Taylor v Roe

JurisdictionEngland & Wales
Date1893
Year1893
CourtChancery Division
[CHANCERY DIVISION] TAYLOR v. ROE. [1882 T. 2489.] 1893 Dec. 5, 13. STIRLING, J.

Costs - Taxation - Interlocutory Order directing Payment of Costs - Non-payment - Interest as from Date of Order - Judgments Act, 1838 (1 & 2 Vict. c. 110), ss. 17, 18, 20 - Rules of Supreme Court, 1883, Order XLII., rr. 14, 16.

An interlocutory order directing the payment of costs by one person to another comes within sect. 18 of the Judgments Act, 1838, and carries interest on the costs thereby awarded as from the date of such order.

THIS was a summons taken out by the Plaintiff to review the decision of the Taxing Master, and raising the question whether the Plaintiff was entitled to interest on the certified amount of the costs payable by the Defendant to him under certain interlocutory orders made in the action.

The action was brought for an account of certain paintings and drawings sold by the Defendant as agent for the Plaintiff.

The material facts as appearing from the Plaintiff's objections to the taxation, and the Taxing Master's answers thereto, were as follows: —

Under an order of the 22nd of August, 1884, a writ of attachment was, upon motion by the Plaintiff, ordered to issue against the Defendant for non-compliance with a previous order (not the judgment in the action) directing further and better accounts, and the Defendant was ordered to pay to the Plaintiff his costs of the motion and attachment. These costs were taxed and certified on the 23rd of December, 1884, at £35.

Under another order dated the 18th of December, 1884, upon motion by the Plaintiff, a receiver was appointed of certain paintings, &c., and the Defendant was ordered to pay to the Plaintiff his costs of the motion. These costs were taxed and certified on the 24th of April, 1885, at £29 12s. 8d. A writ of fieri facias was issued at the instance of the Plaintiff to obtain payment of these costs, but without success.

Under orders of the 21st of May, 1885, and the 3rd of June, 1885, certain other costs were payable by the Defendant to the Plaintiff, but they had only then been brought in for taxation.

Under an order of the 20th of January, 1893, the Plaintiff had to pay to the Defendant the costs of another, but unsuccessful, motion, and by an order dated the 27th of January, 1893, it was ordered that in taxing the costs of the Defendant under the order of the 20th of January, 1893, directed to be paid by the Plaintiff to the Defendant, the Taxing Master should have regard to the £35 taxed costs certified in his certificate of taxation, dated the 23rd of December, 1884, and to the £29 12s. 8d. taxed costs certified in his certificate dated the 24th of April, 1885, and to the costs to be taxed under the orders dated the 21st of May, 1885, and the 3rd of June, 1885 (all which costs were directed to be paid by the Defendant to the Plaintiff), and any interest properly payable in respect thereof, and should set off the same and certify the balance due from the Plaintiff to the Defendant, or from the Defendant to the Plaintiff as the case might be, and in case such balance was certified to be due to the Plaintiff, then the Plaintiff was to be at liberty to issue a writ or writs of sequestration against the Defendant for the same.

The Plaintiff claimed interest on the £35 and £29 12s. 8d. certified costs, as from the dates of the orders under which those costs were taxed. The Taxing Master disallowed the claim. It was admitted that the order did not determine the question, but left it to be decided upon taxation. The Taxing Master in his answers to the objections stated as follows: “The Plaintiff relies on 1 & 2 Vict. c. 110, ss. 17 and 18F1, and Order XLII. of the Rules of the Supreme Court, 1883, r. 16. The Act has been in operation for more than half a century, but I am not referred to, nor have I been able to find, an authority for the proposition that costs such as these carry interest, nor is there any practice to support the claim to interest. I do not read Order XLII., r. 16, as giving a right to interest where independently of the rule interest could not be claimed, so I do not think the rule helps the Plaintiff.”

Then, after referring to and distinguishing certain cases, he stated as follows: “In this absence of authority in the Plaintiff's favour, upon what must be a question of daily occurrence, and in view of the settled practice to the contrary, I am unable to take upon myself to allow interest on these interlocutory costs, and so I overrule the objections.”

Fossett Loch, for the summons: —

The Taxing Master ought to have allowed interest upon these costs as from the date of the orders by which payment was directed: 1 & 2 Vict. c. 110, ss. 17, 18.

Under that Act it was the practice of the Courts of Common Law to allow interest from the date of entering up the judgment; the Chancery Courts, on the other hand, only allowed it from the date of the Taxing Master's certificate.

That, however, is now altered, and interest on costs in all cases runs from the date of the judgment: Order XLII., rules 14, 16, of the Rules of Supreme Court, 1883, and Forms, Appendix H; Boswell v. CoaksF2; Pyman v. BurtF3. In the Act 1 & 2 Vict. c. 110, no distinction is drawn between final and interlocutory orders. Such a distinction has, no doubt, been drawn in cases under the Bankruptcy Act, 1883; but, in the absence of any such distinction in the original Act, those cases are not material: Ex parte MooreF4; Ex parte AlexanderF5; In re RiddellF6. There does not appear to be any authority in which the question of interest on costs of an interlocutory order has been raised. The reason for such absence of authority may be that formerly the costs of such orders were directed to be taxed at once, the practice of keeping the taxation open until final order being of recent growth. In In re Bird's EstateF7, and Eardley v. KnightF8, which appear to be...

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16 cases
  • Re B. (J. A.) (an Infant)
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    ... ... 1118F ) ... Taylor v. Roe [ 1893 ] W.N. 14 followed ... (4) That, on the facts, W. was guilty of contempt in respect of which a committal order should be made; that, it being a criminal contempt, the committal should be not for an indefinite period but for a fixed term; and that, in the circumstances, and in ... ...
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    ...knows all about it, and indeed attends the hearing of the motion, makes no difference. In the same way, as is shown by Taylor v Roe [1893] WN 14.” (footnotes included) (emphasis added) 195 . In light of the high constitutional value placed on the liberty of the person, a court ought not gen......
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