Wyld v Silver
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE UPJOHN,MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE RUSSELL |
| Judgment Date | 12 July 1962 |
| Neutral Citation | [1962] EWCA Civ J0712-2 |
| Judgment citation (vLex) | [1962] EWCA Civ J0507-1 |
| Date | 12 July 1962 |
| Court | Court of Appeal |
[1962] EWCA Civ J0507-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls (Lord Denning)
Lord Justice Upjohn and
Lord Justice Russell
Mr Oliver Lodge (instructed by Messrs Jaques & Co., Agents for Messrs Barrett & Thompson. Slough) appeared as Counsel for the Applicant.
Mr D. S. Chetwood (instructed by Messrs Gillhams, Agents for Messrs Boyes. Turner & Burrows. Staines) appeared as Counsel for the Respondent.
THE MASTER OF THE ROLLS. The plaintiffs are four Inhabitants of Wraysbury who brought an action against the defendant. Mr Silver, claiming that there was a common law right in the Inhabitants of claiming bury to hold a fair or wake on a piece of land in the parish and that Mr Silver, who was proposing to build on it, ought to be restrained. They succeeded in the action before Mr Justice Lloyd-Jacob. A declaration was made in their favour that there was an annual right to such a fair and Mr Silver was ordered to pay their costs. The costs have not yet been taxed but it is estimated that they will come to some £1,500. Mr Silver, the defendant. is appealing from that decision and he has now obtained a Legal Aid Certificate enabling him to conduct the proceedings in this Court with the assistance of the Legal Aid Fund. He has been ordered to make a maximum contribution to the Legal Aid Fund of £207.10s. Od., of which he has paid £200 and he has to pay another £7.l0s. Od. by monthly instalments.
The plaintiffs now apply to this Court asking that Mr Silver should be ordered to give security for their costs. They point out that he has said that he is poor, that the payment of the costs in the Court below will absorb his resources and he will have nothing left. So the plaintiffs ask this Court to exercise its jurisdiction to order security where the appellant is, owing to poverty, likely to be unable to pay the costs of the respondents. There is no doubt that there is a prima facie case for security and the real question is: What is the Impact of the Legal Aid Act
It was long ago held in this Court in Conway v. George Wimpey & Co. Ltd. (1951. 1 All England Reports. p. 56) that when an assisted person comes to this Court with a Legal Aid Certificate. In the ordinary way an order for security for costs is not to be made against him. It is the policy of the legislature that no person should be deprived of the right to come to this Court by reason of lack of means. if he has not got the meansthen the State will assist him in a two-fold way, on the one hand It assists bin by the State paying the costs incurred on his own side) and on the other hand it assists him by ensuring that he is not liable to pay the other aide's coats, at any rate, not liable beyond a sum which it la reasonable for him to pay, And as often as not It is not reasonable for the Court to order him to pay anything, seeing that he has no means with which to pay. Even if the Court should make an order against him. it does not as a rule allow it to be enforced unless It is satisfied he has the means to pay. It has been said forcibly that this is very hard on respondents to an appeal. For it means that, if they are able successfully to resist the appeal, nevertheless they will have to bear their own costs in this Courts for there is little hope of getting the costs from the assisted person. It is indeed hard on a successful respondent. But there it is. It is often hard for an unassisted person, on his own resources, to have to face an assisted person backed by the State. But nevertheless that is the policy or. the legislature as It stands at the moment, and we must give effect to it. In the ordinary way an order for security for costs is not made against an assisted person: for the simple reason that, even if he loses, he cannot be ordered to pay costs beyond a reasonable sums and as it is ordinarily not reasonable to order him to pay anything, he cannot ordinarily be made to give security for anything.
Although that is the ordinary rule, it is not an absolute rule. The Act itself contemplated in Section 12(2) (b)(ii) that regulations should be made so as to make provision "as to the cases in which and the extent to which a person receiving legal aid nay be required to give security for costs". Although no regulations have yet been made. It does show that circumstances may well exist in which security should be ordered against an assisted person. If this Court can arrive at a sum which is a reasonable one for him to put up. having regard toall the circumstances, without thereby depriving him of his appeal, then It is right that this Court should order him to give security for that sum. We think that this is such a ease. It is to be noted that on the Legal Aid Certificate the appellant's disposable capital is put at £323 and the maximum contribution ordered is £207.10s. Od. In all the circumstances of this case, it is my opinion that, although he is a legally aided person, an order for security should he made, and the order which I suggest is that the sum of £100 security for costs should be provided in order to prosecute this appeal.
I agree.
LORD JUSTICE RUSSELL. I agree. It would not be right to say that security for the costs of an appeal should never be ordered against a legally assisted appellant. The Statute Itself envisages the possibility. On the other hand. it would not be right to make an order for a sum which would have the effect of debarring a legally aided person from pursuing an appeal which the appropriate Legal Aid Committee considers is reasonable.
I agree in this case that the proper sum is £100.
| Order: Security for costs to be provided in the sum of £100 within fourteen days. Costs of the application to be costs in the appeal. |
[1962] EWCA Civ J0712-2
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Lloyd-Jacob
The Master of The Rolls (Lord Denning)
Lord Justice Harman and
Lord Justice Russell
MR H. E. FRANCIS, Q. C. and MR D. S. CHETWOOD (Instructed by Messrs Gillhams, Agents for Messrs Boyes, Turner & Burrows, Stainos) appeared as Counsel for the Appellant.
MR E. I. GOULDING, Q. C. and MR OLIVER LODGE (instructed by Messrs Jaques & Co., Agents for Messrs Barrett & Thomson, Sbugh) appeared as Counsel for the Respondents.
In the 18th Century the inhabitants of the village of Wraysbury in Buckinghamshiro had a right by ancient usage to hold a fair or wake on the waste lands of the parish. It is so recorded in an Act of Parliament. This fair or wake was hold on the Friday in Whitsun week in every year. It had its origin, no doubt, in the vigil which used to be hold on the eve of a festival in the church. The fair was a gathering of buyers and sellers, The wakw was the merry-making which wont with it. There can be no doubt that this right of the inhabitants was a customary right to which the Courts would give effect, see Hall v. Nottingham (1875) I Ex. D. 1. It was part of the local law which could not be got rid of by abandonment or disuse, but only by Act of Parliament, see H Ammerton v. Honey (1876) 24. W. R., 603,
In 1799 the parish of Wraysbury, like so many parishes in England, became the subject of an Inclosure Act and in 1803 the Inclosure Commissioners made their Award/ Under it the waste lands of the parish were enclosed by fencos and allotted to individual owners. But special provision was made by the Act and the Award so as to preserve the right of the Inhabitants to hold their fair or wake. The Commissioner sot out and appointed a piece of land specially for the purpose: and the Act itself onacted that upon it the inhabitants "shall for over hereafter have the same right to hold such fair or wake annually". This seems to mo to confer a statutory right on the inhabitants: and the former right by custom became merged in the higher title conferred by Parliament, see Mow Windsor Corporation v. Taylor 1899 A. C. It, too, was part of the local law; and just as the customary rights could not be got rid of except by Act of Parliament, nor could this now statutory right.
The piece of land so set out by the Commissioners was nearly six acres in extent. It was all pasture, near to the church and Manor House, and it occupied an island site bounded byroads and a water course. The ownership of the soil of these six acres of The Green was allotted, as to four and a half acres to Joseph Adkins, three quarters of an aero to James Herbert, and three quarters of an aaere to Samuel Mills: but they took it subject to the right of the inhabitants to hold the fair or wake wake on it: and on this account the Commissioners made duo compensation to the theru by allotting them a bigger quantity than they otherwise would have done. Special provision was made to ensure that those six acres were kept as upon ground suitable for the fair or wake to bee hold upon it. It was enactedenacted by the Act and repeated in the Award that "no person or persons whomsoever 51 was to have any right to dig gravel, remove soil, oroc a building or lay any filth on it. This prohibition seems to mo to apply to the owners of the land as well as everyone else. It still loaves it op-n to the owners to use it as pasture for animals. It was described as pasture in the Award of 1803 and no doubt the Commissioners contemplated that it would always be used as such. It was called The green, as are so many village greens in England, simply because it was grassy land on which the inhabitants have a right to disport themselves.
During these last 16 years things have changed. There has not been a fair or wake on Whit Friday in the village during this...
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