Perry v Stopher
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE WILLMER |
| Judgment Date | 09 March 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0309-1 |
| Court | Court of Appeal |
| Date | 09 March 1959 |
[1959] EWCA Civ J0309-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Morris and
Lord Justice Willmer
MR R.A.R. STROYAN (instructed by Mr. W. Timothy Donovan) appeared on behalf of the Appellant (Plaintiff).
MR M.R. HOARE (instructed by Mr. A. Rawlence) appeared on behalf of the Respondent (Defendant).
: This is an appeal from an Order of His Honour Judge Rice Jones dated the 31st July, 1958, by leave given by the learned County Court Judge, from his refusal to set aside the Award of an Arbitrator made under Section 89 of the County Court Act, 1934, which provides: "The judge may, with the consent of the parties to any proceedings, order the proceedings to be referred to arbitration (whether with or without other natters within the jurisdiction of the court in dispute between the parties) to such person or persons and in such manner and on such terms as he thinks Just and reasonable".
The second sub-section deals with revocation, and the third is as follows: "On any such reference the award of the arbitrator, arbitrators or umpire shall be entered as the judgment in the proceedings and shall be as binding and effectual to all intents as if given by the Judge: provided that the Judge may, if he thinks fit, on application made to him at the first court held after the expiration of one week after the entry of the award, set aside the award, or may, with the consent of the parties, revoke the reference or order another reference to be made in the manner aforesaid". I need not read the fourth sub-section.
This was an application to the Judge, not to set aside the whole of the Award, but only that part of the Award which dealt with costs, and it is to be observed, in passing, that the section under which these proceedings were taken only provides for setting aside an Award and does not add "or any part thereof; but the only question which we need consider is whether the learned Judge was right in law in taking the course he did take in refusing to set aside an Award containing, as is the submission of the Appellant, a judicial exercise of discretion about -rests.
The claim was a claim by the Plaintiff, who was a builder employed by the Defendant who carried out work on a house in Mitoham, the detailed work to which I need not refer. No estimate was given and the work was charged for on a time and material basis when finished, plus a profit to the Plaintiff. After the work had beer finished, the Defendant objected to the way in which some of the work had been done and put his own value on the work which had been properly done at £397, whereas the plaintiff sought to charge £455. The actual difference between the parties at the hearing amounted to £54, having been reduoed from £58.
The Defence raised a number of points, stated by the Arbitrator to be sixteen in number, claiming that the work was badly done by the Plaintiff, or not done, or not done to the Defendant's order. With regard to some of these matters the Plaintiff succeeded and with regard to others he failed and, although we know the number of matters on which the Plaintiff succeeded and on which he failed, we do not know how much time was spent over that part of the dispute on which the Plaintiff failed and how much over- that part on which he succeeded. The findings of the Arbitrator are set out in detail showing expressly what he found in this itemised claim, and at the conclusion, he awarded the Plaintiff £11. 14s. 2d. as against the £54 claimed, and then he did that which has provoked disagreement, he awarded the Defendant costs on Scale 3.
The discretion of the Arbitrator as to costs is to be exercised judicially in the same way as any other exercise of discretion. The proposition is stated In Russell on Arbitration, 6th edition, page 253: "The discretion must be exercised Judicially and it will be reviewed by the Court to the same extent as the Judge's order as to costs would be reviewed upon an appeal". In all cases where the exercise of discretion as to costs is concerned, the relevant authority is Donald Campbell v. Pollak (reported in 1937 Appeal Cases, page 732) where one of the matters emphasised by the House was that the discretion "must be exercised judicially and the Judge ought not to exercise his discretion against a successful party on grounds wholly unconnected with the cause of action", but so far as matters connected with the cause of action are concerned, the Tribunal has a discretion which is unfettered.
The submission in this case is, to me, the novel one that the order for costs being an unusual one, in the sense that the Plaintiff, having not wholly failed but partly succeeded, was ordered to pay the Defendant's costs, the Arbitrator should have stated a reason for so finding. I say at once that, in my judgment, there is no authority for such a submission at all.
I begin with Donald Campbell v. Pollak and the speech of Lord Atkinson, upon which the Appellant sought to rely, because I think the words of Lord Sterndale in Ritter v. Godfrey, quoted by Lord Atkinson in Donald Campbell v. Pollak, must have been very much in the mind of Lord Goddard in a case to which I shall refer later, which was the case principally relied upon by the Appellant. Lord Sterndale, in Ritter v. Godfrey, said this: But there is such a settled praotice of the Courts that in the absence of special circumstances a successful litigant should receive his costs, that it in necessary to show some ground for exercising discretion by refusing an Order whioh would give them to him. The discretion must be judicially exercised, and therefore there must be some ground for its exercise, for a discretion exercised on no ground cannot be judicial. If, however, there be any grounds, the question of whether they are sufficient is entirely for the Judge at the trial, and this Court cannot interfere with his discretion". I need not read any more of the citation, but will read the next sentence from Lord Atkinson's own words: "My Lords, I think this Judgment of Lord Sterndale contains a clear, condensed and accurate statement of the law and of the prevailing practice on the points with which It deals".
Before coming to Lord Goddard's case, I should like to refer to some later language of Lord Sterndale whloh he used after Donald Campbell v. Pollak had overruled the actual conclusion in Rltter v. Godfrey, but affirmed his expression as to costs. That is a case of Pitkin v. Sanders & Forster. Ltd. (reported in 1923, 128 Law Times, page 789), where Lord Sterndale used these words: "In this case, therefore, we have to see if the Judge had any grounds for the exercise which he made of his discretion; and if there were any grounds on which he could exercise his discretion in the way in which he did, we cannot interfere".
So far I do not think there is any language to be found in the cases which indicates that the Tribunal is required, before it exercises its discretion in a particular way, to state its reasons for so doing, even when it makes an unusual order as to costs, or an order as to costs which may appear to be unusual.
So far as the facts of this case are concerned, it is not such a clear case as one in which a Plaintiff wholly succeeds or wholly fails. It is a case of an itemised claim where, in the event, it can be said the Plaintiff has succeeded to a far less extent than the Defendant, but even assuming that it is a case in which an unexpected order was made, there is no justification, in my opinion, for the contention that it is necessary, in departing from the rule, for a Judge or an Arbitrator to say: "I am departing from the rule for" this, that or the other reason. The cases, I find, show that where in departing from the rule the Tribunal gives a reason which is wrong in law, or if it is shown on the face of the record that there was an error of law in the exercise of the discretion, an Appellate Court can interfere.
I come now to the case on which Mr. Stroyan relied, and in the end, really, almost solely relied upon, in support of his contention, Lewis v. Haverfordwest Rural District Council (reported in 1953, 2 All England Reports, at page 1599). There is a report, which appears to be a revised report, in the Weekly Law Reports and, perhaps, I should read from that, because the wording is slightly different. That was a case where, as one would expect, Donald Campbell v. Pollak was applied. It was a Special case stated by an Arbitrator. The Arbitrator made an Award assessing the compensation payable to an applicant, the tenant and occupier of a small holding at Haverfordwest, at £156 and awarded, further, that each party should bear its own costs, and the applicant moved for an order for the Award, in so far as it related to costs, to be set aside and that the Council should pay the applicant's costs.
Lord Goddard referred to a decision of Mr. Justice Diplock (to which I will refer) and he followed Donald Campbell v. Pollak. which re-affirmed what had been said in the Court of Appeal in Ritter v. Godfrey to the effect "that there is settled practice of the courts that in the absence of special circumstances a successful litigant should receive his costs and that it is necessary to show some grounds for exercising the discretion of refusing an order which would give them to him, and the discretion must be judicially exercised. Those words 'Judicially exercised are always somewhat difficult to apply, but they mean that the arbitrator must not act capriciously and must, if he is...
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