Kawarindrasingh v White
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE BROOKE,LORD JUSTICE ALDOUS |
| Judgment Date | 05 November 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J1105-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 November 1996 |
| Docket Number | LTA 95/5291/C |
[1996] EWCA Civ J1105-4
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PETERBOROUGH COUNTY COURT
(HIS HONOUR JUDGE MORRELL)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Lord Woolf)
Lord Justice Aldous
Lord Justice Brooke
LTA 95/5291/C
Mr Kawarindrasingh appeared in person.
The Respondent did not attend and was not represented.
I will ask Lord Justice Brooke to give the first judgment.
This is an application by a plaintiff for leave to appeal against an order of Judge Morrell made in the Peterborough County Court on 25 October 1994 on a review of a taxation of costs. The judge held that there were no grounds for interfering with the District Judge's decision that the costs should remain taxed in the sum of £67.66 in contrast to the sum of £425 claimed by the plaintiff. The judge refused leave to appeal and the plaintiff now renews his application for leave to appeal before this court.
The relevant orders for costs were made as long ago as 1986 and 1987. They were made in the context of a claim, which was originally started in August 1984 in the Ashby-de-la-Zouch County Court, in which the plaintiff claimed damages for breach of contract limited to £5,000 against a defendant who was engaged in the business of buying and selling dogs on a farm near Leicester. The dispute was concerned with a payment of air freight charges in connection with a plan to ship two puppies bred by the defendant by air to the plaintiff in India. At all material times the plaintiff has lived in India and he entrusted the conduct of this action not to an English solicitor but to his brother who lives in England.
In due course the proceedings were transferred to the Peterborough County Court where, on 9 January 1986, Mr Registrar Martin made an order that the defendant should swear and serve on the plaintiff within 14 days an affidavit verifying his list of documents and that the costs of the application should be the plaintiff's in any event.
On 13 February 1987 in the same County Court, Mr Registrar Whitehirst ordered that the application before him, presumably by the defendant, should be dismissed and that the defendant should pay the plaintiff's costs and expenses in any event. The action proceeded but the details of what occurred later are not before this court and are not relevant to the present application.
On 14 June 1992 a bill of costs was submitted on the plaintiff's behalf relating to those two orders. This bill amounted to £425. It was headed "Taken as Costs of Plaintiff's Representative as Plaintiff in Person at Current Rates…."
The bill was taxed on 2 July 1993. The costs which were allowed were stated as follows:
| "Costs allowed for one attendance in 1986 | £15 |
| Costs allowed for one attendance in 1987 | £20 |
| Preparation 1986 (half hour) | £ 8.66 |
| Preparation 1987 (half hour) | £12 |
| Plus travel | £12 |
| Total | £67.66" |
In addition a taxing fee of £3.40 was allowed but the costs of taxation were otherwise disallowed.
There followed a long period during which the same District Judge reconsidered and confirmed his earlier taxation on two separate occasions. The plaintiff then sought a review by the judge. On 25 October 1994 Judge Morrell conducted his review without assessors. In a written judgment dated 31 October 1994 he said that he could find no grounds upon which he should interfere with the decision of the District Judge. He considered that he was bound by the judgment of this court in Hart v Aga Khan Foundation [1984] 1 WLR 994 to decide the review in accordance with the principles set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. He reviewed the District Judge's order on this basis and decided that he had not had regard to any irrelevant considerations, or failed to take into account relevant considerations, and it could not be said that his opinion was clearly wrong.
Judge Morrell was aware of the fact that in Madurasinghe v Penguin Electronics (a Firm) [1993] 1 WLR 989 McCowan LJ had suggested at page 994C that the decision in Hart's case might require reconsideration on some future occasion, but he said that since this was a taxation of the costs of a litigant in person he was bound by the decision in Hart.
The plaintiff now seeks leave to appeal against this judgment. Rules relating to costs in the County Court are contained in Order 38 of the County Court Rules l981. Order 38 rule 17, whose predecessor was introduced as a consequence of the enactment of the Litigants in Person (Costs and Expenses) Act 1975 makes provision for the costs of a litigant in person. Order 38 rule 17(4) states:
"Where the costs of a litigant in person are taxed or assessed without taxation—
(a) he shall not be allowed more than such sum as would be allowed in the High Court in respect of the time reasonably spent by him in doing any work to which the costs relate if in the opinion of the court he has not suffered any pecuniary loss in doing the work, and
(b) the amount allowed in respect of any work done by the litigant in person shall not in any case exceed two-thirds of the sum which in the opinion of the court would have been allowed in respect of that work if the litigant had been represented by a solicitor."
At the heart of this application is an issue of considerable public importance relating to the nature of a judge's jurisdiction when he or she hears an application for a review of taxation, made pursuant to Order 38 rule 24(4), by a party who is dissatisfied with the district judge's decision on a reconsideration of a taxation. Order 38 rule 24(6) provides, so far as is material:
"….On the hearing of the application the judge may exercise all such powers and discretion as are vested in the district judge in relation to the subject matter of the application."
Order 38 rule 24(7) gives the judge the power to appoint two assessors, if he sees fit, one of whom must be a District Judge. In the present case Judge Morrell decided not to avail himself of this power.
In my judgment, Order 38 rule 24(6) reproduces in a codified form the familiar principles which govern the jurisdiction of a judge on an interlocutory appeal from a Master or District Judge. These are clearly set out in the speech of Lord Atkin in Evans v Bartlam [1937] AC 473 at p 478:
"I only stay to mention a contention of the respondent that the Master having exercised his discretion the judge in Chambers should not reverse him unless it was made evident that the Master has exercised his discretion on wrong principles. I wish to state my conviction that where there is a discretionary jurisdiction given to the Court or a judge the judge in Chambers is in no way fettered by the previous exercise of the Master's discretion. His own discretion is intended by the rules to determine the parties' rights: and he is entitled to exercise it as though the matter came before him for the first time. He will, of course, give the weight it deserves to the previous decision of the Master: but he is in no way bound by it. This in my experience has always been the practice in Chambers, and I am glad to find it confirmed by the recent decision of the Court of Appeal in Cooper v Cooper [1936] WN 205, with which I entirely agree."
As Judge Morrell was well aware, a difficulty had arisen in relation to the interpretation of his powers because of something said by Cumming-Bruce LJ...
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