Macleod, C.J:— [After expressing entire agreement with the learned trial Judge's view on the main question that the plaintiffs had failed to prove the contract alleged to be contained in the correspondence, proceeded:] Then there arose a further question with regard to costs. There was a certain order made on June 7, 1922, whereby it was ordered that Arthur Smith, a witness for the defendants, should be examined de bene esse on June 9, 1922, before the Prothonotary or one of the Deputy Registrars of this Court with liberty to the plaintiffs if so advised to cross-examine the said witness, and that the evidence so to be taken should be admitted and used at the hearing of the suit saving all just exceptions. And it was ordered that the costs of and incidental to that order and of the examination should be costs in the cause Then on October 24, 1923, another order was obtained whereby a commission was issued for the purpose of taking the examination, cross-examination and re-examination viva voce, of Mr. A.F Pringle in Rangoon and it was ordered that the evidence taken under the commission together with Exhibits if any should be read and used in evidence in the suit saving all just exceptions and that the costs of the parties therein of and incidental to the application and order, and of such examination should be costs in the cause.
[After referring to the passage in the judgment of Crump J., above quoted, the learned Chief Justice proceeded:]
Section 35 of the Civil Procedure Code says:—
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing.”
That section lays down a general rule as to the powers of the Court in awarding costs, and, as it is provided that, if the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing, effect was thereby given to the general rule of practice that costs shall follow the event, unless the Court decides that for some good reason the successful party shall be deprived of the whole or part of his costs.
Reference has been made to the decision of the House of Lords in Reid, Hewitt and Company v. Joseph, where it was held that “the expression ‘the costs shall follow the event’ in the second proviso to Order LXV, Rule 1, which regulates the costs in jury actions, means that the party who on the whole succeeds in the action gets the general costs of the action, but that, where the action involves separate issues, whether arising under different causes of action or under one cause of action, the costs of any particular issue go to the party who succeeds upon it.
An issue, in this sense, need not go to the whole cause of action, but includes any issue which has a direct and definite event in defeating the claim to judgment in whole or in part”.
It has never been disputed in this Court that the Court which decides in favour of one party or the other may direct that the costs of certain issues shall be paid by the party who loses on those issues, although he may have won the action by reason of the findings on the remaining issues. The general rule of practice that costs should follow the event, is not connected in any way with the proper construction to be put on the words “costs costs in the cause”, when appearing in an order of the Court.
In Templeton v. Laurie, a question arose before Mr. Justice Russell with regard to the meaning of the words “costs costs in the cause” in an order which had been made before trial. His Lordship said (p. 237):—
“I am of opinion that these words do not mean that these costs will follow the event, but that those costs remain to be dealt with by the Court at the bearing. In the Court of Chancery as is well known, costs have always been in the discretion of the Court, and as a general rule costs will follow the result: See Bartlett v. Wood; Ferguson v. Wilson. In Hodges v. Hodges(4), Jessel, M.R, says:— ‘The dismissal of an action with costs ought to include all costs reserved. I will give instructions to the Registrars always to insert, without any special directions, in all orders made in this branch of the Court, the words “Including costs of all applications ordered to stand over until trial, and all costs reserved to be disposed of at the trial”. So that it will be for the other side to show why they should not be put in’.”
It is perfectly clear that where no order has been made on an interlocutory application with regard to costs, or it is specially directed that the costs should be reserved, then the Judge who decides the case has complete power and discretion over the costs of such interlocutory applications. But it is different where the Judge who decides an interlocutory application makes an order as to costs, either directing that one of the parties should pay the costs, or that the costs should be costs in the cause.
In the case I am dealing with reference was made to the decision in Koosen v. Rose. The action was brought to recover the sum of £150, the price of a motor carriage. The plaintiff having taken out a Summons for judgment under Order XIV, Day J., at Chambers, gave the defendant leave to defend, and ordered that the costs of the application should be costs in the cause, and further directed that the case should be put into the Short Cause list. Wright J. at the trial gave judgment for the plaintiff with costs, less the amount of the costs of the proceedings under Order XIV. The Judge said that in his opinion the case was not one fit to be tried under Order XIV, and that in all probability if the facts had been fully known to Day J. he would have made the plaintiff pay his own costs. The plaintiff appealed from so much of the judgment as deprived him of his costs of the application at Chambers. Lord Esher M.R said:—
“Wriglit, J., at the trial assumed to himself the power of altering a decision which had been come to by Day, J., at chambers with regard to the costs of an application under Order 14. This appeal is brought on the ground that he had no jurisdiction to interfere with that order as to costs. The rule must be this, that a Judge cannot interfere with an order of a judge of co-ordinate jurisdiction by way of appeal or otherwise, unless some statute has expressly given him the power to do so. In my opinion that part of the judgment which deprived the plaintiff of his costs of the application under Order 14 was without jurisdiction and void, and must be overruled”.
It was clearly considered, then, by the Master of the Rolls that Mr. Justice Day in ordering costs to be costs in the cause had directed that those costs should follow the general costs of the action, and it was not open to the Judge who heard the case to make another order depriving the plaintiff, who was entitled to the general costs of the action, of the costs of the interlocutory application under Order XIV. Mr. Justice Russell distinguished that case, considering that it was a special case, because Order XIV specially provides that the Judge in Chambers shall deal with costs. But it is perfectly clear that in all applications in Chambers the Judge has a discretion to deal with the costs of the application. The same rule applies to applications made in Court by way of motion. When the Judge either in Chambers or on motion makes an order that the costs of the application or motion shall be costs in the cause, he makes an order that those costs should be received by the party who gets the general costs of the action, and it, is not open to the Judge who hears the case to interfere with that order. We think, therefore, that the decision of Mr. Justice Russell in the case I have cited must be over-ruled. Although the case went to the appeal Court in appeal against the decision of the learned Judge on the preliminary issues raised at the trial, this particular decision on the question of costs does not appear to have been dealt with by the Judges in appeal, and therefore we are entitled to take it for granted that that particular question was not prosecuted before the appeal Court. The decision still remained the decision of a single Judge.
We think that Mr. Justice Crump failed to realise the distinction between giving effect to the rule laid down in the Civil Procedure Code that costs shall follow the event, unless the Judge gives reasons to the contrary in writing, and the question of construing a particular order made by a Judge with regard to costs. When in the orders for the examination of one witness de bene esse and the examination of another witness on commission, it was ordered that the costs should be costs in the cause, the Judge who heard the case had no jurisdiction to interfere with those orders whereby those events become part of the general costs of the action to which the successful defendants were held entitled. It would have been open to the learned Judge to have held that the defendants by their conduct were not entitled to the whole of the costs of the action, and, if he had dealt with the case in that manner, then there would have been no reason to interfere. But as the case stands at present, the costs which I am now dealing with must be taken to be part of the general costs of the action, and the defendants are entitled to them. To that extent the cross-objections must be upheld. The appeal is dismissed and the cross-objections are allowed with costs in both cases.
Coyajee, J.:— I agree.
Solicitors for appellants:— Messrs. Crawford, Bayley & Co.
Solicitors for respondents:— Messrs. Craigie, Blunt and Caroe.
Appeal dismissed: Cross objections allowed with costs.
K. MCI. K.