Grimes and Others v Owners of SS. "Bangor Bay"

• Jurisdiction: Ireland
• Judgment Date: 01 January 1949
• Date: 01 January 1949
• Docket Number: (1945—No. 346 P.)
• Court: Supreme Court

Grimes and Others v. Owners of S.S. Bangor Bay.

THOMAS GRIMES, PATRICK BURKE and AUSTIN MALONE (an infant suing by his father and next friend, JOHN MALONE)

Appellants

and

OWNERS OF THE S.S. BANGOR BAY

Respondents.

(1945—No. 346 P.)

Supreme Court.

Practice - Admiralty action - Action brought in the High Court - Plaintiffs recovering less than £300 - Costs - Scale of costs appropriate - Whether action could have been commenced in the Circuit Court - Jurisdiction of the Circuit Court - Courts of Justice Act, 1924 (No. 10 of 1924), ss. 48and 51.

The plaintiffs brought separate actions against the defendants for wages, bonuses and costs and for damages for breach of contract or, in the alternative, for damages for wrongful dismissal, under the Admiralty jurisdiction of the High Court. The actions, which were subsequently consolidated, were settled by consent, and the consent was made a rule of Court. The consent provided that each of the three plaintiffs should receive £60, together with costs when taxed and ascertained. The Taxing Master taxed the costs on the High Court scale. On a motion to review this taxation:

Held by Overend J. that the action being founded on contract was one which could have been commenced in the Circuit Court and s. 12, sub-s. 1 (c) of the Courts of Justice Act, 1936 applied. Accordingly, the Taxing Master was directed to review the taxation upon the basis of the Circuit Court scale appropriate to a decree for £180. The plaintiffs appealed.

Held by the Supreme Court (Maguire C.J., Murnaghan, Geoghegan and O'Byrne JJ.; Black J. dissenting) reversing Overend J., that the action as framed could not have been brought in the Circuit Court as that Court has no general jurisdiction in Admiralty.

The appeal was, accordingly, allowed and the order of Overend J. discharged.

Motion to review taxation.

The following statement of the facts is taken from the judgment of O'Byrne J.

"On the 31st July, 1945, separate actions were instituted by the three plaintiffs against the owners of the steamship Bangor Bay, otherwise known as the Kerry Coast, for wages, bonuses and costs and for damages for breach of contract or, in the alternative, for damages for wrongful dismissal. All the actions were brought under the Admiralty jurisdiction of the High Court and the procedure appropriate to proceedings under such jurisdiction was strictly followed. By order, dated the 22nd October, 1945, the three actions were consolidated and it was ordered that they should proceed to trial as one action. After certain further proceedings to which it is unnecessary to refer in detail, a consent was entered into between the parties and was made a rule of Court by order, dated the 29th November, 1945. The consent provided that each of the plaintiffs should accept the sum of £60 in full settlement of his claim and that the defendants should pay the plaintiffs' costs, when taxed and ascertained. By the said order, it was referred to the Taxing Master to tax the said costs.

The costs having been taxed on the High Court scale, an objection thereto was lodged by the defendants. The objection reads as follows:—

'The plaintiffs having recovered sums within the jurisdiction of the Circuit Court the plaintiffs, in the absence of special certificates under the provisions of section 12 of the Courts of Justice Act, 1936, are only entitled to Circuit Court Costs.'

Notwithstanding this objection, the Taxing Master adhered to his previous taxation and so reported to the High Court."

From this decision the plaintiffs appealed to the Supreme Court (1).

Overend J. (1):—

The law has been very fully gone into in this matter and although considerable doubts arise I do not think they affect my decision.

The action is brought by men who say that they were seamen. It is brought on a contract of service, but the plaintiffs were not signed on as seamen.

Sect. 12 of the Courts of Justice Act, 1936, is perfectly general. It contains nothing about the jurisdiction of any particular Court although it mentions one or two specific causes of action, and sub-s. 1 (c) provides:—"In any action founded on contract (other than actions for the recovery of a liquidated sum) or for damages for breach of contract (other than for breach of promise of marriage), where the amount recovered by the plaintiff does not exceed three hundred pounds the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the action had been brought in the Circuit Court unless the judge hearing such action grants a special certificate under this section:"

Sub-s. 2 provides:—"In any action referred to in the next preceding sub-section of this section in relation to which the grant of a special certificate by the judge is

mentioned, the judge hearing such action may, on the application of the plaintiff, grant a special certificate in writing that, in the opinion of such judge, it was reasonable, owing to the substantial or important nature of the action or the importance of any question of law involved therein that the action should have been commenced in the High Court."

It would be quite impossible to give such a certificate in this case.

Sub-s. 3 goes on:—"It shall not be lawful for rules of court"—(and rules of court have the force of a statute)—"to contain or impose any restriction on the amount of costs recoverable by any party from any other party in any action or other proceeding, but nothing in this sub-section shall prevent the insertion in rules of court of a restriction on the amount of costs recoverable which is identical with a restriction imposed by this section, nor the fixing by rules of court of the amount recoverable by any person as and for the costs and expenses incurred by him in the doing of any specified thing in any particular form of action or other proceeding."

By s. 12, as I think, it was taken out of the power of the Court to interfere with the amount of costs recoverable except in specific cases and on the specific grounds mentioned in sub-s. 2. The power to interfere has been taken out of the hands of the Court. I never saw a section that went so far. In my opinion it has put it out of my power to give a certificate and it applies to all forms of action.

Accordingly, I must direct the Master that, in my opinion, the consent provides for whatever is the correct amount of costs recoverable in these proceedings and I think that the matter is governed by s. 12, sub-s. 1 (c) of the Courts of Justice Act, 1936, and he should tax the costs accordingly.

I am treating the case as a consolidated action for £180. The defendants are to have their costs on this basis.

Cur. adv. vult.

Maguire C.J. :—

I have had an opportunity of reading the judgment which Mr. Justice O'Byrne will deliver. I agree with it and I have nothing to add.

Murnaghan J. :—

I also agree with the judgment of Mr. Justice O'Byrne.

Geoghegan J. :—

I also agree.

O'Byrne J. :—

This is an appeal against an order of the High Court (Mr. Justice Overend), dated the 8th November, 1946, directing the Taxing Master to review his taxation of the plaintiffs' costs in this consolidated action.

[His Lordship then set out the facts as already stated.]

On appeal to the High Court against the taxation, Mr. Justice Overend allowed the appeal and directed the Taxing Master to review the taxation, the learned judge being of opinion and so declaring that the costs awarded to the plaintiffs are subject to and regulated by paragraph (c)of sub-s. 1 of s. 12 of the Courts of Justice Act, 1936, and the order directed the Taxing Master to review the taxation upon the basis of the total amount recovered by the plaintiffs in the consolidated action. This is the order against which the present appeal is taken.

Sect. 12 of the Courts of Justice Act, 1936, contains provisions limiting the amount of costs recoverable by plaintiffs in certain actions commenced and heard in the High Court. The material provision on which the matter was disposed of in the High Court is that contained in clause (c) of sub-s. 1 which provides that in any action founded on contract (other than actions for the recovery of a liquidated sum) or for damages for breach of contract (other than for breach of promise of marriage), where the amount recovered by the plaintiff does not exceed three hundred pounds, the plaintiff shall not be entitled to recover more costs than he would have been entitled to recover if the action had been brought in the Circuit Court, unless the judge hearing such action grants a special certificate under the section. The latter portion of this provision may be disregarded as there was no such certificate in this case. It will be noticed that the plaintiff is not entitled to recover more costs than he would be entitled to recover if the action had been brought in the Circuit Court. The concluding...