Jones v McKie
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL |
| Judgment Date | 13 May 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0513-2 |
| Court | Court of Appeal |
| Date | 13 May 1964 |
[1964] EWCA Civ J0513-2
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
MR. C. M. CLOTHIER, instructed by Messrs. Gregory Rowcliffe & Company, Agents for R. H. Brandsbury, Dock Solicitor, Liverpool, appeared for the Appellants (Second Defendants) (Mersey Dock and Harbour Board).
MR. LIPKIN, instructed by Messrs. Harold Stem & Company, Agents for E. Rex Makin & Company, (Liverpool), appeared for the Respondents (Plaintiff).
No appearance for the First Defendant (J. McKie (Male)).
In my judgment this appeal fails. It is an appeal from an order as to costs made by the learned Assistant Presiding Judge of the Court of Passage on the 13th December, 1963, following the trial of an action brought by a plaintiff against two defendants. The action arose out of a road accident which took place on the27th July, 1962, when a lorry, owned by the second defendant, the Mersey Docks and Harbour Board, and driven by the first defendant, Mr. McKie, collided with and damaged the plaintiff's parked motor van. Nobody has suggested that the plaintiff was in any way to blame for the accident. Mr. McKie was admittedly a servant of the second defendant, the Dock Board; but it was the Dock Board's case, and it was accepted by the learned judge, that at the time of the accident Mr. McKie was not driving the lorry in the course of his employment but, to use the picturesque language of the last century, was engaged on a frolic of his own. In these circumstances the learned judge gave judgment in favour of the plaintiff against Mr. McKie for damages and costs, but as to the Dock Board he gave judgment in their favour against the plaintiff.
The question then arose as to what order for costs ought to be made as between the plaintiff and the Dock Board. The Dock Board had, by their defence, denied that Mr. McKie was at the material time acting in the course of his employment. Furthermore, as we are informed, a letter was later written by their solicitors to the plaintiff's solicitors, in July 1963, i.e. some months before the trial, in which it was again pointed out that Mr. McKie was not acting in the course of his employment at the time of the accident. The plaintiff nevertheless elected to proceed with his action against both defendants.
At the trial Mr. McKie was asked as to the circumstances in which he was driving the lorry at the material time, and the effect of his evidence was that he was on his way home to fetch his key which he had apparently forgotten. He said that he always took his vehicle when he went home for dinner in the ordinary way, and that no one had ever told him anything different but that he could go home for his dinner in his vehicle. He also said that it was acommon practice for the other drivers of the Dock Board to take their vehicles when they went home for dinner. Those were the circumstances, and basing himself on those circumstances the learned judge declined to make any order for costs in favour of the Dock Board against the plaintiff. Leave to appeal against that decision was asked for but was refused.
The learned judge has supplied the court, as he is bound to do under the rules, with his note of the evidence which was given before him; and to that he has appended a note with regard to the costs. I think it right that I should read what he has said. "I considered carefully the application by the second defendants for costs against the plaintiff. The plaintiff was completely innocent in the matter having left his vehicle properly parked. The Dock Board did not appear to have any system of control of their vehicles during the day. Their drivers were not forbidden to go home for lunch in the Board's vehicles and I was satisfied that as a result many drivers went home in the Board's transport. It seemed to me unworthy of the Board and contrary to the justice of the matter for them to permit a lax system of control of their transport and then to seek costs against someone who suffered as a result. The first defendant is unemployed and most unlikely to meet the judgment against him. Accordingly, I exercised my discretion in favour of the plaintiff on the issue of costs". He then records the fact that he subsequently refused leave to appeal.
The learned judge having thus stated that what he did he did in the exercise of his discretion, Mr. Clothier, who has appeared for the Dock Board on this appeal, recognised that the appeal must necessarily be somewhat difficult to substantiate.
Section 31(1)(h) of the Judicature Act, 1925, provides that no appeal shall lie "without the leave of thecourt or judge making the order, from an order of the High Court or any judge thereof made with the consent of the parties or as to costs only which by law are left to the discretion of the court". This, of course, is not an appeal from the High Court; but, as I understand it, the same principle has to be followed having regard to the appropriate section, section 260, of the Liverpool Corporation Act. The position is, therefore, whether this appeal is a permissible appeal having regard to the provisions of that section.
The effect of the section was considered in the case of Donald Campbell & Co. v. Pollak. (1927) Appeal Cases, 732, where in a celebrated and oft quoted passage, at pages 811-812, Viscount Cave described the effect of it as follows: "It appears to me the true view is that substantially taken by Lord Sterndale in the above quoted passage in his judgment of Ritter v. Godfrey, although I would express it in somewhat different language. A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the court awards them to him, and the court has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case. Thus, if – to put a hypothesis which in our courts would never in fact be realised – a judge were to refuse to give a party his costs on the ground of some misconduct wholly unconnected with the cause of action or of some prejudice due to his race or religion or (to quote a familiar illustration) to the colour of his hair, then a Court of Appeal might well feel itself compelled to intervene. But when a judge,deliberately intending to exercise his discretionary powers, has acted on facts connected with or leading up to the litigation which have been proved before him or which he has himself observed during the progress of the case, then it seems to me that a Court of Appeal, although it may deem his reasons insufficient and may disagree with his conclusion, is prohibited by the statute from entertaining an appeal from it".
What it comes to, I think, is that in order to justify an appeal as to costs only this court must be able to say that the judge in the court below, however much he may have been purporting to exercise his discretion, has not really exercised his discretion at all. This court can say that, but can say it only, as I see it, if it is satisfied that the learned judge in the court below has taken into consideration wholly extraneous and irrelevant matters.
That, I think, is also substantially in accordance with what Lord Justice Jenkins said in Baylis Baxter Limited. v. Sabath, (1958) 2 All England Reports 209, at page 215… There the learned Lord Justice said this: "The matter as it now stands really comes to this, that in a case of...
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