Ottway v Jones

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HODSON,LORD JUSTICE PARKER
Judgment Date25 May 1955
Judgment citation (vLex)[1955] EWCA Civ J0525-2
CourtCourt of Appeal
Date25 May 1955
Ottway
and
Jones

[1955] EWCA Civ J0525-2

Before

The Master of The Rolls (Sir Raymond Evershed)

Lord Justice Hodson and

Lord Justice Parker.

In The Supreme Court of Judicature

Court of Appeal

MR DESMOND VOWDEN (instructed by Messrs H.C.L Ranne & Co. appeared on behalf of the Appellant (Defendant).

MR HARRY LESTER (instructed by Messrs Thomas v. Edwards & Co.) appeared on behalf of the Respondent (Plaintiff).

THE MASTER OF THE ROLLS
1

This is an appeal, solely upon the question of costs, from a decision of a County Court Judge. Whereas under the Rules applicable to the Supreme Court it should require leave. prima facie, to appeal to the Court of Appeal an a question of costs only, that provision does not find a place in the County Court Rules. The relevant rule now is Order 47, Rule 1; "Subject to the provision of any Act or rule the costs of proceedings in a county court shall be in the discretion of the Court"; and then fellows a provide relating to executions,and the like, which has no application to the present case. There appears to be no provision in the present County Courts Act directed to this matter. It may, however, be relevant to observe that the provisions of the Judicature Act as to costs — which relate in terms to the Supreme Court — are found, inter alia, in section 50 of the Act of 1925: "Subject to the provisions of this Act and to Rules of Court and to the express provisions of any other Act, the costs of an incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent the costs are to be paid".

2

I have read that section as lending (as I think) some support to the view that, if regard is had only to the terms of Order 47, Rule 1, it would appear to rest entirely in the discretion of the County Court Judge by whom the costs of any proceeding should be paid, even though the person ordered to pay the costs had in substence or in fact wholly been successful a view which again, I think, is supported by the reasoning in the speeches in the House of Lords in the case of Donald Campbell & Co. Ltd v. Pollak, reported in 1927 Appeal Cases, at page 732 (see particularly the language of Lord Chancellor Cave at pages 811 and 812).

3

But although the terms of the Rule on the face of them sooner to put no limit upon the way in which, as to costs, a Judge exercion him diserection, there is I think no doubt that, in what I will call (and I wil latere defins what I mean by the phrase) the ordinary case, where there is a decision to the effect that a defendant has been wholly successful, it is not a proper judicial exercise of the discretion to order such a defendant to pay the plaintiff's costs. That the Judge may deprive the successful defendant of the costs which prima facie he would expect to recover is another matter. But decisions to which our attention has been drawn by Mr Vowden for theAppellant (of which the last one cited, Foster v. The Great Western Railway, in this Court, reported in 8 Queen's Bunch Division, at page 515, is an example) do I think undoubtedly establish as a general proposition, in what I have called the "ordinary" case, that it is not a good exercise of judicial discretion to order a sucessful defendant to pay the plaintiff's costs; so that such an Order would be one upon which an appeal in this Court would be entertained. Nevertheless, since the matter of costs is so much a matter of discretion it is equally true to say that the Court of Appeal will entertain appeals on matters of costs with great caution.

4

When Mr Vowden first opened this case it looked to me, I must confess, very much as though there had been here an error on the part of the learned County Court Judge in what I have called the judicial exercise of the powers vested in him for this was a case in which the Plaintiff sought an Order for possession of his premises which were in the occupation of the Defendant, admittedly having the protection of the Rent Acts; and the Plaintiff in the end of all failed to get the Order which he sought or indeed to get any relief such as he prayed against the Defendant. Nevertheless the Judge, Quite deliberately (because his attention was particularly drawn to the matter) ordered the Defendant to pay the costs of the unsuccessful Plaintiff.

5

I propose to read the whole of the note of the County Court Judge's Judgment with which we have been supplied because it states the facts of the case and also includes an expression of the Judge's grounds for making the Order as to costs which he did. The Judgment is as follows: "I find that the Plaintiff has become psychopathic about the activities of the Defendant not perhaps without reason -- and he sees an enemy under every bush. Almost anything annoys him and is a nuisance, so I have to take his evidence with great caution. But I am satisfied that were serious incidents on 2nd, 3rd May, 1953, and in June of 1954, i.e. drunkenness, bullying behaviourfrightening the Plaintiffs, and urinating, and unpardenable bullying behaviour over the shed. Also malicious teasing plaintiffs by turning off water. I think other incidents of water are quite unproved and are imaginary, and the objection to the fires and the dog are similar. Only those three incidents are proved to my satisfaction and are nuisance and annoyence. Defendant is a liar, and is not to be trusted at all. I find him a buly and that he did try (and successfully) to dominate the tenants but Plaintiff certainly provoked. As all three incidents long age not reasonable to order possession. Can't make suspended order for possession usefully. No order for possession, but as nuisance and annoyence established Defendant pay Plaintiffs costs Scale 2. Note, Mr Vowden asked me if my order as to costs was per incuriam, or did I mean it. I told him that I did mean it; that I had decided it was unreasonable to make an order because the three incidents which I considered serious were long age. But that I found his client had been a 'nuisance and annoynace', and that, had this been a claim analogous to an action for trespass and an injunction where damages could be given in lieu of an injunction", and then there appears (sic, in lieu of order for possession)", and then there appears which I am not quite sure that I follow, but it may be "secus, in lieu of an order for possession" — "then I would have awarded damages. I was satisfied that the case was made out sufficiently to carry costs, but in the circumstances it seemed to me the extremes penalty of eviction of the Defendant would be harsh".

6

To that narrative in the Judgment I only desire to add very little, but that little must, I think, be added. It will be apparent that the nature of the case which the Plaintiff not out to prove was that the Defendant had acted in such a way as to cause a nuisance and an annoyance. That is a references to the Frist Schedule of the Act of 1933, paragraph (b), "the tenant has been guilty of conduct which is a nuisance or annoyance to adjoing occupier, or has been convicted of using the premisesor allowing the premises to be used for an immoral or illegal surpose", etc.

7

The other matter which I must add is this. The case was eventually heard and Judgment pronounced in March of the present year. The proceedings had been begun a great deal earlier, the date on the Particulars of Claim being the 23rd, October, 1954. It will be appreciated that the last of the three episodes which the learned Judge mentioned and which he said constituted acts of nuisance or annoyance within paragraph (b) of the Schedule occurred in June, 1954. We were informed that the hearing of the case was, for one reason of another, postponed not for a reason for which the Plaintiff was in...

To continue reading

Request your trial
65 cases
  • Sagicor v Crawford Adjusters
    • Cayman Islands
    • Grand Court (Cayman Islands)
    • 9 December 2011
    ...119, followed. (2) Knight v. Clifton, [1971] 1 Ch. 700; [1971] 2 W.L.R. 564; [1971] 2 All E.R. 378, followed. (3) Ottway v. Jones, [1955] 1 W.L.R. 706; [1955] 2 All E.R. 585, followed. (4) Seepersad v. PersadUNK(2004), 64 W.I.R. 378; [2004] UKPC 19, followed. Legislation construed: Grand Co......
  • Adams v Commissioner of Police of the Metropolis
    • United Kingdom
    • Queen's Bench Division
    • Invalid date
  • Petroliam Nasional Berhad (Petronas) and Another v Cheah Kam Chiew
    • Malaysia
    • Supreme Court (Malaysia)
    • Invalid date
  • Bourne v Stanbridge
    • United Kingdom
    • Court of Appeal
    • 24 November 1964
    ...court shall be in the discretion of the court". 7 Lord Justice Salmon has drawn attention to some observations of Lord Justice Parker in Outway v. Jones, reported in Volume 2 of the 1955 All England Reports at page 585, where it is conveniently stated by the Lord Justice (as he then was): "......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT