Stumm v Dixon & Company
| Jurisdiction | England & Wales |
| Court | Court of Appeal |
| Year | 1888 |
| Date | 1888 |
Practice - Costs - Taxation - Joint Defendants in Action of Tort - Defendant severing in Pleading - Judgment against both Defendants with Costs - Liability of Defendants for Costs of Separate Pleading - Order LXV., r. 1.
In an action of tort against two defendants they pleaded jointly payment into court only. The plaintiff replied, denying the sufficiency of the payment. One of the defendants then obtained leave to amend his statement of defence, and added an alternative separate defence, denying any liability to the plaintiff. At the trial a verdict was found against both defendants for an amount beyond the sum paid into court, and judgment was entered for the plaintiff for that amount, with costs to be taxed:—
Held, by Lord Esher, M.R., affirming the judgment of the Queen's Bench Division, that the defendant who delivered the separate defence was alone liable for the costs occasioned to the plaintiff by and in consequence of the separate pleading, and that the other defendant was not liable for those costs.
By Fry, L.J., dissenting, that both defendants were jointly and severally liable for all the costs of the action.
APPEAL against a decision of a Divisional Court (Lord Coleridge, C.J., and Manisty, J.).F1
The action was brought for a tort against two defendants, Dixon & Co. and Knight. At first the defendants pleaded jointly payment into court, and no other defence.
The plaintiff replied, denying the sufficiency of the payment.
Dixon & Co. afterwards obtained leave to amend their defence, and they then added as an alternative defence a denial of any liability to the plaintiff. The defendant Knight's defence was not altered.
The action was referred to an official referee for trial, and he found a verdict against both defendants for 130&L damages beyond the amount paid into court, and directed judgment to be entered for the plaintiff against both defendants for 130l. and costs.
Judgment was accordingly entered for 130l. and costs to be taxed. The master, on taxing the costs, held that Knight was not liable for the costs occasioned to the plaintiff by and in consequence of Dixon & Co.'s amended pleading, but that Dixon & Co. were alone liable to pay those costs.
The Divisional Court affirmed the decision.
The plaintiff appealed.
Jan. 11. Le Riche, for the plaintiff. The settled practice is that, when there is one judgment against two defendants, it carries all the costs against them both. There is no apportionment of the costs: Real and Personal Advance Company v. McCarthyF2; Lemaitre v. DavisF3; Twinberrow v. BraidF4; Poole v. FranksF5; Michel v. BullenF6; Johnson v. MillsF7; Betts v. De VitreF8; Heatley v. Newton.F9
J. G. Witt, for the defendant Knight. There is no authority directly in point, but, if the Court thinks this is a reasonable and just mode of taxing the costs, the onus is on those who assert that there is a rigid rule to the contrary. If the argument for the plaintiff is right, it would follow that, if the plaintiff in an action against two defendants was unsuccessful as against one of them, both defendants would be entitled to costs from the plaintiff. The order is manifestly just, and there is no practice to the contrary which binds this Court.
Le Riche, in reply.
Feb. 4. LORD ESHER, M.R. (His Lordship stated the facts as above, and continued:-) The question is whether, when an action in respect of a wrongful act is brought against two defendants, and they both defend the action, but one of them (the other not being able to interfere with him in any way), puts a defence on the record wholly and solely on his own account — a defence which can have no effect whatever either in favour of or against the other defendant — and by so doing occasions costs to the plaintiff, — whether the plaintiff, under a judgment against both the defendants, can recover against the other defendant the costs thus occasioned by the act of the one defendant without the authority of the other. I cannot help saying that to compel the other defendant to pay those costs would be absolutely contrary to natural justice. The question is, whether it is in accordance with the law. I think these two propositions may be laid down: (1) that, unless we are forced by paramount authority to hold that it is law, nothing which is contrary to natural justice can...
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