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rent would be assessed by the court at a figure set
out in options contained in the old lease which had
expired. Nor did His Lordship know the length
of the new term which might be granted. There was
no material before His Lordship on which he could
assess damage.
In the result the plaintiffs were
entitled to nominal damages for breach of contract,
namely forty shillings. His Lordship was satisfied
that there was sufficient reason for bringing the
action in the High Court and accordingly the costs
were granted to the plaintiffs on the High Court
Scale.
(The Times,
May 28th, 1964).
Costs : Reprehensible Conduct of Successful Party.
In Jones
v.
McKie and Another, which was an
appeal from Liverpool Court of Passage, the facts
were as follows : The first defendant was the driver
of a motor lorry owned by the second defendants,
his employers, which was involved in a collision
with the plaintiff's stationary motor van.
The
evidence was that the first defendant had at the time
been driving the lorry to his home to fetch his key
which he had forgotten. In evidence, he said that he
always took the lorry home when he went home for
dinner in the ordinary way, that nobody had ever
told him differently, and that it was common practice
for other drivers employed by the second defendants
to take their vehicles home for this purpose. The
assistant presiding judge, Mr. G. J. Bean, Q.C.,
found that the first defendant had not been acting
in the course of his employment at the time of the
accident. He dismissed the plaintiff's case as against
the second defendants, but declined to make any
order for costs in their favour, saying that " this was
a result of allowing the drivers to go home on the
second defendants' transport. It seems to me to be
unworthy of them and contrary to the justice of the
matter if they permit a lax system of control of
transport and then seek costs against someone who
plainly is innocent." The second defendants appealed.
Willmer, L. J., with whom Harman, L. J., agreed,
said that counsel for the second defendants had said,
first, that the matter relied on by ;.he judge as a ground
for the exercise of his discretion must really be con–
nected with the litigation and not something which
might incidentally have arisen in the course of it;
secondly, that it must be something which in some
sense amounted to reprehensible behaviour on their
part; and thirdly, that it must be something which
they had had a fair opportunity of dealing with at
the trial. His Lordship was not disposed to quarrel
with those submissions but, even accepting counsel's
first submission, he found it impossible to say that
what had been relied on by the judge had not been
connected with the litigation as defined by him.
It had, after all, been the second defendants' lorry
which they had allowed, or at any rate not forbidden,
the first defendant to use and which had been the
instrument of the damage. The judge had taken the
view that that was reprehensible conduct on the
second defendants' part. Although his Lordship
might well have exercised his discretion differently,
he felt unable to say that the judge had not exercised
his discretion judicially.
Russell, L. J., dissenting, said that in his view the
practice of the second defendants in allowing their
vehicles to be used in this way was neither relevant
to the question of costs nor open to criticism. The
position would have been the same if they had
expressly permitted the first defendant to use the
lorry for his own purposes. Appeal dismissed.
(The Solicitors' Journal., Vol. 108, page 442).
Counsels' Fees.
The plaintiffs took out an originating summons in
the Chancery Division in connection with
the
administration of an estate of which they were the
executors.
The summons, to which one of the
respondents was an infant, was opposed, and at the
hearing the plaintiffs were represented by leading
counsel. The hearing was subsequently adjourned by
Cross J. into chambers. Later, it was adjourned in
the hope that a compromise might be reached. A
compromise was in fact arrived at and was sanctioned
by Cross J. in open court on behalf of the infant
respondent. The order did not say that the matter
had been a chambers matter, and although it pro–
vided,
inter alia,
that the plaintiffs' costs should be
taxed and paid out of the residuary estate of the
testator, it made no express provision for the fees of
leading counsel who had been instructed on their
behalf. The taxing master, referring to Appendix 2,
Part X, para. 2 (3), of the Supreme Court Costs
Rules, 1959, took the view that the matter had been
a chambers matter and that, as the order did not
contain express provision for the fees of leading
counsel, he could not allow them. The plaintiffs
applied by motion to Cross J., asking either that a
certificate for those costs should now be granted,
notwithstanding that it had not been asked for at
the hearing, or that the order should be amended
under the slip rule to provide for them :
Held, that, the order having been a consent order,
it could only be amended under the slip rule to
include a provision for the fees of leading counsel
if the agreement between the parties upon which it
had been based had contained, expressly or by im–
plication, a term to the effect that they should be
provided for; and that, even assuming that it was
formally possible to issue a " collateral certificate ''