The Gazette 1955-58

present case as inviolate, as I am asked to do, I think I should be setting an unfortunate precedent because there are no special facts about the present case to justify such special treatment. Having said that I hope I may still say that I am very sorry for this particular plaintiff. Through not accepting the £1,000, he gets £760 less costs which will substantially diminish the award ; but I can see no ground on which I can give him relief. If the defendants feel it right not to enforce the order regarding costs, or to make some concession re garding that, that of course is a matter entirely for them. My order must be that the plaintiff have the costs of the action up to the date of payment in, and the defendants have the costs thereafter and that any excess of the latter costs over the former be paid to the defendants out of the £1,000 in court; the balance to be paid out to the plaintiff. (Graham v. C. E. Heinke & Co. Ltd.—(1958) i All. E.R. 365.) An order that two actions lie listed and tried, together does not convert those two actions into one set of proceedings ; the Court therefore has no jurisdiction to order a party to only one of the two actions to pay costs incurred by the other party in proceedings to which that person was not a party. Rules of the Supreme Court, Order 65, rule i, which provides that " the costs of and incident to all proceedings in the Supreme Court . . . shall be in the discretion of the Court" gives the court a discretion to order the costs of and incident to all proceedings to be paid by the parties to those pro ceedings, or any of them as the court in its discretion thinks right, but does not empower the court to order a person to pay costs incurred by another party in proceedings to which that person was not a party. An Australian mercantile company, (" W. Ltd.") procured an English company (" E. Ltd."), carrying on business in Australia as advertising practitioners, to go into voluntary liquidation at a time when the newspaper proprietors (" F. Ltd.") had not been paid for the advertisements. E. Ltd. com menced an action against W. Ltd. alleging, inter alia, that E. Ltd. acted as principal and not as agent in executing the advertising, and claiming the sums agreed to be paid by W. Ltd. for the advertisements. By consent proceedings were agreed to be brought in England on behalf of re presentative claimants of the newspaper proprietors against W. Ltd., and the existing action by E. Ltd. against W. Ltd. and the new action were to be ordered to be listed and tried together. The news paper proprietors (" F. Ltd.") accordingly com­

menced an action against W. Ltd., claiming that E. Ltd. had ordered the advertisements as agents for W. Ltd., and that W. Ltd. was therefore liable to F. Ltd. for the price of the advertisements. The two actions were ordered to be listed and tried together. At the trial judgment was given for E. Ltd. against W. Ltd. in the action between them, and for W. Ltd. in the action brought by F. Ltd., the court holding in each action that E. Ltd. had acted as principals and not as agents for W. Ltd. W. Ltd. thereupon applied in the action brought by F. Ltd. for the costs of the action brought by E. Ltd. to be paid by F. Ltd. On appeal by W. Ltd. against the determination of the trial judge that he had no jurisdiction to make such an order. Held by the Court of Appeal (Jenkins, Parker and Pearce, LJJ., affirming Gorman J.) that the order that the two actions be listed and tried to-, gether did not convert the two actions into one set of proceedings, and so did not make F. Ltd. a party to the action by E. Ltd., and the court therefore had no jurisdiction to order F. Ltd. to pay the costs of that action. Appeal dismissed. Per Jenkins, L.J.—In the present case, as has appeared from what I have already said, there was no consolidation. The difficulties in the way of consolidation were obvious in that the two actions were actions in which the interests of the respective plaintiffs were diametrically opposed. However, assuming that, in theory, consolidation would have been practicable, there was none. These two actions, still bearing their original character as separate and distinct actions, were, for convenience, listed and heard together ; but that does not make them any thing else than two actions, and I think that the learned judge's discretion as to the costs of either action must be confined to the parties to that action. For the reasons which I have endeavoured to express, I think that the learned judge came to a right conclusion in holding he had no jurisdiction to make the order sought. Per Parker, L.J.—I agree. Under the Rules of the Supreme Court, Order 65, rule i : " . . . the costs of and incident to all proceedings in the Supreme Court . . . shall be in the discretion of the court or judge ..." " Proceedings " there must mean pro ceedings properly brought before the court in the prescribed manner (see Order i, rules i and 2). It is also clear that A cannot be ordered to pay the costs of B incurred in proceedings to which A was not a party. I am satisfied that the order does not have the effect of turning separate proceedings into one set of proceedings. Nothing short of consolida tion can do that under the existing rules, and in this case not only was there-no order for consolida-