290 / 324
present case as inviolate, as I am asked to do, I
think I should be setting an unfortunate precedent
because there are no special facts about the present
case to justify such special treatment.
Having said that I hope I may still say that I am
very sorry for this particular plaintiff. Through not
accepting the £1,000, he gets £760 less costs which
will substantially diminish the award ; but I can see
no ground on which I can give him relief. If the
defendants feel it right not to enforce the order
regarding costs, or to make some concession re
garding that, that of course is a matter entirely for
them.
My order must be that the plaintiff have the costs
of the action up to the date of payment in, and the
defendants have the costs thereafter and that any
excess of the latter costs over the former be paid
to the defendants out of the £1,000 in court; the
balance to be paid out to the plaintiff.
(Graham
v. C.
E. Heinke & Co. Ltd.—(1958)
i All. E.R. 365.)
An order that two actions lie listed and tried, together
does not convert those two actions into one set of
proceedings ;
the Court therefore has no jurisdiction
to order a party to only one of the two actions to
pay costs incurred by the other party in proceedings
to which that person was not a party.
Rules of the Supreme Court, Order 65, rule i,
which provides that " the costs of and incident to
all proceedings in the Supreme Court .
.
. shall be
in the discretion of the Court" gives the court a
discretion to order the costs of and incident to all
proceedings to be paid by the parties to those pro
ceedings, or any of them as the court in its discretion
thinks right, but does not empower the court to
order a person to pay costs incurred by another
party in proceedings to which that person was not
a party.
An Australian mercantile company, (" W. Ltd.")
procured an English company (" E. Ltd."), carrying
on business in Australia as advertising practitioners,
to go into voluntary liquidation at a
time when
the newspaper proprietors (" F. Ltd.") had not
been paid for the advertisements.
E. Ltd. com
menced an action against W. Ltd. alleging, inter
alia, that E. Ltd. acted as principal and not as
agent in executing the advertising, and claiming
the sums agreed to be paid by W. Ltd. for the
advertisements.
By consent proceedings were
agreed to be brought in England on behalf of re
presentative claimants of the newspaper proprietors
against W. Ltd., and the existing action by E. Ltd.
against W. Ltd. and the new action were to be
ordered to be listed and tried together. The news
paper proprietors (" F. Ltd.") accordingly com
menced an action against W. Ltd., claiming that
E. Ltd. had ordered the advertisements as agents
for W. Ltd., and that W. Ltd. was therefore liable
to F. Ltd. for the price of the advertisements. The
two actions were ordered to be listed and tried
together.
At the trial judgment was given for
E. Ltd. against W. Ltd. in the action between them,
and for W. Ltd. in the action brought by F. Ltd.,
the court holding in each action that E. Ltd. had
acted as principals and not as agents for W. Ltd.
W. Ltd. thereupon applied in the action brought
by F. Ltd. for the costs of the action brought by
E. Ltd. to be paid by F. Ltd. On appeal by W. Ltd.
against the determination of the trial judge that he
had no jurisdiction to make such an order.
Held by the Court of Appeal (Jenkins, Parker
and Pearce, LJJ., affirming Gorman J.) that the
order that the two actions be listed and tried to-,
gether did not convert the two actions into one set
of proceedings, and so did not make F. Ltd. a party
to the action by E. Ltd., and the court therefore had
no jurisdiction to order F. Ltd. to pay the costs
of that action.
Appeal dismissed.
Per Jenkins, L.J.—In the present case, as has
appeared from what I have already said, there was
no consolidation. The difficulties in the way of
consolidation were obvious in that the two actions
were actions in which the interests of the respective
plaintiffs were diametrically opposed. However,
assuming that, in theory, consolidation would have
been practicable, there was none. These two actions,
still bearing their original character as separate and
distinct actions, were, for convenience, listed and
heard together ; but that does not make them any
thing else than two actions, and I think that the
learned judge's discretion as to the costs of either
action must be confined to the parties to that action.
For the reasons which I have endeavoured to express,
I think that the learned judge came to a right
conclusion in holding he had no jurisdiction to make
the order sought.
Per Parker, L.J.—I agree. Under the Rules of
the Supreme Court, Order 65, rule i : " .
.
. the costs
of and incident to all proceedings in the Supreme
Court .
.
. shall be in the discretion of the court or
judge ..." " Proceedings " there must mean pro
ceedings properly brought before the court in the
prescribed manner (see Order i, rules i and 2). It
is also clear that A cannot be ordered to pay the
costs of B incurred in proceedings to which A was
not a party. I am satisfied that the order does not
have the effect of turning separate proceedings into
one set of proceedings. Nothing short of consolida
tion can do that under the existing rules, and in
this case not only was there-no order for consolida-