By section 49 of the Judicature Act, 1873, no order made CHAPTER XX. by the High Court of Justice or any judge thereof, by the Appeal as to consent of parties, or as to costs only, which by law are left to costs. the discretion of the court, shall be subject to any appeal, except by leave of the court or judge making such order. It has been held that this section is directory only, and not prohibitory, so far as relates to actions, &c., tried before a single judge. And where an action has been tried with a Order deprivjury, a Divisional Court has power in its discretion, co- ing successful ordinate with that of the judge at the trial, to make an order to deprive a successful party of his costs. But no court should act on that power except on the consideration that some fact exists, amounting to "good cause," to induce the court to supersede the general presumption in favour of the successful party (d). party of costs. what is. "Good cause" embraces everything for which the party is "Good cause," responsible connected with the institution or conduct of the action, and calculated to occasion unnecessary litigation and expense. An order made by the judge depriving a plaintiff of costs is final, if made on considerations such as those above stated; but is subject to appeal if made on grounds which do not constitute good cause (e). In exercising the jurisdiction given by the R. S. C. to deprive a successful party of costs, on "good cause" shown, the judge may consider, not only the plaintiff's conduct during the litigation, but also his conduct in connection with the circumstances which conduced to the action being brought. And although he may dissent from the verdict, he must not overrule the finding of the jury on the facts. And so, in an action to recover damages for a libel contained in a private letter, the jury found a verdict for the plaintiff, with £10 damages and the judge, on the application of defendant's counsel, and on the ground that the plaintiff's own conduct had led to the libel being written, gave the plaintiff judgment for the damages, but without any costs: and the judgment was approved and upheld by the Court of Appeal (ƒ). It appears, therefore, by the Judicature Acts and Rules above stated, and the effect given to them by the decision of (d) Myers v. Defries and others, 4 Ex. D. 176; 48 L. J. 446; Siddons v. Lawrence, Ibid., and see Bowey v. Bell, 4 Q. B. D. 95; 48 L. J. Q. B. D. 161; Brooks v. Israel, Ibid.; North v. F.S. Bilton, Ibid. (e) 14 App. Cas. 26; 58 L. J. Q. B. D. 305. (f) Harnett v. Vise and wife, 5 Ex. D. 307; 29 W. R. 7. Y CHAPTER XX. the House of Lords in the case of Garnett v. Bradley and subsequent cases, that the prior enactments as to costs, if not expressly repealed, are virtually so; and the court and judge have now an almost absolute discretion as to costs. But the law, as it was prior to the Judicature Acts, will still apply in some cases, in the absence of any order to the contrary by the court, or judge at the trial. Costs under the County Courts Acts. Costs where several issues. By the "County Courts Act, 1888 " (g), with respect to any action brought in the High Court, which could have been commenced in a county court; if in an action founded on tort, the plaintiff recover a sum less than £10, he shall not be entitled to any costs of the action; and, if he recover a sum of £10 or upwards, but less than £20, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county court; unless in any such action, a judge of the High Court certifies that there was sufficient reason for bringing the action in that court, or unless the High Court, or a judge thereof at Chambers, shall by order allow costs. The corresponding section of the County Courts Act, 1867 (h) (since repealed), has been held to apply to actions of slander, though they cannot be commenced in a County Court (i), and the latter circumstance is to be taken into consideration by the court or a judge in exercising their discretion under that section (k). And where, in an action for slanderous words uttered by the female defendant, commenced and tried in a superior court, a verdict was found for the plaintiff for £10, and the judge refused to certify: On an application to the court for costs, it was held, that, assuming the section to apply to cases in which the County Court had no jurisdiction, as the plaintiff had recovered an amount much beyond what would have entitled him to costs under the general law applicable to actions for slander, and as he could not have sued in the County Court, he ought to be allowed his costs; and the rule was made absolute accordingly (1). By R. S. C., (m), when issues in fact and law are raised (g) 51 & 52 Vict. c. 43, s. 116, subs. 2. (h) 30 & 31 Vict. c. 142, s. 5; and 45 & 46 Vict. c. 57, s. 4, both now repealed by the County Courts Act, 1888. (i) See Sampson v. Mackay, 38 L. J. Q. B. 245; Craven v. Smith, L. R. 4 Ex. 146. (k) Sampson v. Mackay, 10 B. & S. 694. (1) Gray v. West and wife, L. R. 4 Q. B. 175; 38 L. J. Q. B. 78; Kent v. Lewis, 21 W. R. 413. (m) Ord. LXV., r. 2. upon a claim or counter-claim, the costs of the several issues CHAPTER XX. respectively, both in law and fact, shall, unless otherwise ordered, follow the event (n). The effect of this rule is, to give the court or judge a discretionary power (as in rule 1) over the costs where there are several issues. But, when not otherwise ordered, the costs are to "follow the event." In which case, where the plaintiff succeeds on some issues and the defendant on others, the costs of particular issues must be taxed in favour of the party who has succeeded on them. 66 The term " event," in this rule, will be construed distributively. And therefore, where by the statement of claim, or defence, or other pleading, more than one definite issue is raised and determined; upon one of which the plaintiff obtains a verdict and judgment, and upon another the defendant obtains the like, there are two "events"; and in the absence of any order to the contrary, the master must tax the costs accordingly. There, may, however, be cases in which the issues raised at the trial are so subordinate to the real event of the action, or so indefinite, that a master might properly say," Although there have been many issues, there has been but one event." In such cases a direction as to the costs should be obtained at the trial, from the judge who tries the case (0). Where two or more actions of libel brought by one and the Apportionment of Costs, where same person against two or more defendants, have been con- actions of libel solidated, under the Law of Libel Amendment Act, 1888 (p), consolidated. the judge at the trial, if he awards to the plaintiff the costs of the action, shall thereupon make such order as he shall deem just for the apportionment of such costs between and against such defendants (q). the Slander of Women Act, In actions for words imputing unchastity or adultery to any Costs under woman or girl, under the Slander of Women Act, 1891, plaintiff cannot recover more costs than damages, unless the 1891. judge certifies that there was reasonable ground for bringing the action (r). Where in an action of libel the cause was compromised after Compromise by notice of trial, by the defendant agreeing to apologise and pay agreement to apology and (n) Prior to the Jud. Act, 1873, the rule was, that when issues in law and fact were raised, the costs of the several issues in law and fact followed the finding or judgment. Rule 62, H. T. 1853 (now repealed), made under the C. L. P. Act, 1852. pay Costs. (P) 51 & 52 Vict. c. 64, s. 5. (r) 54 & 55 Vict. c. 51. CHAPTER XX. the plaintiff's costs as between attorney and client, the court enforced performance of the agreement (s). So also in an action of slander (t). Set-off for damages, or Costs. Costs of photographic copies of alleged Libels. Security for By Foreigner, dent abroad. Costs of general rule as to. A set-off for damages or costs between parties, may be allowed notwithstanding the solicitor's lien for costs in the particular cause or matter in which the set-off is sought (u). The costs of inspecting and taking photographic copies of alleged libels must, in any event, be borne by the party requiring them. But the costs of the rule to show cause why such inspection should not be allowed will, in general, be costs in the cause (x). In any cause or matter in which security for costs is required, the security shall be of such amount, and be given at such times, and in such manner and form as the court or a judge shall direct (y). A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resident within the jurisdiction (2). When the plaintiff in an action of libel is a foreigner, and resident abroad, the defendant may obtain an order to compel the plaintiff to find security for costs: but in a case in which security to the amount of £400 had been given, the court refused to increase it, notwithstanding an affidavit that the expenses of obtaining the evidence of witnesses resident abroad would greatly exceed that sum (a). The Court of Appeal, under the Judicature Acts, has power to make such orders as to the whole or any part of the costs of the appeal as may be just (b). A successful appellant will, as a general rule, have his costs of the appeal (c). (s) Riley v. Byrne, 2 B. & Ad. 779. (u) R. S. C., Ord. LXV., r. 14. (y) R. S. C., Ord. LXV., r. 6. () Ibid., r. 6, A. (a) Pizani v. Lawson, 5 Scott, 418. (b) R. S. C., Ord. LVIII., r. 4. (c) Olivant v. Wright, 45 L. J. Ch. p. 1, and see Garnett v. Bradley, 3 App. Cas. 944; 48 L. J. Q. B. D. 200. 325 CHAPTER XXI. INJUNCTIONS TO RESTRAIN LIBELLOUS PUBLICATIONS. Grounds of Jurisdiction, and recent Result of authorities as to jurisdiction. Exceptional caution to be used. To restrain publication of matter in- In the case of Trade Circulars, &c. To restrain false statements of a candi- To restrain the publication of letters. THE jurisdiction to restrain, by injunction, the publication CHAPTER XXI. of libellous matter on the ground of injury to character and Grounds of reputation, is of recent assertion (a); conferred (it has been jurisdiction. said) by certain repealed sections of the Common Law Procedure Act, 1854 (b), and by the Judicature Act, 1873. Independently, however, of the latter statute, there is no principle of law nor rule of equity upon which to found such a jurisdiction. The ground upon which the court is empowered to interfere before trial, in the case of a false and injurious publication, is in the protection of property: and therefore, where a publication (whether libellous or not) is calculated to inflict some immediate wrongful and substantial injury to the property or manufactures of the plaintiff, it may be restrained by interlocutory injunction. The court may, therefore, restrain a publication on the ground that it is injurious to property, but not on the ground that it is a libel. Whether libel or not the court has no juris diction to determine; nor whether, if conditionally privileged, it was published maliciously; as those are questions of fact to be found by a jury. as to. It has, however, been the practice of late years for the High Recent practice Court of Justice in ordinary actions of defamation, to issue an injunction either before or after trial, to restrain the publication of libels, though not falling within the rule above stated; on the ground, merely of their tendency to the injury of character and reputation: but even such is a questionable (a) (1882) Quartz Hill Consolidated Gold Mining Co. v. Beall, 20 Ch. D. 501; 51 L. J. 874. |