The Gazette 1910-11

The Gazette of the Incorporated Law Society of Ireland.

Ill

MAY, 1910]

alleged cause of action, and the whole of the learned judge's decision that the defendants ought to have judgment, but without costs " and upon reading the said judgment. It is ordered that the said judgment be affirmed and the appeal of the defendants be dis– missed with costs, to be taxed by the taxing master." That is, the defendants failed altogether to get the judgment of the learned judge modified by striking out so much of it as said the defendants were to have no costs, and giving the defendants costs " and that the cross-notice of the plaintiff be also dis– missed with costs, to be taxed by the taxing master." That is, the plaintiff's cross-notice, in which he claims that he ought to have judgment in the action, and, I suppose, probably claimed it I have not got the actual motion before me the judgment with costs ; I suppose it was dismissed, and the costs taxed by the taxing master. It seems to me, as far as that is concerned, it is a simple order under which there would be two taxations in respect of these two separate appeals. The order goes on : " And it is ordered that the taxing master do set off the plaintiff's costs of the appeal and the defen– dants' costs of the cross-notice when so respectively taxed, and certify to which of the parties the balance after such set off is due, and that such balance be then paid by the party to whom the same shall be certified to be due." It seems to me that that is a very specific order, and I am told that that order ought to be read in the light of a practice in respect of claim and counter-claim which was established by a judgment of Fry, J., as he then was, in Saner v. BiUon (L.R., 11 C.D., 416), a practice which results in the taxing master having to conduct his taxation upon the basis of which of the two sides is entitled to get the general costs. I do not myself think that the practice applies to the present case, having regard to the present order. I think that it was intended by the very terms of this order that there should be really two taxations, and that then, when these two taxations had been separately arrived at, the amount of the one should be set against the amount of the other, and that the balance should be paid by the one to the other in accordance with that result. There– fore, it-seems to me that that order is not really, and ought not really, to be affected

by this practice to which we have been referred. It may very well be that the order that this court made was not in accordance with the practice which was in force if there was such a practice in respect of cross- appeals. I cannot say ; but I frankly say that at the time when I was a party to the making of this order I was not aware that there was any such practice which would give to our order a different result from that which would have come out if the words of the order simply had been looked at, and the taxation conducted accordingly. It was said, I think, both by Mr. Tindal Atkinson and Mr. Norman Craig, that in arriving at such a conclusion as I have just described, the court would run the risk of telling the taxing master to allow sums for costs which had not in fact been incurred. I quite agree that if the result would be that which it is feared it might be, the master on taxation would probably say : " This is an order which it is impossible effectually to carry out, because it is made upon the basis that there really had been one set of costs for the defendants' appeal and another set of costs in respect of the plaintiff's appeal, and that steps in these two appeals had been taken which in fact had not been taken ; then, when I come to tax I cannot possibly allow costs or fix an amount for costs in respect to costs which have never really been incurred." But I think, and I think Hamilton, J., thought, as far as I can judge from what I have heard and what took place, that there is really no such real difficulty here. It is true that there was really only one brief on each side in respect of these two appeals. If you come to apportion the fees on those briefs, then the deadlock will not arise which has been suggested. I asked the question, and both sides are agreed that there would not be the very slightest difficulty in appor– tioning the sum given on the one brief partly to one appeal and partly to the other appeal, and if there is no difficulty in doing that and I do not understand from the Master's answers that there is any difficulty I see no reason for interfering with the judgment of Hamilton, J. I think, therefore, this appeal fails, and ought to be dismissed with costs. Fletcher Moulton, L.J. I if am also of opinion that the decision of Hamilton, J.,