Keating v Storey

• Jurisdiction: Ireland
• Judgment Date: 18 November 1910
• Date: 18 November 1910
• Court: King's Bench Division (Ireland)

Keating

and

Storey (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1911.

Practice — Costs — Plaintiff and defendant within same civil bill jurisdiction — Judgment for less than £20 “with costs” — Duty of Taxing-Master to determine question of residence.

Plaintiff, in an action of contract, set forth in his writ that the defendant resided in London, and applied for and obtained an order to serve the writ upon the latter out of the jurisdiction. Upon such service the defendant, by his solicitor, entered an appearance, without prejudice to a notice of motion to remit. At the trial the plaintiff obtained a verdict for £18 17s. 6d., and judgment was accordingly entered for him for that amount with costs. Upon the taxation of costs the defendant submitted that the order only gave to the plaintiff such costs, if any, as he was by law entitled to, and tendered to the Taxing-Master an affidavit for the purpose of showing that the defendant had a residence within the same civil bill jurisdiction, and that therefore the plaintiff was not entitled to any costs. The Taxing-Master refusing to receive such affidavit or to consider the question of residence, on the ground that he was bound by the terms of the judgment to tax and give to the plaintiff half the costs—

Held, that such judgment with costs only entitled the plaintiff to such costs as were legally recoverable by him under the General Orders.

That where the amount of such costs, if any, depends on the fact of residence, this fact, which is not in issue at the trial, should be determined on affidavit by the Taxing-Master, with a right of appeal to the King's Bench Division.

Reynolds V. Enfield Cycle Co. (3 N. I. J. R. 205) followed.

Motion by defendant under General Order LXV., Rule 66 (3), to review the taxation of the plaintiff's costs.

The plaintiff, who carries on business as a cycle merchant at Lower Abbey Street, Dublin, issued a writ in the High Court of Justice in Ireland, against the defendant, to recover a sum of £31 10s. 11d. for goods supplied and work and labour done. The defendant had resided in Dublin, but, for some time previous to the issue of the writ aforesaid, his letters to the plaintiff had been addressed from 18 Berkeley Road, Crouch End, London;

and, in an affidavit resisting the present motion, the plaintiff swore that, prior to certain letters from the defendant, dated respectively 23rd July, 1908, 28th July, 1908, and 10th August, 1908, the defendant, in conversation, had informed him that he was going to reside permanently in England. Plaintiff further swore that in December, 1909, he applied for liberty to issue and serve a writ out of the jurisdiction, and that prior to such application he had made inquiries and could not find that the defendant had any residence in this country, but that he had resided in England, and that the defendant was...