Berry v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE DEVLIN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 23 June 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0623-1 |
| Date | 23 June 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0623-1
Lord Justice Ormerod
Lord Justice Devlin and
Lord Justice Danckwerts
In The Supreme Court of Judicature
Court of Appeal
The Appellant appeared in person.
Mr NEIL LAWSON, Q.C., Mr P. O'CONNOR, Q.C. and Mr G.M.M. WAKEFORD (instructed by M.H.B. Gilmour) appeared on behalf of the Respondents (Defendants).
Mr R. ORMROD, Q.C. and Mr KEMP ROMER appeared as amici curiae.
: This appeal is from a decision of Mr Justice Diplock given on the 29th July, 1960, and arises in these circumstances. The Appellant, Miss Pamela Berry, on the 4th January, 1959, was travelling on a train between Brighton and Lancing. In the course of her journey she had occasion to pull the communication cord for reasons which seemed to her reasonable and sufficient, and in consequence she train was stopped. The Respondents, in pursuance of Section 22 of the Regulation of Railways Act, 1868, issued a summons against the Appellant in the Brighton Magistrates' Court and on the 13th February, 1959, the Appellant appeared at that Court and pleaded not guilty but was fined and ordered so pay the sum of 20/- and 27/- for costs. On the 6th July, 1959, the Appellant appealed against that conviction to the Recorder of the County Borough of Brighton and the appeal was allowed and the prosecution wholly determined in favour of the Appellant, and she received costs, amounting to the sum of 15 guineas, awarded to her against the Respondents by the learned Recorder. The Appellant in consequence on the 26th October, 1959, issued a Writ against the Respondents claiming damages for malicious prosecution, and the Statement of Claim setting out the facts as I have recited them was delivered on the 7th November, 1959, and amended and redelivered on the 3rd March, 1960. It is to be noted that the only particulars of special damage given in the Statement of Claim were the special damages relating to costs and they were calculated on the basis of the amount actually expended by the Appellant in her defence both at the Magistrates' Court and before the learned Recorder at Quarter Sessions, credit being given for the amount of costs awarded to her at the Quarter Sessions. By paragraph 4, however, of the Statement of Claim the Plaintiff alleges that by reason of the premises she has been injured in reputation and has been held up to ridicule and has suffered pain in mind and has been put to expense in defending herself against the said charge and has suffered loss and damage. The Defence was delivered on the 2nd December, 1959, and the only paragraph which is relevant in this appeal is the fifth paragraph, included by amendment, which is as follows: "The Defendants will contend that the Statement of Claim discloses no damage of which the plaintiff is entitled to complain in law and in the premises the Statement of Claim discloses no cause of action".
The matter came before Master Harwood in Chambers on the 3rd March, 1960, when he made an Order as to particulars and in paragraph 7 of the Order provided as follows: "that the point of law raised by the Defendants in paragraph 5 of their Amended Defence be set down for hearing as a preliminary issue between the Plaintiff and Defendants and sot down in the Special Paper List within 7 days and disposed of before the trial of issues of fact in this action".
In consequence of that Order the matter came before Mr Justice Diplock on the 29th July, 1960. The question then to be determined was whether the Statement of Claim was demurrable or whether it disclosed any cause of action, and two questions fell to be considered. The first question was whether in the circumstances the Plaintiff had suffered damage in the injury to her reputation and fair name, and secondly whether she had. been put to expense with regard to costs having regard to the. fact that the learned Recorder had awarded to her the sum of 15 guineas costs. The learned Judge came to the conclusion that the Plaintiff's claim disclosed no cause of damage under either head. It is against this decision that this appeal has come to us, and I should say at this stage that it was the intention of the Appellant, as, no doubt for proper reasons, she was unable to obtain legal assistance, to appear in person to argue this appeal.
As the appeal involved complicated questions of law Mr Roger Ormrod and Mr Homer kindly consented to appear in the case as amicicuriae and to argue it on the Appellant's behalf. I think I am reflecting the views of the other members of the Court as well as myself when I say how much we are indebted to them for the very great assistance which they have given to the Court during the appeal. It would have been extremely difficult for this Court to decide these complicated questions had the case not been properly argued as it has been.
I have had the advantage of reading the Judgments about to be delivered by my brethren. I agree with the views they have expressed as to the damage sustained by the Appellant in incurring costs in her defence both before the Magistrates and before the learned Recorder. This question has been discussed exhaustively by Lord Justice Devlin in his Judgment, and it is perhaps unnecessary for me to say anything further. As we are differing from the learned Judge, however, on this part of the case, I would like to express shortly my reasons for so doing.
Mr Justice Diplock in his Judgment discussed at some length the position in the event of an award of costs in a civil action, and he cited the well-known passage from the Judgment of Lord Justice Bowen in the ( Quartz Hill Mining Co. v. Eyre 11 Queen's Bench Division, page 674). There can, I think, be no doubt that costs incurred in excess of the sum allowed on taxation cannot be recovered as damages. As Lord Justice Bowen said in the passage cited by Mr Justice Diplock, "If the Judge refuses to give him costs, it is because he does not deserve them; if he deserves them, he will get them in the original action". Considerable doubt has been expressed from time to time as to the reality of that view, but it is well established and in any event it is not for this Court to disturb it.
The learned Judge on page 13 "E" of the copy of the transcript of his Judgment supplied for the use of the Court said: "I do not think any distinction is to be drawn in law between civil and criminal cases which are tried summarily". He then goes on to deal with the various provisions whereby in certain cases Courts exercising criminal jurisdiction are enabled to award costs. It is with this part of the learned Judge's view that I find myself unable to agree. Costs in this case of the sum of 15 guineas were awarded to the Appellant by the learned Recorder by reason of Section 5 of the Summary Jurisdiction (Appeals) Act, 1933, which is as follows: "(l) On any appeal to which this Act applies a court of quarter sessions may, in the exercise of their power to award costs (i) where they allow the appeal direct that there shall be included in any costs to be paid by the respondent to the appellant the costs properly incurred by the appellant in the proceedings before the court of summary jurisdiction or such fixed sum as the court of quarter sessions may consider reasonable in respect of the costs so incurred by him. (ii) in any case, in lieu of directing a taxation of costs, fix the sum to be paid by way of costs by either party to the appeal; and in fixing, for the purposes of this sub-section, the amount of any costs to be paid by a party to an appeal shall have regard to his means".
It would seem that the real distinction between the two types of cases is that in a civil action it has been well established that, although the Judge has a discretion as to costs, it is a discretion that must be exercised judicially, and in consequence a successful litigant can only be refused an order for costs if there, is a good reason for it. This is not the case when costs are awarded in a criminal prosecution. It is provided, for instance, by the section I have set out that "such fixed sum as the court of Quarter sessions may consider reasonable in respect of the costs so incurred" may be awarded. It may well be that the costs awarded may have no relation to those incurred, and indeed it is provided that in fixing the amount of any costs to be paid by a party to an appeal under sub-section (ii) of the above section regard shall be had to his means. The effect of this appears to be that an award of costs in a case of this kind is not intended by the legislature necessarily to compensate a successful appellant. It is certainly not the practice of the Courts that this should be so. It follows, I think, that in the circumstances costs of the nature awarded in this case cannot be treated as similar to costs awarded in a civil action, and if this be so then it cannot be said that the Appellant has not pleaded that she has suffered special damage so as to bring her within the requirements in an action of this nature laid down by Chief Justice Sir John Holt in Savile v. Roberts, reported in 1 Lord Raymond, at page 374 and in numerous other reports.
It follows, therefore, that in my judgment the Statement of Claim is not demurrable and I would allow the appeal on this ground. This opinion is, I believe, shared by my brethren. It is not necessary, therefore, to discuss the other question as to whether there has been any damage to the fair name of the Appellant, and I refrain from doing so beyond stating the opinion that as at present advised I would be inclined to uphold the view expressed by the learned Judge. But the question involves the reconciliation of conflicting authorities, and in the circumstances it appears unnecessary to come to a decision upon it.
In this appeal we have to consider two...
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