Whitmore v O'Reilly

JurisdictionIreland
JudgeK. B. Div.
Judgment Date27 February 1906
CourtKing's Bench Division (Ireland)
Docket Number(1904. No. 14,870.)
Date27 February 1906
Whitmore
and
O'Reilly (1).

K. B. Div.

Appeal.

(1904. No. 14,870.)

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.

1906.

Costs — Trial by Judge without jury — Trivial action — Successful plaintiff ordered to pay costs — Discretion of Judge — Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict. c. 57), ss. 52, 53.

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 exercising 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 Kingstown, in the county of Dublin, against the defendant, who

resided in the city of Dublin, claiming £30 for damages sustained by the plaintiff through the injury and dilapidation of the premises, No. 17, Carysfort-avenue, Blackrock, county Dublin, held 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 agreement entered into by her as to the repair of said premises.

“7. The defendant denies the several acts and matters complained of in the statement of claim, respectively.

“8. The defendant did not commit the alleged or any waste.

“9. Prior to the acts and matters complained of the defendant had ceased to be tenant of said house, and had ceased to be either in occupation or possession of said house.

“10. The tenancy created by said agreement was determined by effluxion 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 certificate, to which I refer. I was of opinion that the action was one of 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, and, accordingly, I gave judgment for plaintiff for £1, with civil-bill costs, but directed him to pay defendant's general costs of the action, less by the sum of £1, and such civil-bill costs. See Registrar's certificate.”

The Registrar's certificate stated that the Judge found for the plaintiff on foot of the cause of action set forth in paragraph 1 of the statement of claim, with £1 damages, and with such costs as a decree for £1 would carry in the Civil Bill Court, and against the plaintiff on the cause of action set forth in paragraph 2 of the said statement of claim. It then set out the following order made by the Judge:—

“I order that the plaintiff do pay the defendant all her costs, when taxed and ascertained, incurred by her in this action, as I am of opinion that this action should have been brought in the Civil Bill Court, and was a quite unfit case to be tried in one of the Superior Courts, less by the £1 damages and costs awarded to the plaintiff as above stated.”

The plaintiff now moved that the judgment, certificate, or order made by Wright, J., should be varied by directing the defendant to pay the plaintiff half his costs of the action, and by directing the defendant to bear and pay her own costs thereof, on the grounds that the said judgment, certificate, or order was bad and erroneous in law, and was against evidence and the weight of evidence, and because the learned Judge misdirected himself upon the law, and because the learned Judge in depriving the plaintiff of his costs and in directing the plaintiff to pay the defendant's costs did not exercise a judicial discretion, nor exercise such discretion upon adequate materials, or upon materials properly before the Judge, nor upon matters and materials it was competent for the Judge to treat as grounds for the exercise of his discretion, but proceeded upon a wrong principle, and erroneously. The motion was stated to be grounded upon, inter alia, the Judge's notes.

There was a cross-motion by the defendant for liberty to enter up judgment against the plaintiff for her costs of the action, when taxed and ascertained, less the sum of £1, damages awarded to the plaintiff, and such costs as a decree for £1 would carry in the Civil Bill Court.

Hanbury Geoghegan, for the plaintiff:—

There were no materials before Wright, J., to justify him in depriving the plaintiff of costs, and ordering him to pay the defendant's costs. The discretion of the Judge as to costs is a judicial discretion, and must be exercised on adequate materials.

The only ground here alleged is the unfitness of the action for the Superior Court, by reason of its triviality. But that ease is provided for by Order LXV., Rule 3, under which the plaintiff here would be entitled to only half costs. To justify depriving a successful plaintiff of the whole of his costs, and a fortiori to justify an order that he should pay the unsuccessful defendant's costs, there must be something more than the mere smallness of the amount recovered.

The defendant here in her defence traversed the existence of a tenancy; Wright, J., decided that a tenancy existed. Therefore, over and above the damages recovered, a question of property was determined: a question involving the liability of the defendant for subsequent rent.

[He referred to Civil Service Co-operative Society v. General Steam Navigation Company (1); Granville v. Frith (2); Wilson v. M'Mains (3)].

William M'Grath, for the defendant:—

Wright, J., exercised his discretion as to the costs, and exercised it upon sufficient materials, therefore no appeal lies from his order: Judicature Act (Ireland), 1877, sect. 52; Harrison v. Ancketell (4); Kay & Co. v. Tighe (5). The Judge has power not only to refuse a successful party his costs, but to order him to pay the costs of the unsuccessful party: Harris v. Petherick (6); Fane v. Fane (7). Wilson v. M'Mains (3) was an action tried before a jury, and is therefore distinguishable.

Geoghegan, in reply, referred to Bew v. Bew (8); Lapsley v. Blee (9).

Cur. adv. vult.

The plaintiff brought an action against the defendant, his tenant under a 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...

To continue reading

Request your trial
11 cases
  • Ledwith v Ross
    • Ireland
    • Chancery Division (Ireland)
    • 1 Marzo 1910
    ...(1) [1897] 1 I. R. 295. (2) 1 Ch. D. 182. (3) 17 Ch. D. 746. (4) 9 App. Cas. 448. (5) [1908] A. C. 298. (6) [1895] 1 I. R. 328. (1) [1906] 2 I. R. 357. (2) [1899] 2 I. R. (1) [1906] 2 I. R. 357. d. m. s. (1) [1897] 1 I. R. 295. (1) [1897] 1 I. R. 295. (2) 24 L. R. Ir. 305. (3) [1898] 2 I. ......
  • Little v Dublin United Tramways Company and Another
    • Ireland
    • Supreme Court (Irish Free State)
    • 1 Enero 1931
    ...[1897] 2 I. R. 258, at p. 265. (1) [1907] 2 I. R. 437, at p. 452. (2) [1907] 1 K. B. 264. (3) [1914] 3 K. B. 181. (4) 21 S. J. 75. (5) [1906] 2 I. R. 357, at p. 393et (6) [1928] N. I. 54. (1) [1894] 1 Ch. 53, 450, (2) [1900] 1 Ch. 261. (3) [1914] 3 K. B. 181. (4) [1907] 1 K. B. 264. (1) [19......
  • Carol Collins v Minister for Justice, Equality and Law Reform and Others
    • Ireland
    • Court of Appeal (Ireland)
    • 19 Febrero 2015
    ...discretion of its own and substitute its own decision for that of the court in which the costs order was made: see Whitmore v. O'Reilly [1906] 2 I.R. 357, 399 per FitzGibbon L.J. 64 51. Having described this practice, Walsh J. then examined the circumstances in which the old Court of Appeal......
  • DPP v Bourke Waste Removal Ltd & Others
    • Ireland
    • High Court
    • 12 Marzo 2010
    ...stemmed from long established and well recognised precedent (Garnett v. Bradley [1878] 3 App. Cas. 944; Whitmore v. O'Reilly [1906] 2 I.R. 357). Since 1877, all such power is legislative dependent. 47 (ii) Under s. 53 and s. 65 of the Act of 1877, provision was made for the appropriate rule......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT