The Gazette 1955-58

The costs so awarded should come out of the damages awarded. (Nolan v. C. & C. Marshall, Ltd. (1954) i All. E.R. 328, followed.) Per Donovan J. : " Consequent on my award of £760 damages as compared with a payment into court by the defendants of £1,000 tne defendants ask that they shall have the costs of the action as from the date of such payment in. The application is resisted on behalf of the plain tiff on the ground that the payment in must be re,- garded as a nullity, since it did not comply with the terms of R.S.C., Ord. 22. R.S.C./Ord. 22, r. i (i), provides, missing out irrelevant words : " In any action for a debt or damages . . . the defendant may at any time after appearance upon notice to the plaintiff pay into court a sum of money in satisfaction of the claim or (where several causes of action are joined in one action) in satisfaction of one or more of the causes of action ..." The plaintiff did not take out this sum and the action proceeded to trial with the result already stated. It is now said for the plaintiff that the notice should have specified the cause of action in respect of which the payment was made, that is, either breach of statutory duty or negligence at common law, or partly the one and partly the other, and that in the absence of such specification the payment in must be disregarded, so as to entitle the plaintiff to his full costs. Accordingly, to deprive such a defendant of his costs for failure to make such a specification would be wholly unjust, and I ought to avoid such a result if some other construction of R.S.C., Ord. 22, r. i (2) is reasonably possible. I think that it clearly is. It should be remembered that the writ in this case was issued on Dec. 5, 1956, and the statement of claim was delivered on the same day. The payment in of .£1,000 was made on Dec. 28, 1956, before any defence was delivered. The plaintiff considered it was not enough. Rightly or wrongly I have held that it was more then enough. So the whole costs of the action since Dec. 28, 1956, have been occasioned by the plaintiff's view, now held to be wrong. In .these circumstances I can see no ground for making the defendants pay the expense of the proceedings after payment in, or to deprive them of their own costs of resisting such proceedings. Where a litigant is assisted by public funds a particular duty lies on him not to refuse a reasonable offer, and certainly not to trade on his privileged position in the matter of costs to decline to accept a payment in which he might well accept if not so privileged. I am not saying that this is such a case, but if I were to treat the award of damages in the 82

included in the words " preliminary taxation ". The summons then asks " that it may be referred back to the taxing master to vary his certificate accord ingly ". I really do not know whit that was intended to mean because, if I had to deal with this question —which I probably should have done if a sufficient number of the parties had appeared before me to argue it—I should have made some sort of de claration of principle, but I should not have needed to vary the certificate, for the simple reason that the taxing master has not certified anything which is material to anybody, so far as I can see, except that he says there is a question of principle. That is not a decision on a question of principle. It is true that the taxing master said that he disallowed the ob jection, but he has to go further than disallow the objection. He has to make a certificate which gives effect to the disallowance, and that he has never done. I would have given both sides. In my view, the summons in its present form is impossible for the reasons which I have stated. I propose to dismiss the summons with no order as to costs. (Re Fraser deceased—Leach v. Public Trustee— (1958) i All. E.R. 26.) Costs where lodgment in court not beaten, although not apportioned among several causes of action pleaded. The requirement of R.S.C., Ord. 22, r. i (2), that a notice of payment into court in satisfaction of several causes of action should specify what sum is paid in respect of each cause of action is directed to cases where the several causes of action give rise to independent claims for damages, not to cases where satisfaction of one cause of action ends the whole claim ; they are only alternative in that one award of damages is possible; so that satisfaction of one cause of action ends the whole claim. The plaintiff, an assisted person, brought an action against his employers for damages for personal injuries sustained by him when working at a machine in the course of his employment. The claim was based on alleged negligence and breach of statutory duty. Before any defence was delivered the de- tendants paid £1,000 into court, stating in their notice of payment in that this sum was " enough to satisfy the plaintiff's claim ". The notice did not specify what sum was paid in respect of which cause of action. At the trial the plaintiff succeeded on both causes of action, and recovered one sum of £760 damages. Held by Donovan J. that: The defendants were entitled to their costs of the action after the date of payment in because the two causes of action, viz., the alleged negligence and the breach of statutory duty, did not give rise to independent claims for damages but entitled the plaintiff to only one award.