Oza v New India Assurance Co. Ltd (C.C. No. 115/1936) [1936] EACA 133 (1 January 1936)

## ORIGINAL CIVIL

### REVIEW OF TAXATION

## BEFORE SIR JOSEPH SHERIDAN, C. J.

# UCHHRANGRAI KESHAVRAI OZA, Plaintiff

### NEW INDIA ASSURANCE CO., LTD, Defendants C. C. No. 115/1936

Practice—Taxation—Costs of interlocutory application—Application for taxation before final decree.

The action, which was brought for an account of what was due to the plaintiff under a contract of agency, was instituted on 25-8-36. On 17-9-36 the defendants applied by Motion for an order directing $\mathbf{O}$ the plaintiff to furnish particulars and on this application an order was made for certain particulars to be furnished and the defendants were awarded the costs of the application. Immediately thereafter the defendants applied to the Registrar to tax the costs so awarded to them. The Registrar refused to tax the costs until the final disposal of the action, and the defendants appealed.

Held (27-11-36).—That the ruling of the Registrar refusing to tax the costs of the interlocutory application prior to the determination of the suit was correct. (Philipps v. Philipps (5 Q. B. D. 60) followed).

Hogan, for the defendants, referred to Rules of Court, Part XIII, Section III, rr. 35, 36: Wickham v. Taylor (35 Ch. D. 272).

Phadke, for the plaintiff, referred to Philipps v. Philipps (5. $O. B. D.60$ ).

JUDGMENT.-In the course of a taxation ruling the learned Registrar has stated that "the practice has always been in the High Court to have only one taxation of costs in an action, unless the Judge directs the immediate taxation and payment of the costs of an interlocutory application". I have been referred by the Registrar to extracts from the Office Order Book kept by the Deputy Registrar at Mombasa and two of these appear to me to bear out the correctness of what the Registrar has said as to the practice.

The first extract is "Costs of Chamber application are costs in any event and await the final disposal of suit", the second is "When one of the parties is allowed the costs of a Chamber application but the other party is successful in the main issue in the case a copy of the bill of costs of the Chamber application should be served on the other side and should be taxed at the same time as the costs of the main issue. No separate costs of taxation should be allowed on the Chamber application". It has not been shown to me that this practice is contrary to any provisions of law; on the contrary the practice would appear to be in conformity with the practice in force in the King's Bench Division in England: Philipps v. Philipps (5 Q. B. D. 60). I agree with the Registrar's ruling in declining to tax the bill of costs of the interlocutory application prior to the determination of the suit. Mr. Phadke will have the costs; as to whether these costs should be paid now or later adjusted on the termination of the suit Counsel are at liberty to mention the matter before me later. Meantime no order as to payment of these costs is made. Costs agreed at Sh. 80.

Note.—See also Abdi Nuri v. B. E. A. Corporation and another $(3$ E. A. L. R. 15) Ed.