Childs v Gibson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DENNING,LORD JUSTICE JENKINS |
| Judgment Date | 06 April 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0406-5 |
| Court | Court of Appeal |
| Date | 06 April 1954 |
[1954] EWCA Civ J0406-5
In the Supreme Court of Judicature.
Court of Appeal.
The Lord Chief Justice of England,
The Rt. Hon. Lord Goddard,
Lord Justice Denning and
Lord Justice Jenkins
No. 40
No. 66
No.67
Mr PHILIP GOODENDAY,(instructed by Messrs. Barton & Hanning) appeared on behalf of the Plaintiff, Mr. Childe.
Mr. IAN PERCIVAL (instructed by Messrs, Clyde & Co.) appeared on behalf of the Defendant, Mrs. Blacker.
Mr IAN PERCIVAL (instructed by Messrs. Strong & Co.) appeared on behalf of the Defendant, Mr Gibson.
THE LORD CHIEF JUSTICE. In this matter there are two appeals which have been argued, practically together. The Plaintiff is the same In both actions, but in these appeals he le the appellant In the first. In the case against Gibson, and the Respondent In the second case. against Mrs. Blacker. He is the landlord of two flats. Those flats were let apparently one to Mr Gibson and the other one to Mrs. Blacker, on the terms that they paid not only a rent but also for certain services. Mr Childs - it may be for good reasons or bad reasons, but it is held that he broke his contract - did not supply the services or all the services which he had undertaken to render, and accordingly the tenants, when they were asked to pay their rent, were claiming that they ought not to be called upon to pay the full amount because they suggested they had got a claim for damages for the failure to supply these services.
The first action that was tried was the action which was brought against Mr Gibson, and in that case the Plaintiff recovered judgment for £153. 6s. Od., and that sum was a sum which the Defendant had always admitted he was liable to pay or to give credit to Mr Childs for it. He did not dispute his liability for that sum, but he said he had got & set-off against it for the breach of contract. He put his set-off rather high, but he did recover £35 on his counterclaim. Then there came the question of costs. Costs were awarded on the claim and counterclaim. Then when it came before the learned Registrar as the Taxing Officer- of the Court, he announced that he should tax the costs in accordance with the decision of this Court in the case of N.V. Amsterdamache Lueifersfabrieken v. H. & H. Trading Agencies, Ltd., which is reported in 1940, 1 All England, at page 587.
The decision in that case in I think conveniently and concisely put in the headnote in these terms: "In an action which was remitted to the county court, the defendant e in their defence admitted the plaintiffs' claim. There was, however,counterclaim, which was the subject of dispute, the defendants ultimately succeeding on the counterclaim, though for a smaller amount than that claimed." Now, that is as exactly the position here. "The order drawn up adjudged that the plaintiffs should recover the amount of the clalm and the costs of the claim, and that the defendants should recover the sum awarded on their counterclaim and the costs of the counterclaim:-
"HELD: by reason of the admission in the defence of the plaintiffs' claim, there were attributable to the claim no costs which had to be divided or apportioned as between the claim and the counterclaim' The plaintiffs' costs should have been taxed on the principle that, after the admission of the claim, the plaintiffs were not entitled to incur any costs relating to the claim except those of setting down and obtaining leave to proceed, and the costs of the defendants should be taxed upon the principle that they were successful on the only matter litigated, but this would not affect any costs given to either party In any event."
That was the principle upon which the Registrar said he was going to tax. It seems to me that that Is a case which was binding upon the Registrar as it is binding on this Court, and really when you come to think of it, it le very good sense and very good Justice. Then the matter was taken before the learned Judge by way of review of taxation, and the learned Judge, who remembered the case, who knew what the issues were that had been tried before him, andwho obviously remembered all about the case, said that he had no doubt whatever that the whole of the litigation expenses resulted from the counterclaim; in other words, the only point that was litigated before the learned Judge was the counterclaim; the other point had been admitted; and therefore, having considered the Amsterdamschecase, he came to the conclusion that the learned Registrar was right to follow It and dismissed the applicationto preview. Well, I think the learned Judge was perfectly right to take that view, just as I think the Registrar was right to take that view. Moreover, it perfectly clear that in this case the learned Judge has exercised his discretion on grounds which are in the...
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