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102
The Gazette of the Incorporated Law Society of Ireland.
[APRIL, 1910
Judgment was given for the plaintiff for
£450 against the omnibus company. Judg
ment was given for the tramway company
against the plaintiff. The question whether
the unsuccessful defendants should be
ordered to pay to the plaintiff the costs
payable by the plaintiff to the successful
defendants was reserved.
Mr. Justice Pickford subsequently made an
order that the plaintiff's costs recovered
against the unsuccessful defendants should
include the costs he might have to pay to
the successful defendants.
(Reported
The Times Law Reports,
Vol.
xxvi., page 315.)
COURT OF APPEAL (ENGLAND).
(Before Cozens-Hardy, M.R., Fletcher
Moulton and Buckley,
L.JJ.)
Gundry v. Sainsbury.
Feb.
25, 1910.—
Solicitor—Costs—Oral agree
ment by client to pay no costs of action to
Solicitor—Right of client to recover costs
from unsuccessful parly—Solicitors Act,
1870 (33
and
34
Vie., c.
28), ss. 4, 5.
In an action to recover damages in respect
of injuries caused by the defendant's dog,
the plaintiff, in cross-examination, stated that
he could not afford to pay the costs of the
action, and that he had verbally arranged
with his solicitor not to pay any costs. The
jury found a verdict for
£15
in favour of the
plaintiff. In those circumstances the County
Court Judge held that the plaintiff was not
entitled to recover any costs from the
defendant.
Held,
that as party and party costs are
only given as an indemnity, and as the
plaintiff, by virtue of the agreement, was not
liable to pay any costs to his solicitor, he
was not entitled to recover costs from the
defendant; and
semble
that the effect of the
arrangement between the plaintiff and his
solicitor, although verbal, was to bring into
operation the proviso to S. 5 of the Solicitors
Act, 1870, and to preclude the plaintiff from
recovering any costs from the defendant.
Decision of the Divisional Court (see
GAZETTE of December, 1909, page 61)
affirmed.
The Master of the Rolls said that the appeal
raised a curious and important point, The
plaintiff claimed damages in the County
Court for an injury resulting from the bite
of a dog. The action was fought, and the
plaintiff recovered £15 damages, and the
learned County Court Judge ordered judg
ment to be signed for that amount, but did
not give any costs of the action as against
the defendant. There were two passages in
the judgment of the learned County Court
Judge which stated clearly his reasons for
that course :—" The question in this case
was whether the successful plaintiff was
entitled to the costs of the action, he having
stated in his cross-examination that he had
verbally agreed with his solicitor that he
(the plaintiff) should not pay him any
costs ; " and a little further on, " In this
case the agreement between client and
solicitor was that the client should pay the
solicitor nothing in respect of costs." It
was impossible to find better evidence of that
agreement against the plaintiff than his own
statement. The learned County Court
Judge, having had that statement made in
the box on cross-examination by the plaintiff,
had reserved the question of costs till a
subsequent day. No application was made
on that hearing to admit further evidence,
and it was not till the last moment that he
was asked to admit further evidence. The
learned County Court Judge refused to admit
further evidence in the exercise of his
discretion. It was impossible for the Court
to interfere with that discretion, and his
Lordship had not the slightest doubt on the
facts that the learned County Court Judge
was amply justified in the conclusion at
which he had arrived that there was an
agreement between the plaintiff and his
solicitor that the plaintiff should pay nothing
in respect of costs. That gave rise to the
question :
What was the position of the
defendant in the action in consequence ?
In his Lordship's opinion the point made by
Counsel for the defendant on the Common
Law was a good point and sufficient to
dispose of the case. Party and party costs
were only given as an indemnity, and in the
character of an indemnity. He would read
one passage from the judgment of Baron
Bramwell in
Harold
v.
Smith
(5 H. and N.,
381, at p. 385) :—"Costs as between party
and party are given by the law as an
indemnity to the person entitled to them ;