Morgan v Carmarthen Corporation
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HODSON |
| Judgment Date | 05 April 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0405-1 |
| Court | Court of Appeal |
| Date | 05 April 1957 |
[1957] EWCA Civ J0405-1
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls (Lord Evershed),
Lord Justice Hodson and
Lord Justice Romer.
Mr Charles Russell, Q.C. and Mr Helenus Milmo (instructed by Messrs Swepstone, Walsh & Son) appeared as Counsel on behalf of the Appellants.
Mr R.O. Wilberforce, Q.C. and Mr Nigel Warren (instructed by Messrs Boxall & Boxall) appeared as Counsel on behalf of the Respondents.
: This is an appeal by leave of this Court from an interlocutory Order made by Mr. Justice Danckwerts on the 15th January, 1957, in the action of Morgan, v. The Mayor, of the Aldermen and Burgesses of the County of the Borough of Carmarthen. In my judgment, though I confess to some feeling of regret, this appeal must be allowed.
The action, which was begun apparently in the year 1955, is one in which the Plaintiff (according to the title of the action, "trading as Keble Morgan & Co.") is making a claim of the in regard to a cattle market in the County of the Borough of Carmarthen. In the month of February, 1956, there appeared in the Daily Sketch newspaper an article or news item which bore the title "I'll break this ring". The consequence of that publication was a motion to the Chancery Court asking that the Plaintiff, as having been in part responsible, and two gentlemen called Peter Stewart and Herbert Smith Gunn, who are in the service or upon the staff of the Daily Sketch newspaper, should be committed to prison for contempt of Court. The contempt was not of a character which is perhaps more commonly encountered in the Chancery Division, namely, for disobedience of some Order which the Court had made, but constituted an act calculated to interfere with the fair and due administration of justice and one designed or likely to embarrass the Defendants in the proper defence of the action.
The relevance of this last remark is that the case was very plainly one in which not only were the public concerned because the High Court, as it was alleged, was being contemned, but also the Defendants, who were defending themselves in the Courts were, as they said, likely to be embarrassed. When the motion for contempt came on I gather that it followed the course which, as Mr Wilberforce has pointed out, is often the case in such matters. It was first said by the Plaintiff and by Messrs Stewart and Gunn that it was not a contempt at all; secondly, it was said, if it was a contempt, it was only a very little contempt; and, thirdly, and in any case, an apology. That is what I understand happened; but, whatever were the facts, the judge, Mr Justice Vaisey, clearly came to the conclusion that it was not a serious or grave contempt. He regarded it rather as an indiscretion which had the effect which the Defendants suggested than a deliberate disregard of the dignity of the Court and due process of the law. He therefore made an Order in this form: "The Plaintiff and the Respondents" - that is Stewart and Gunn - "by their Counsel apologizing and expressing their regret for writing-, publishing and procuring to be published the said article or item of news, this Court doth not think fit to make any Order on the motion but doth order that the Plaintiff and the Respondents do pay to the Defendants their costs of the said motion" such costs to be taxed by the Taxing Master as between solicitor and client".
The next step was that the Defendants brought in their bill for taxation pursuant to the Order. Among the items which they had disbursed and which they claimed to have paid to them by the terms of the Order by the Plaintiff and the two Respondents were two items of counsels' fees. The Defendants, as it appears, had thought it right (as, indeed, had the Plaintiff and the Respondents) to brief leading counsel upon the motion, and they briefed the leading counsel who had been retained by them for the purposes of the action. The items of fee paid to that leading counsel (who is, in fact, not the same leading counsel as appears in this Court) and the corresponding fees paid to junior counsel (who is, in fact, also not the same as the junior counsel who appears here) were the two items which were objected to as regards their amounts. The two items together amounted to a sum approximately of 500 guineas, 300 guineas to the leader and 200 guineas for the junior. The Taxing Master, having considered the objection to those items, reduced them for the purposes of the bill to two figures approximately equivalent to one-third. To that reduction the Defendants made objection and they set out their objections for the consideration of the Taxing Master. I need not read the objections as all the points have been made here by Mr. Wilberforce and Mr Warren.
The Taxing Master, however, in answer to those objections, stated as follows; "The Order made on this interlocutory motion was for payment by the Respondents of the Applicants' costs of the motion as between solicitor and client, which is the strictest of three bases of solicitor and client taxations". It will become plain later what was meant by that last remark: "The Order entitles the Applicants in effect to party and party costs, but on more generous lines. On this basis, after careful consideration and giving due weight to the importance of the case and applying the standard laid down in Order 65, Rule 27, sub rule 29 of the Supreme Court Rules, I am of opinion that one hundred guineas is a fair and adequate fee for leading counsel on this motion with junior counsel's fee in proportion", and he over-ruled the objections.
Thereupon, the Defendants applied by Summons to Mr Justice Danckwerts, and his Order made on the 15th January,1957, which is the Order now under appeal, said: "This Court being of opinion that on the taxation of the Defendants' costs under the Order dated 2nd March, 1956, the Plaintiff and the Respondents are liable to pay the whole of the Defendants' costs including the fees to Counsel referred to in the Objections numbered 3 and 4", which I have read, "doth Order that it be referred to the Taxing Master to review his taxation accordingly in respect of the said fees".
Mr. Justice Danckwerts gave reasons for his Judgment which we have considered. After referring to certain authorities to which I must later allude, he said this on page 4: "What is the nature of the present case? It is an application against a person who has been guilty of contempt of Court for, it may be, either their committal or attachment, and it is well established by a number of cases to which I have been referred that such a case is in the nature of a criminal information. It is the kind of application of which one has considerable experience in this Division, and it has been my experience that costs are not awarded against a respondent to such an application unless the Court is of the opinion that the respondent has been guilty of contempt and thus deserving of punishment, though it may be that he was not deserving of extreme punishment, such as committal to prison. When costs are awarded against such a respondent, as between solicitor and client, it is, as Mr Warren contended, because of the fact that the Court desires to show, first, its disapproval of the conduct of the respondent, and, secondly, that the application by the applicant is justified". Then the learned Judge went on to say that since the award of costs was of a punitive nature, and since it was intended that the Applicants, in this case the Defendants, should substantially be indemnified, the Taxing Master had erred in principle in applying to this taxation the general strict rule of solicitor and client taxation. The reference which Mr. Justice Danckwerts made to the nature of an application for committal of contempt of Court was a reference to many instances but no doubt included the case to which Mr. Wilberforce referred of Plating Company v. Farquharson, reported in 17 Chancery Division, page 49. That was an application for contempt of Court consisting of an alleged breach of an injunction. The matter Come before this Court and in the end the parties who were charged were absolved, the Court expressing views discouraging motions for committal where there really was not a case - the matter being one rather of public concern than of private right. As was pointed out by Mr. Wilberforce, it has been recently laid down that the public nature of an application to commit is such as requires the But I have referred to this case of Plating Company v. Farquhar son for a single sentence at the end of the report of Lord Justice James: "I think that costs as between solicitor and client may sometimes be given to the party moving" - that is the party moving the application for committal - "by way of indemnifying him, instead of committing the respondent, but I do not think they can be given to the respondent". Therefore, I do not doubt that in many cases where Orders of this kind are made it would be found that counsel moving the motion and perhaps the judge alike had it in mind that the Order would operate substantially by way of indemnity. I have no doubt what in many cases in fact it does so.
That brings me to the case of Giles v Randall, a decision of this Court in 1915, which, upon my readying of it and its effect, is really conclusive of this matter; for, as was there pointed out, the effect of the Rule (which seems to me inevitably and inescapably to apply in this case) may well be to defeat what in some cases and perhaps in this case has been at the back of the mind of either the party concerned or of the judge - though in view of another judgment of Mr. Justice Vaisey, to which both counsel have referred, I must not...
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...[2006] HKCU 480; mentioned Liverpool Victoria Insurance Company v. Zafar [2019] EWCA Civ. 392; mentioned Morgan v. Carmarthan Corpn [1957] Ch 455; considered Noorani v. Calver (No 2/Costs) EWHC (QB) 592; considered Phonographic Performance Limited v. Fletcher [2015] EWHC 2562;considered T......
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Landru et al. v. Inter City Contractors Ltd. et al., (1987) 59 Sask.R. 10 (QB)
...to no costs except such as that Order gives them under the Rules. It was held by the court of appeal in Morgan v. Carmarthen Corpn., [1957] Ch. 455; [1957] 2 W.L.R. 869; [1957] 2 All E.R. 232, at pp. 236-237, applying Giles v. Randall, [1915] 1 K.B. 290; 84 L.J.K.B. 786, that in such a cont......