Stratford (J. T.) & Son Ltd v Lindley (No. 2)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE WINN,LORD JUSTICE CROSS |
| Judgment Date | 14 July 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J0714-1 |
| Date | 14 July 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J0714-1
The Master of The Rolls (Lord Denning),
Lord Justice Winn and
Lord Justice Cross.
In The Supreme Court of Judicature
Court of Appeal
Appeals by defendants and plaintiffs against order of Mr. Justice Chapman dated 21st May, 1969.
Mr. ALAN R. CAMPBELL, Q.C., and Mr. ROBERT JOHNSON (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the plaintiffs.
Mr. PETER PAIN, Q.C., and Mr. STANLEY WALDMAN (instructed by Messrs. W.H. Thompson) appeared on behalf of the defendants.
There was an important case in 1964 called Stratford v. Lindley, now reported in 1965 A.C. at page 269. A watermen's union had a dispute with Stratford & Son Ltd. about recognition of the union. Some of the union officials placed an embargo on Stratford's barges. It was likely to injure Stratford's business irreparably. Stratfords brought an action against the union officials, Mr. Lindley and others, seeking an injunction to restrain them from enforcing the embargo. Mr. Justice Marshall granted an interim injunction against the union officials. He made the costs before him "costs in the cause". The union officials appealed. This Court allowed the appeal and awarded the union officials the "costs" of the appeal "in any event". Stratfords appealed to the House of Lords. The House allowed the appeal. They granted an interim injunction. Stratfords asked for the costs in any event in the House of Lords and in the Court of Appeal. But the House of Lords, after considering the matter, made an order that the costs in the House of Lords and in the Court of Appeal were to be "costs in the cause ", just as the costs before Mr. Justice Marshall were. So all the costs of the interlocutory proceedings were "costs in the cause".
There is no definition in any law book of the words "costs in the cause". But every pupil on his first day in chambers is told what it means. "Costs in the cause" means that the costs of those interlocutory proceedings are to be awarded according to the final award of costs in the action. If the plaintiff wins and gets an order for his costs, he gets those interlocutory costs as part of his costs of the action against the defendant. Vice versa, if the defendant wins and gets an order for his costs, he gets those interlocutory costs as part of his costs of the action against the plaintiff. (I may add in parenthesis that "plaintiff's costs in the cause" means that if the plaintiff wins, he gets the costs of the interlocutory proceedings: but, if heloses, he does not have to pay the other side's costs of them. "Plaintiff's costs in any event" means that, no matter who wins or loses, when the case is decided, or settled, the plaintiff is to have the costs of those interlocutory proceedings. "Plaintiff's costs" means that the plaintiff is to have the costs of the interlocutory proceedings without waiting for a decision.)
This action has never come for trial. No costs have ever been awarded in the action. Nobody has lost. Nobody has won. After the decision in the House, there were a few desultory steps. The pleadings were closed in November 1964. But then the action went to sleep. In 1966 there were discussions as to what was to be done. Negotiations took place but they were of no avail. Neither side wanted to go on. But neither side wanted to pay the costs of the other side.
In order to bring the matter to a head, the defendants, because of the long delay, took out a summons to dismiss the action for want of prosecution. They asked for all the costs to be paid by the plaintiffs to the defendants. The plaintiffs took out a cross summons. They asked for leave to discontinue the action upon the terms that the defendants should pay the plaintiff's costs, or such other order as might be proper. The two summonses came before the Master and then to the Judge. Now there is an appeal to this Court.
It is plain that neither side wishes to go on with the action so as to get his own costs. But neither side wishes to pay the other side's costs. Each will fight rather than pay the other side's costs. So what is to be done? Is this case to go on simply about costs? I think not.
On the one hand, the defendants apply to dismiss the action under Order 25, rule 1(5), which says that; ".…. on an applicably the defendant to dismiss the action …… the Court may either dismiss the action on such terms as may be just, or deal with the application as if it were a summons for direction's. Thedefendants say if the plaintiffs do not go on with the action, it ought to be dismissed with costs; and this will include all the "costs in the caused", so the plaintiffs will have to pay them all. On the other hand, the plaintiffs seek leave to discontinue under Order 21, rule 3, which says that: "—- a party may not discontinue an action.…. without leave of the Court…… and the...
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Walker v Walker and Another
...trial against a defendant who, on the figures, would be unlikely to meet any costs that were awarded. So that, in contrast to Stratford & Son Ltd v Lindley, this is not a case where, if the claimant is refused leave to discontinue on the terms which he seeks, he will simply go on with t......
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...2 All E.R. 251, C.A. Stotesbury v. Turner [1943] K.B. 370. Stratford (J.T.) & Son Ltd. v. Lindley (No. 2) [1969] 1 W.L.R. 1547; [1969] 3 All E.R. 1122, Walker v. Wilsher (1889) 23 Q.B.D. 335, C.A. No additional cases were cited in argument. MOTIONS By writ and notice of motion dated Mar......
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