The Gazette 1909-10

The Gazette of the Incorporated Law Society of Ireland.

102

[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 ;