeded on both
causes of action, and recovered one sum of £760
damages.
Held by Donovan J. that: The defendants were
entitled to their costs of the action after the date of
payment in because the two causes of action, viz.,
the alleged negligence and the breach of statutory
duty, did not give rise to independent claims for
damages but entitled the plaintiff to only one award.
The costs so awarded should come out of the
damages awarded. (Nolan
v.
C. & C. Marshall, Ltd.
(1954) i All. E.R. 328, followed.)
Per Donovan J. : " Consequent on my award of
£760 damages as compared with a payment into
court by the defendants of £1,000 tne defendants
ask that they shall have the costs of the action as
from the date of such payment in.
The application is resisted on behalf of the plain
tiff on the ground that the payment in must be re,-
garded as a nullity, since it did not comply with the
terms of R.S.C., Ord. 22. R.S.C./Ord. 22, r. i (i),
provides, missing out irrelevant words :
" In any action for a debt or damages .
.
. the
defendant may at any time after appearance
upon notice to the plaintiff pay into court a
sum of money in satisfaction of the claim or
(where several causes of action are joined in one
action) in satisfaction of one or more of the
causes of action ..."
The plaintiff did not take out this sum and the
action proceeded to trial with the result already
stated. It is now said for the plaintiff that the notice
should have specified the cause of action in respect
of which the payment was made, that is, either
breach of statutory duty or negligence at common
law, or partly the one and partly the other, and that
in the absence of such specification the payment in
must be disregarded, so as to entitle the plaintiff
to his full costs. Accordingly, to deprive such a
defendant of his costs for failure to make such a
specification would be wholly unjust, and I ought
to avoid such a result if some other construction
of R.S.C., Ord. 22, r. i (2) is reasonably possible.
I think that it clearly is.
It should be remembered that the writ in this case
was issued on Dec. 5, 1956, and the statement of
claim was delivered on the same day. The payment
in of .£1,000 was made on Dec. 28, 1956, before
any defence was delivered.
The plaintiff considered it was not enough.
Rightly or wrongly I have held that it was more
then enough.
So
the whole costs of the action
since Dec. 28, 1956, have been occasioned by the
plaintiff's view, now held to be wrong. In .these
circumstances I can see no ground for making the
defendants pay the expense of the proceedings after
payment in, or to deprive them of their own costs
of resisting such proceedings.
Where a litigant is assisted by public funds a
particular duty lies on him not to refuse a reasonable
offer, and certainly not to trade on his privileged
position in the matter of costs to decline to accept
a payment in which he might well accept if not so
privileged. I am not saying that this is such a case,
but if I were to treat the award of damages in the
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