The Gazette 1964/67

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 ''