Whitmore v O'Reilly

JurisdictionIreland
CourtKing's Bench Division (Ireland)
Docket Number(1904. No. 14,870.)
Date27 February 1906

WHITMORE
and

O'REILLY
(1904. No. 14,870.)

K. B. Div.

Appeal

Costs — Trial by Judge without jury — Trivial action —— Discretion of Judge —

Andrew v. Foster's CaseELR 8 Q. B. D. 515.

Andrew v. GroveELR [1902] 1 K. B. 625.

Barnes v. MaltbyUNK 5 Times L. R. 207.

Bew v. BewELR [1899] 2 Ch. 467.

Bew v.BewELR [1899] 2 Ch. 467.

Bostock's CaseELR [1900] 2 Q. B. 616, at p. 621

Bostock's CaseELR [1900] 2 Q. B. at p. 621

Bostock's CaseELR [1900] 2 Q. B. 616.

Brown v. RyeELR L. R. 17 Eq. 343.

Civil Service Co-operative Society v. General Steam Navigation Co.ELR [1903] 2 Q. B. 756.

Civil Service Co-operative Society v. General Steam Navigation CompanyELR [1903] 2 K. B. 756.

Civil Service Co-operative Society, Limited, v. General Steam Navigation CompanyELR [1903] 2 K. B. at p. 765.

Collins v. WelchELR 5 C. P. D. 27 (C. A.).

Cooper v. WhittinghamELR 15 Ch. D. 501.

Cooth v. Jackson 6 Ves. 41.

Crozier v. DowsettELR 31 Ch. D. 67.

Fane v. FaneELR 13 Ch. D. 228.

Florence v. MallinsonUNK 65 L. T. (N. S.) 354.

Forster v. FarquharELR [1893] 1 Q. B. 564.

Foster v. Great Western Railway Co.ELR 8 Q. B. D. 515.

Games v. Bonnor 54 L. J. Ch. (N. S.) 517.

Garnett v. Bradley 3 A. C. 944, at p. 953

Garnett v. Bradley 3 A. C. 944.

Garnett v. Bradley 3 A. C. at p. 956.

Gauls v. Bonner 54 L. J. Ch. (N. S.) 517.

Granville v. Erith 72 L. J. (N. S.) K. B. 152.

Hannay v. GrahamUNK 12 L. R. IR. 413.

Harris v. PetherickELR 4 Q. B. D. 611.

Harrison v. AncketellDLTR 39 Ir. L. T. R. 241.

Huxley v. West London Extension Railway Co.ELR 17 Q. B. D. 373.

Huxley's Case 14 A. C. at p. 35.

Huxley's Case 14 A. C. 26.

In King & Co. v. Gillard & Co.ELR [1905] 2 Ch. 7.

Jones v. CurlingELR 13 Q. B. D. 262.

Jones v. CurlingELR [13 Q. B. D. at p. 271.

Kay & Co. v. TigheUNK 18 L. R. Ir. 40.

Kay v. TigheUNK 18 L. R. Ir. 40.

King v. GillardELR [1905] 2 Ch. 7.

Lapsley v. BleeUNK 6 L. R. Ir. 155.

Llanover v. HomfreyELR 19 Ch. D. at p. 232.

Lyons v. PeacockUNK 12 L. R. Ir. 148.

MacGregor v. ClayUNK 4 Times L. R. 715.

MacGregor v. Clay Ibid. 715.

Moore v. GillUNK 4 Times L. R. 738.

Moore v. Gill Ibid. 738.

Moore v. Gill Ibid. 783.

Myers v. Financial NewsUNK 5 Times L. R. 42.

Owen v. GriffithsENR 1 Ves. Sen. 249.

O'Connor's CaseUNK 68 L. T. (N. S.) 146.

Reg. v. Bishop of LondonELR 24 Q. B. D. 213.

Reg. v. WoodlockUNK 12 L. R. Ir. 178.

Robert v. JonesELR [1891] 2 Q. B. 194, at p. 196.

Roberts v. JonesELR [1891] 2 Q. B. 194.

Rooke v. CzarnikowUNK 4 Times L. R. 669.

Scott v. BennettELR L. R. 5 H. L. 234-245.

Simons v. M'AdamsELR L. R. 6 Eq. 324.

The City of ManchesterELR 5 P. D. 221.

The City of ManchesterELR 5 P. D. at p. 222.

Tidwell v. ArielENR 3 Madd. 409.

Walsh v. SpillaneDLTR 37 Ir. L. T. R. 231.

Walton v. QuilterENR 11 M. & W. 760.

Willey v. Great Northern Railway Co.ELR [1891] 2 Q. B. at p. 207.

Williams v. Ward 55 L. J. (N. S.) Q. B. 566.

Wilson v. M'MainsUNK 20 L. R. Ir. 582.

Wilson v. M'MainsUNK 20 L. R. Ir. 582, 590.

Wilson v. Rastall 4 T. R. at P. 757.

Wirdman v. Kent 1 Brown's Ch. Cases, 140.

Young v. ThomasELR [1892] 2 Ch. 134.

Vol.. II.) KING'S BENCH DIVISION. 357, S. B. Div. 1905. (1904. No. 14,870.) Nov. 27. 1906. Costs—Trial by Judge without jury —Trivial action—Successful plaintiff Jan. 27. ordered to pay costs—Discretion of Judge—Supreme Court of Judicature Act (Ireland), 1877 (40 4- 41 Yid. c. 57), ss. 52, 53. Appeal. Feb. 16, 17, The plaintiff brought an action against the defendant, his tenant under a 19, 27. yearly tenancy, for breaches of agreement to keep the demised premises in repair, claiming £30 damages. The defendant in her defence, in addition to traversing the alleged breaches, denied the alleged agreement, denied that she had ever been tenant of plaintiff, and further alleged that the tenancy had been determined by notice to quit before the matters complained of. The action was tried by a Judge without a jury, and at the trial the plaintiff's own estimate of his loss was from £5 to £6. The Judge assessed the damages at £1. He gave judgment for the plaintiff for that amount, with such costs as a decree for £1 would carry in the County Court, and made an order that the plaintiff should pay the defendant's costs of the action less £1 damages and such civil-bill costs as above mentioned, on the ground, as alleged in the order, that the action should have been brought in the Civil-bill Court and was quite unfit to be tried in the Superior Courts. The Judge, in his report, further stated that he was of opinion that the action was one of the most trivial and insignificant that could possibly be brought ; that the plaintiff's own estimate of his loss was grossly exaggerated ; that he considered it wrong and an abuse to bring such an action in the Superior Courts : and that the plaintiff should pay the penalty of the extra costs thereby occasioned. The plaintiff having moved to have the order varied by directing the defendant to pay plaintiff half his costs of the action, and directing defendant to bear her own costs thereof : Held, in the King's Bench Division, by Lord O'Brien, L.C.J., and Boyd, J. (Johnson and Gibson, JJ., diss.), and held, by the Court of Appeal, that there were materials before the Judge at the trial sufficient to justify him in exerÂcising his discretion of ordering the plaintiff to pay the defendant's costs, and that his order in this respect was not subject to review. MOTION to vary an order of Wright, J., made on trial of action. The action was brought by the plaintiff, who resided at Kings town, in the county of Dublin, against the defendant, who (1) In the King's Bench Division, before LORD O'BRIEN, L.C.J., and JOHNSON, GIBSON, and Born, JJ. 190 6—Voi. II. 2 .F t58 THE IRISH REPORTS. [1906. B. Div. resided in the city of Dublin, claiming £30 for damages sustained 1905. by the plaintiff through the injury and dilapidation of the pre WHITMORE mises, No. 17, Carysfort-avenue, Blackrock, county Dublin, held v. O'REILLY. from plaintiff by defendant as tenant from year to year, caused by the neglect and default of the defendant. The first paragraph of the statement of claim alleged that the plaintiff had suffered damage from breaches by the defendant of her agreement with the plaintiff, under which she had been tenant to the plaintiff, or his predecessors in title, of the house in question, upon the terms that she should keep the said house during the tenancy thereof in tenantable repair. The particulars of the breaches, as set out in the statement of claim, were that the windows of the house in front and back had been broken, and the premises damaged by trespassers, through defendant's neglect in leaving the premises open and derelict, and that a paling had been bodily removed, viz. a wooden paling which was erected at the back of the house and permanently fixed into walls and into the ground. In the alternative, the plaintiff, in the second paragraph of the statement of claim, claimed damages for waste in respect of the same matters. The statement of defence was as follows : " 1. There was no agreement between the plaintiff, or his predecessor in title, and the defendant, as in paragraph 1 alleged, or at all. " 2. It was not a term of the said agreement that the defendant should keep the house in tenantable repair. " 3. The defendant is not, and never was, tenant to the plaintiff on a tenancy from year to year, or any tenancy. " 4. The defendant at all times during the tenancy kept the house in tenantable repair. " 5. The house was not during the tenancy out of such repair as was required by the agreement under which defendant held the said house. " 6. The defendant during the tenancy observed the agreeÂment entered into by her as to the repair of said premises. " 7. The defendant denies the several acts and matters comÂplained of in the statement of claim, respectively. " 8. The defendant did not commit the alleged or any waste. `Vol,. II.] KING'S BENCH DIVISION. 359 " 9. Prior to the acts and matters complained of the defendant K. 1903. in tad ceased to be tenant of said house, and had ceasedto be either TMORE WHI in occupation or possession of said house. v. " 10. The tenancy created by said agreement was determined O'REILLY. by effiuxion of time. " 11. The tenancies referred to in paragraphs 1 and 2, and each of them, were determined by notice to quit before the acts and matters complained of." The plaintiff joined issue on the statement of defence. The action was tried by Wright, J., without a jury on the 17th May, 1905. The report of the learned Judge, after stating the nature of the action, proceeded as follows : " The evidence was to the effect that defendant had been tenant of the house to plaintiff for some years, but left towards the end of .September, 1904, because she complained that the plaintiff would not put the roof into proper repair so as to keep out the rain, and that a few panes of glass had been broken, some before and some -after she left, and part of the old paling, valued at a few shillings, had disappeared, having been probably taken away by people in the neighbourhood. This was all the damage alleged or of which any evidence was given. " I assessed the damage done at £1, and gave judgment for that amount with civil-bill costs, and made a further order as to the general costs of the action, as appears by the Registrar's certiÂficate, to which I refer. I was of opinion that the action was one Apf the most trivial and insignificant that could possibly be brought, and that it should never have been commenced by writ in the ,Superior Courts. Plaintiff's own estimate of his loss on all claims was only £5 to £6, and this figure was, in my opinion, greatly exaggerated. I considered that it was wrong and an abuse to bring such an action in the Superior Courts, and that the plaintiff should pay the penalty of the extra costs thereby occasioned...

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