The Postmaster-General v Great Southern and Western Railway Company

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 28 January 1916
• Court: Chancery Division (Ireland)
• Date: 28 January 1916

The Postmaster-General

and

Great Southern and Western Railway Company.

M. R.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1916.

Costs — Crown — Postmaster-General — Liability of Postmaster-General to pay Costs in Proceedings under the Telegraph Act, 1878 (41 & 42 Vict. c. 76), s. 11 — Purposes for which Postmaster-General is a Body Corporate.

In proceedings taken by the Postmaster-General under s. 11 of the Telegraph Act, 1878, costs may be awarded against him if unsuccessful.

The purposes for which the Postmaster-General is constituted a body corporate considered.

The action was brought in this case by the Postmaster-General, claiming maintenance rates for maintaining certain block signal telegraphs and wires on a section of the defendants' railway, alleged to be due under an agreement, dated the 27th June, 1883, and made between the defendants and the Postmaster-General. The Master of the Rolls having dismissed the action, the question was now argued as to whether or not he had jurisdiction to award costs against the Postmaster-General.

A. W. Samuels K.C. (with him Monroe, for A. P. I. Samuels, serving with His Majesty's forces), for the plaintiff:—

The Court has no power to order the Postmaster-General, who sues in his official capacity for the Crown, to pay costs in this case. Section 11 of the Telegraph Act, 1878 (41 & 42 Vict. c. 76), enables the Postmaster-General to institute legal proceedings for any of the purposes of the Telegraph Acts in his own name and to recover any sum due to him under the Telegraph Acts as a debt in any court, and in any manner in which it might be recovered if it were a debt due to a private person; but this section does not provide that he may be sued, nor that he should be liable to pay costs. In Dublin County Council v. Postmaster-General (1) a preliminary objection was taken that the Postmaster-General

could not be sued except by petition of right. The King's Bench Division held that sect. 6 of the Telegraph Act, 1868 (31 & 32 Vict. c. 110), which authorized any person to enforce any Act of Parliament, charter, grant, deed, or agreement made to, from, or by any telegraph company whose undertaking was purchased by the Postmaster-General under that Act, by action, suit, or other legal proceeding against the Postmaster-General in the same court, and in the same manner and with the same rights and liability to pay costs and otherwise as if that Act had not been passed, applied to the purchase by the Postmaster-General from the National Telephone Co., Ltd., and that the Postmaster-General could be sued in that case, as the agreements under which the county council claimed had been made with the Telephone Co., and he was ordered to pay costs, but only on the ground that sect. 6 of the Telegraph Act, 1868, authorized that particular action; and Palles C.B. in the course of his judgment laid down that the Postmaster-General could not be sued under sect. 11 of the Telegraph Act, 1878, though he could sue.

The Court of Appeal affirmed the order of the King's Bench Division, refusing to stay the action on a preliminary motion. The Court of Appeal left all question of jurisdiction to be decided on the hearing of the action, and declined to make any order as to costs of the motion, as that would have had the effect of deciding the question of jurisdiction. The action was afterwards tried by Dodd J. (1), but was dismissed upon other grounds, and the Postmaster-General waived the question of costs. The judgments on the preliminary question are not reported. Section 6 of the Telegraph Act, 1868, has only a limited application to companies whose undertakings were purchased under the Telegraph Acts of 1868 and 1869, and does not apply here. Section 3 of the Telegraph Act, 1869 (32 & 33 Vict. c. 73), defines the meaning in the Telegraph Acts of the term “telegraph company.” In Bainbridge v. Postmaster-General (2) the position of the Postmaster-General under the Telegraph Acts was considered, and it was held that his immunity is not altered by these Acts; that he is only incorporated for special purposes, and is not incorporated

for the purpose of being sued, and, except under the special section referred to, the Postmaster-General cannot be sued either in contract or tort.

The Crown Suits Act, 1855 (18 & 19 Vict. c. 90), does not apply to the present case. It is confined to suits where the Attorney-General sues to recover lands, goods, or money, in suits by him on behalf of the Crown, i.e., in revenue cases: Reg. v. Beadle (1); Secretary for War v. Booth (2). The preamble recites that the object of the Act was to assimilate the law as to recovery of costs in proceedings instituted by or on behalf of the Crown in matters relating to the Revenue to that in force as to proceedings between subject and subject. In Madden's Estate (3) Holmes L.J. says that it seems to be now settled that in certain proceedings the Crown, although it cannot be ordered to pay costs, may be awarded costs by virtue of a well-known rule of equity. In that case an attempt was made to apply the Crown Suits Act to a claim made in the Land Judge's Court by the Commissioners of Woods and Forests, but Reg. v. Beadle (1) was followed. In The Postmaster-General v. Green (4) costs on a higher scale were given to the Postmaster-General in an action in the City of London Court, to recover the sum of 3s. 6d. due in respect of a telegraph message. An appeal to the Court of Appeal was dismissed without costs, but it is not stated in the report that there was any argument as to costs. In The King (Postmaster-General) v. Great Northern Railway Co. (5), a mandamus case, the Court of Appeal followed the rule laid down in Madden's Estate (3), that the Crown will not be allowed costs in cases in which if unsuccessful the Crown would not be liable for costs.

In Johnson v. Rex (6) the Privy Council stated that they would adhere to the practice of the House of Lords, and that in future the rule should be that the Crown should neither pay nor receive costs unless the case was governed by some local statute, or there were exceptional circumstances justifying a departure from the ordinary rule. A note has been

obtained by the Postmaster-General for departmental purposes of the argument as to costs in the House of Lords in The Postmaster-General v. The National Telephone Company (1), and it appears that Lord Halsbury denied that there was any such settled practice. The decision as to costs, however, turned to a great extent upon what had passed in correspondence between the parties.

The Postmaster-General sues here under section 11 of the Telegraph Act, 1878, on behalf of the Crown, and in the absence of a statutory obligation making him liable he cannot be made pay costs.

FitzGibbon K.C. (with him, Poole), for the defendants:—

Reg. v. Beadle (2) and Dublin County Council v. The Postmaster-General (3) do not affect the case. The Postmaster-General is not the Crown, nor does he sue by the Attorney-General. The present case falls within the third head mentioned in Johnson v. Rex (4), at p. 824, viz., where the Crown, or the Postmaster-General on its behalf, has adopted the position of an ordinary litigant. The defendants rely on section 11 of the Telegraph Act, 1878, which provides that the Postmaster-General may recover a sum of money as if it was a debt due to a private person. That applies here, as the agreement on which the action is brought refers to the Telegraph Acts, 1868, 1869, and the Postmaster-General sues under the power given by section 11. There is no need to contend that the Postmaster-General would be liable to account. In The Dublin County Council v. Postmaster-General (3), Palles C.B. said that the Postmaster-General could not be sued, but a counter-claim for an account would come within the provisions of the Judicature Act which enable the Court to give relief to a defendant. The defendant could surely set off. [The Master of the Rolls:—If the Postmaster-General had got judgment in this case, would it be a Crown debt?] It is a debt

due to the Crown, but is recoverable by the Postmaster-General as if he was a private person. [Samuels K.C. mentioned In re Behan, A Bankrupt (1).] Bainbridge v. Postmaster-General (2) is not in point here; it is not suggested that the Postmaster-General is liable for the acts of his servants. The case of Postmaster-General v. National Telephone Company, of which a print has been produced (3), is an authority for the proposition that the Postmaster-General can be made pay costs. [He referred to the argument in the Court of Appeal in that case (4).] The Court of Appeal gave costs against the Postmaster-General. The decision of the Court of Appeal, on the merits, was reversed by the House of Lords; but there is nothing to show that they thought that the Court of Appeal had no jurisdiction to give costs against the Postmaster-General, and the House of Lords gave costs to him as he succeeded. In the unreported case of The Postmaster-General v. Great Southern and Western Railway Gibson J. evidently considered that the Postmaster-General could be made pay costs if he was unsuccessful. It is contended that there are no funds to pay costs here, but that point was disposed of in Wheeler v. Commissioners of Public Works (5). There are no express words in the Act of 1878 binding the Crown, but section 11 is a procedure enactment giving power to the Postmaster-General to sue as an ordinary litigant; and if he adopts that method of procedure he incurs the ordinary litigant's liability to pay costs. It may be that the Statute of Limitations could not be pleaded to a claim by the Postmaster-General, but that is not a procedure statute. The Judicature Act does not bind the Crown; but here the Postmaster-General is not the Crown.

Samuels K.C., in reply.

Cur. adv. vult.

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