CHAPTER XV.

COSTS.

If an action of libel or slander be tried by a jury, the costs will follow the event, unless the judge before whom such action is tried or the Court" shall for good cause otherwise order." (Order LXV. r. 1.) If by any chance such an action be tried by a judge alone, the costs are wholly in his discretion. Section 116 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), does not apply to actions of libel or slander; for no such action can be brought in the County Court, except by consent (ss. 56, 64).

There is one exception to the above general rule. By section 1 of the Slander of Women Act, 1891, in any action for words spoken and made actionable by that Act, "a plaintiff shall not recover more costs than damages, unless the judge shall certify that there was reasonable ground for bringing the action."

Section 5 of the County Courts Act, 1867, applied to all actions, whether they could be brought in the County Court or not; the words of the Act being wider than the Legislature intended. Formerly also the provisions of Lord Denman's Act (3 & 4 Vict. c. 24), s. 2, applied to actions of libel and slander, and therefore a plaintiff who recovered less than 40s. damages could not recover any costs whatever from the defendant, unless the judge immediately certified on the record that the libel or slander was wilful and malicious. And even if the judge certified both that the action was one fit to be tried in the Superior Court and also that the slander was wilful and malicious, so as to take the case out of both the County Courts Act and Lord Denman's Act, still no certificate could enable a plaintiff to get more costs than damages, if he sued for a slander actionable per se, and recovered less than 40s. For the statute 21 Jac. I. c. 16, contained no proviso enabling a judge

to make any exemption from the imperative rule that a plaintiff suing on the case for slanderous words, and recovering less than 40s., shall have "only so much costs as the damages so given or assessed amount unto" (s. 6). This statute was held to apply only to words actionable per se, and not to actions of libel, of slander of title, of scandalum magnatum, or where the words are actionable only by reason of special damage alleged. But now the 21 Jac. I. c. 16, s. 6, and the 3 & 4 Vict. c. 24, s. 2, and the County Courts Act, 1867, are all repealed. (See s. 33 of the Judicature Act, 1875; Parsons v. Tinling, 2 C. P. D. 119; 46 L. J. C. P. 230; 25 W. R. 255; 35 L. T. 851; Garnett v. Bradley, 3 App. Cas. 944; 48 L. J. Ex. 186; 26 W. R. 698; 39 L. T. 261; Ex parte Mercers' Co., 10 Ch. D. 481; 48 L. J. Ch. 384; 27 W. R. 424.)

A rule similar to Order LXV. r. 1 prevails in the Salford Hundred Court of Record (Turner v. Heyland, 4 C. P. D. 432; 48 L. J. C. P. 535; 41 L. T. 556); in the Liverpool Court of Passage (King v. Hawkesworth, 4 Q. B. D. 371; 48 L. J. Q. B. 484; 27 W. R. 660; 41 L. T. 411); in most Borough Courts; and also in Ireland. (Cassidy v. O'Loghlen, 4 L. R. Ir. 1, 731.) But in the Mayor's Court, London, the judge has an unfettered jurisdiction over costs. (Hall v. Launspach, (1898) 1 Q. B. 513; 67 L. J. Q. B. 372; 78 L. T. 243.)

The power given to the judge by s. 5 of the Law of Libel Amendment Act, 1888, to make an order apportioning the costs, when two or more actions of libel have been consolidated under that section, in no way interferes with or affects the general rule that where a case is tried by a jury, the costs shall follow the event, unless the judge shall for good cause otherwise order. (Per Charles, J., in Hopley v. Williams, 53 J. P. 822.) The provisions of the Public Authorities Protection Act, 1893, which entitle the defendants in certain events to costs as between solicitor and client, do not restrict the power of the judge for good cause to deprive the successful party of his costs. (Bostock v. Ramsey U. D. C., (1900) 2 Q. B. 616; 69 L. J. Q. B. 945; 48 W. R. 254; 83 L. T. 358.)

Hence, now, if a plaintiff recovers nominal damages for words which were actionable at common law, he will get his costs, unless the judge or a Court otherwise orders. As soon therefore as the verdict is given, the defendant's counsel must at once apply to the judge to make an order depriving the plaintiff of his costs. As a rule, such an

order will only be made where "contemptuous" damages, such as a farthing or a shilling, have been given, and not always then. There must be some "good cause," beside the smallness of the damages, to give the judge jurisdiction. to make such an order; something either in the conduct of the parties or in the facts of the case which, in spite of the finding of the jury, makes it more just that the costs should not follow the event.

If the judge thinks fit to make an order, that order is not necessarily that each party should pay his own costs. He may for very good cause order that the successful plaintiff shall pay the defendant's costs as well as his own (per Bramwell, L.J., 15 Ch. D. at p. 41; and see Myers v. The Financial News, (1888) 5 Times L. R. 42); and where there has been a new trial the judge who tries the case the second time may, in the absence of any special order by the Court of Appeal, order that the successful plaintiff shall pay the whole costs of both trials. (Harris v. Petherick, 4 Q. B. D. 611; 48 L. J. Q. B. 521; 28 W. R. 11; 41 L. T. 146.) But of course such an order would only be made in an extreme case, and where the plaintiff has grossly misconducted himself. (See Norman v. Johnson, 29 Beav. 77.) A successful defendant may also be deprived of his costs (Sutcliffe v. Smith, (1886) 2 Times L. R. 881; Bostock v. Ramsey U. D. C., (1900) 2 Q. B. 616; 69 L. J. Q. B. 945 ; 48 W. R. 254; 83 L. T. 358), if there be good cause (Granville & Co. v. Firth, (1903) 72 L. J. K. B. 152; 88 L. T. 9). But he cannot be made to pay the whole costs of the action under any circumstances. (Dicks v. Yates, 18 Ch. D. 76, 85; 50 L. J. Ch. 809; 44 L. T. 660; Re Foster v. Great Western Ry. Co., 8 Q. B. D. at pp. 521, 522; 30 W. R. 398; Andrew v. Grove, (1902) 1 K. B. 625; 71 L. J. K. B. 439; 50 W. R. 524; 86 L. T. 720.)

What is "good cause" for making an order that costs shall not follow the event? "No nearer and no closer definition can be given than that there will be good cause, whenever it is fair and

just as between the parties that" such an order should be made. (Per cur. in Forster v. Farquhar, (1893) 1 Q. B. at p. 567.) "The facts must show the existence of something, having regard either to the conduct of the parties or to the facts of the case, which makes it more just that an exceptional order should be made than that the case should be left to the ordinary course of taxation." (Per Brett, M.R., in Jones v. Curling, 13 Q. B. D. at p. 268.) "The mere fact of a plaintiff, in an action for libel or slander, recovering only a farthing or a shilling damages is not of itself good cause for depriving him of costs. Good cause' must be something more than the mere smallness of damages. The smallness of the damages, however, is an important element to be considered, if there are any other circumstances which can be taken into account." (Per A. L. Smith, L.J., in O'Connor v. The Star Newspaper Co., Ltd., 68 L. T. at p. 148.) "Where a plaintiff comes to enforce a legal right, and there has been no misconduct on his part-no omission or neglect which would induce the Court to deprive him of his costs the Court has no discretion, and cannot take away the plaintiff's right to costs. There may be misconduct of many sorts; for instance, there may be misconduct in commencing the proceedings, or some miscarriage in the procedure, or an oppressive or vexatious mode of conducting the proceedings, or other misconduct which will induce the Court to refuse costs; but where there is nothing of the kind the rule is plain and well settled, and is as I have stated it." (Per Jessel, M.R., in Cooper v. Whittingham, 15 Ch. D. at p. 504; cited with approval by Brett, M.R., in Jones v. Curling, 13 Q. B. D. at pp. 265, 268, and again in O'Connor v. The Star, 68 L. T. at p. 147, as "a good working rule, though not an exhaustive one.") "Good cause' really seems to me to mean that there must exist facts which might reasonably lead the judge to think that the rule of the costs following the event would not produce justice as complete as the exceptional order which he himself could make. Now, to ascertain the existence of such facts, the judge should look in the first place at the result of the action itself, namely, the verdict of the jury, and he should look also at the conduct of the parties to see whether either of them had in any way involved the other unnecessarily in the expense of litigation, and beyond that he should consider all the facts of the case so far as no particular fact was concluded by the finding of the jury." (Per Bowen, L.J., in Jones v. Curling, 13 Q. B. D. at p. 272.) "Everything which increases the litigation and the costs, and which places upon the defendant a burden which he ought not to

bear in the course of that litigation, is perfectly good cause for depriving the plaintiff of his costs." (Per Lord Halsbury, L.C., in Huxley v. West London Extension Ry. Co., 14 App. Cas. at p. 32.) The words "good cause" embrace "everything for which the party is responsible connected with the institution or conduct of the suit, and calculated to occasion unnecessary litigation and expense." (Per Lord Watson, ib., at p. 33.) "The judge is not confined to the consideration of the defendants' conduct in the actual litigation itself, but may also take into consideration matters which led up to and were the occasion of that litigation." (Per A. L. Smith, L.J., in Bostock v. Ramsey U. D. C., (1900) 2 Q. B. at p. 622.) "First, in determining whether good cause exists, the judge must accept the verdict as conclusive upon all matters of fact necessarily involved in it, however much he may personally dissent from the finding of the jury. So long, however, as the judge does not base his decision upon matter inconsistent with the verdict, all other matters outside the verdict are open for his consideration. Everything which led to the action, every circumstance tending to show that the plaintiff was blamable in bringing it, everything reflecting upon the conduct of the parties in the course of the litigation itself (Harnett v. Vise, 5 Ex. D. 307, see per James, L.J., pp. 310, 312); and the judge is under no obligation to give effect to any special reasons or views the jury may have entertained or expressed in giving their verdict-such, for instance, as a hope or recommendation that it may or may not carry costs, unless such views accord with his own; nor is the amount of damages awarded to be taken as a conclusive test upon the question of good cause,' though it properly forms an element for consideration. . Should the jury, in an action for an assault or libel, award the plaintiff an ignominious compensation, it would not follow that as of course the judge ought to deprive him of his costs, although he might treat it as an indication of the opinion of the jury, in which he coincided, that the character of the plaintiff was worthless, and that the action never ought to have been brought, and was therefore oppressive." (Per Hawkins, J., in Roberts v. Jones and Willey v. Great Northern Ry. Co., (1891) 2 Q. B. at pp. 197, 198.)

Illustrations.

Where an action of libel was brought on a private letter written by a lady to an intimate friend, and shown only to the plaintiff and two others, and the plaintiff's own conduct had given rise to the suspicions entertained by the writer, and the jury gave a verdict for 107. damages: Huddleston, B., made an order