Hobson v Leng (Sir C. W.) & Company
| Jurisdiction | England & Wales |
| Court | Court of Appeal |
| Year | 1914 |
| Date | 1914 |
Practice - Costs - Taxation - Joint Defendants in Action of Libel - Defendant severing in Pleading - Judgment against both Defendants with Costs - Liability of Defendants for Costs of Plea of Justification pleaded by one Defendant only -
In an action of libel against two defendants one defendant admitted his liability and pleaded an apology, the other pleaded justification. At the trial a verdict was found against both defendants for 750l., and judgment was entered for the plaintiffs for that sum, with costs to be taxed:—
Held, that the defendant who pleaded the plea of justification was alone liable for the costs occasioned to the plaintiffs by and in consequence of that plea, and that the other defendant was not liable for those costs.
APPEAL of the plaintiffs from an order of Rowlatt J. at chambers.
The plaintiffs A. J. Hobson and W. Hobson issued a writ against Sir W. C. Leng & Co., Limited, the proprietors of the Sheffield Daily Telegraph, and Charles Hobson for an alleged libel published in that newspaper. The defendants Sir W. C. Leng & Co. in their defence admitted their liability and pleaded publication of an apology; the defendant C. Hobson pleaded a justification. At the trial the jury found a verdict for 750l. damages against both defendants, and judgment was entered accordingly with costs. The form of judgment as drawn up was as follows: “It is adjudged that the plaintiffs recover against the defendants 750l. and costs to be taxed.” Upon the taxation of the plaintiffs' costs by the district registrar the defendants Sir W. C. Leng & Co. asked that the costs should be apportioned between the two defendants so that the defendants Sir W. C. Leng & Co. should not be liable to pay any part of the costs caused solely by the defendant Hobson's plea of justification. The district registrar refused the application and allowed the costs occasioned by the plea of justification as against both defendants; the defendants Sir W. C. Leng & Co. carried in objections to this taxation, and the district registrar issued his certificate disallowing the objections. Upon a summons to review the taxation Rowlatt J. ordered that the objections of the defendants Sir W. C. Leng & Co. to the taxation be allowed and that it be referred back to the district registrar to vary his certificate accordingly, and he gave the defendants Sir W. C. Leng & Co. the costs of and consequent upon the application.
The plaintiffs appealed.
Tindal Atkinson, K.C., and Jardine (Waddy with them), for the plaintiffs. The libel was a joint tort; the damages and costs cannot be severed; and there can be only one judgment against both defendants for the same sum: Greenlands v. Wilmshurst.F1 The question arose in Stumm v. DixonF2, and the Court of Appeal was divided on the point, Lord Esher M.R. holding that the defendant who delivered a separate defence was alone liable for the costs occasioned to the plaintiff by and in consequence of the separate pleading, while Fry L.J. held that both defendants were jointly and severally liable for all the costs of the action. It is submitted that the view of Fry L.J., which proceeded upon the ground that the result of the opposite view would be to vest in the Master a discretion which belonged only to the Court or judge, was right, and ought to be followed in preference to the view of Lord Esher M.R. It must not be forgotten that the justification was a defence of which the newspaper could take advantage. The present is not a case in which an issue has been decided in favour of the defendant. The costs were properly incurred by the plaintiffs in fighting the case of two joint tortfeasors. Stumm v. DixonF2, as finally decided, is in the teeth of the old authorities, and engrafts an exception on the old rule that the plaintiff was entitled as against all the defendants to his costs. In Kelly's Directories v. Gavin and LloydsF3 the plaintiffs sued two defendants to restrain an infringement of copyright; they obtained an injunction with costs against one defendant, but failed (though without costs) against the other; by the order as drawn up the unsuccessful defendant was directed to pay to the plaintiffs “their costs of this action”; and it was held that he was liable to pay to the plaintiffs all the costs of the action, including those incurred against the successful defendant. That decision is conclusive in favour of the plaintiffs. The decision in Stumm v. DixonF4 was...
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Fellner v Dönges; Fellner v Minister of the Interior
...necessary to E express any opinion about the remarks of BRETT, M.R., in the The Vera Cruz (No. 2), 9 P.D. 96, applied in Hobson v Leng, 1914 (3) K.B. 1245, and of DIXON, J., in Tasmania v Victoria, 52 C.L.R. 157; assuming those remarks to represent a view preferable to that adopted in the H......
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Fellner v Minister of the Interior
...necessary to E express any opinion about the remarks of BRETT, M.R., in the The Vera Cruz (No. 2), 9 P.D. 96, applied in Hobson v Leng, 1914 (3) K.B. 1245, and of DIXON, J., in Tasmania v Victoria, 52 C.L.R. 157; assuming those remarks to represent a view preferable to that adopted in the H......