Pola Szeftel v Gutel Szeftel ((1963 - 1964) Z and NRLR 9) [1963] ZMHCNR 2 (6 June 1963)

POLA SZEFTEL v GUTEL SZEFTEL (1963 - 1964) Z and NRLR 9 1963 - 1964 Z and NRLR p9 [Before the Honourable Mr. Jus�ce WHELAN, Ac�ng Judge on the 6th June, 1963.] Flynote Costs - discre�on of taxing officer to allow costs in excess of the ordinary scale. Order XXXI V, rule 7, of the High Court Rules not on all fours with Order I, rule 6A, of the same rules. Headnote The hearing of the first pe��on in this case had proved abor�ve, and it became necessary to start proceedings de novo. At the second hearing, the court pronounced a decree nisi in favour of the pe��oner and ordered the respondent to pay the costs. The court did not make an order, in terms of Order I, rule 6A, of the High Court Rules, that these costs should be allowed on the higher scale. The deputy registrar, however, as taxing officer did allow certain items on the higher scale under the powers given him to do so by Order XXXIV, rule 7, of the High Court Rules. The respondent made applica�on for the deputy registrar to be ordered to review his taxa�on on the grounds that, in exercising his discre�on, the taxing officer should have acted on the same principles as the court would act when exercising its discre�on to allow costs on the higher scale under Order I, rule 6A. Held: (a) The wording of the two rules in ques�on is quite different and has different effects; and (b) the taxing officer had rightly exercised his discre�on. Applica�on for an order to review taxa�on refused, with costs to the pe��oner. [ Cases cited: (1) Williamson v North Staffordshire Rail Co. (1886) 32 Ch. Div. 399. (2) Paine v Chisholm [1891] 1 QB 531. Miss J J McGrowther for the pe��oner C J W Fleming for the respondent [Editorial Note] [Rule 6A of Order I was revoked by Government Notice No. 206 of 1964. However, the case is still of interest in relation to the interpretation of Order XXXIV, rule 7.] Judgment Whelan Ac�ng J: The hearing of the pe��on in this case began on the 27th March, 1962, but a�er some evidence, including that of the pe��oner, had been heard, it became apparent that both the interveners were s�ll infants at the �me they were served with a copy of the pe��on and that there had been no compliance with the provisions of rule 66 of the Matrimonial Causes Rules, 1957, rela�ng to the par�cipa�on of infants in divorce proceedings, the mode of service upon them and like maters. It therefore became necessary to remedy these maters and 1963 - 1964 Z and NRLR p10 WHELAN AJ to start the trial de novo. This was done on the 25th June, 1962. On the 18th August, 1962, the court pronounced a decree nisi in favour of the pe��oner and ordered that the respondent pay the costs of the pe��oner and the party cited. These costs were taxed by the deputy registrar on the 22nd February, 1963, and therea�er the respondent applied to the deputy registrar for a review of the taxa�on of both bills. This applica�on was refused on the 27th April, 1963, and the respondent now applies to me for an order to review the taxa�on of both bills of costs. On awarding costs against the respondent, the court made no order that they be allowed on the higher scale. Provision for such an order is made by Order I, rule 6A, of the High Court Rules which is as follows: "The costs set forth in the column headed ' Higher Scale ' in Scale G of Part I of Appendix D may be allowed, either generally in any cause or mater, or as to the costs of any par�cular applica�on made or business done, in any cause or mater, if on special grounds arising out of the nature and importance, or the difficulty or urgency of the case, the Court or a Judge shall, at the trial or hearing, or further considera�on of the cause or mater, or at the hearing of any applica�on therein, whether the cause or mater shall or shall not be brought to trial or hearing or to further considera�on (as the case may be), so order, or if the Taxing Officer, under direc�ons given to him for that purpose by the Court or a Judge, shall think that such allowance ought to be so made upon such special grounds as aforesaid." As I have said, no order as to the higher scale was made, nor indeed was one asked for, it being considered by counsel for the pe��oner and the party cited that this was not a case to which costs on the higher scale would apply. Upon the taxa�on of the pe��oner's bill of costs the deputy registrar allowed sums in excess of the maximum laid down in the ordinary scale of costs in Appendix D to the High Court Rules, in respect of instruc�ons for the original trial and instruc�ons for the second trial in that he allowed £250 in respect of instruc�ons for the first trial and £125 in respect of instruc�ons for the second trial. He had power to award costs in excess of the maximum laid down in the scale by virtue of Order 34, rule 7, of the High Court Rules, which is as follows: "Upon any taxa�on of costs, the taxing officer may, in determining the remunera�on to be allowed, have regard, subject to any rule of court, to the skill, labour and responsibility involved. If, on having regard to the said maters, the taxing officer considers that there are special reasons why costs in excess of those laid down in Appendix D hereto* should be allowed in any cause or mater, he may, in respect of any par�cular applica�on made or business done, allow such costs as seem to him reasonable. " The respondent submits that in exercising this discre�on the taxing officer should have acted upon the same principles as the court would act when exercising its discre�on to allow costs on the higher scale under 1963 - 1964 Z and NRLR p11 WHELAN AJ Order 1, rule 6A, and that, as this was not a case of the sort which would jus�fy an award of higher scale costs, the taxing master was not jus�fied in exceeding the maximum in the ordinary scale. In support of this argument, the respondent submits that the words appearing in Order 1, rule 6A: " . . . nature, importance and difficulty . . ." are respec�vely analogous to the words, " . . . labour, responsibility and skill ", appearing in Order 34, rule 7, and that Order 34, rule 7, ought to be interpreted in the same strict way as Order 1, rule 6A, is interpreted, and on this last point has drawn my aten�on to certain English cases which illustrated the type of case in which higher scale costs would be allowed. I am unable to accept the respondent's argument as a valid one. To do so would, in a case where higher scale costs had not been awarded, render Order 34, rule 7, inopera�ve and remove any discre�on on the part of the taxing officer. Further, even in a case where a party felt jus�fied in asking for costs on the higher scale, he would be more hesitant to do so lest they be refused, for, in that case, if the respondent's argument is correct the taxing master would subsequently, on taxa�on, be unable to exercise his discre�on under Order 34, rule 7. The wording of the two rules is quite different and in my opinion have quite different effects. There is no doubt on the authority of the English cases that before costs on the higher scale could be awarded prior to 1959, when Order 65, rule 9, of the Rules of the Supreme Court, which was almost iden�cal in wording to Order 1, rule 6A, of the High Court Rules - was in opera�on, special grounds must have existed arising out of the nature and importance or the difficulty or urgency of the case and the mere fact that a case was, for example, difficult and important, was not sufficient to jus�fy the gran�ng of costs on the higher scale. The special grounds had to be inherent in the case itself. Williamson v North Staffordshire Rail Co. (1886), 32 Ch. Div. 399 and Paine v Chisholm [1891] 1 Q. B. 531 are but two examples of how strictly the awarding of costs on the higher scale is limited. Such considera�ons would apply to the gran�ng of higher scale costs under Order 1, rule 6A, of the High Court Rules. It is however, simple to visualise a case which, whilst not jus�fying the award of costs on the higher scale, nevertheless involves considerable skill, labour and responsibility, for example, a case with a large number of witnesses expert or otherwise, or one involving a great deal of ordinary work. It is for this very reason that the taxing officer is given a discre�on by Order 34, rule 7, to exceed the maxima laid down in the scale of costs. There is no doubt that the present case was one where the taxing officer could jus�fiably exercise his discre�on to exceed the maximum laid down for instruc�ons for trial in the ordinary scale. He did not exceed the maximum in respect of the other thirteen items objected to in the pe��oner's bill, although the respondent alleges that he did, but I appreciate that, when added to certain items in the party cited's bill, the total does exceed the maximum. As to quantum, I have considered the respondent's submission on this point and taken into considera�on that the pe��oner and party cited were represented by one counsel. The deputy registrar states, in his decision of the 22nd February, that he took into considera�on this fact and gives his reasons for his appor�onment of costs between the pe��oner and the party cited. Whilst the pe��oner and party cited 1963 - 1964 Z and NRLR p12 WHELAN AJ had a common interest in the proceedings, their respec�ve interests were not en�rely iden�cal and the allowances made by the taxing officer in respect of the party cited's bill of costs, and which have been objected to by the respondent, were in my opinion jus�fied when considered in the light of the awards made to the pe��oner in her bill. I have also given the most careful considera�on to the facts which gave rise to the necessity for two trials, in the light of the respondent's submission that the taxing master did not take into considera�on, or proper considera�on, the fact that the costs of the first trial were thrown away by the default of the pe��oner in not realising that the interveners were infants at the �me the copies of the pe��on were served upon them, and that in respect of both bills only nominal costs should be allowed for instruc�ons for the first trial and no costs should be allowed for atendances in court on the first trial. Whilst the respondent was not responsible for the necessity for two trials, I do not think that the pe��oner and party cited should be deprived of their costs on that account. The fact that the proceedings in court began de novo resulted in an advantage to the respondent in that at the first trial the pe��oner had given evidence and was cross - examined before it was stopped. I see no reason to interfere with the allowances made in respect of both instruc�ons for trial. This was a most complicated case with a complexity of pleadings. There was an intricate legal problem to be resolved rela�ng to the form of marriage between the pe��oner and the respondent, and having, as I have said, the discre�on to exceed the maximum laid down in the ordinary scale, the taxing officer allowed, in my opinion, a proper sum in respect of these items. In the course of argument, counsel for the respondent stated that the taxing officer should have considered the effect of the 66 2/3per centum increase in costs permited by the Legal Prac��oners (Costs) Order, when determining the allowances in both bills. This submission cannot be accepted for that would render nugatory the effects of the order in ques�on. The applica�on for an order to review the taxa�on of both bills of costs is in each case refused, with costs to the pe��oner. * By Government No�ce No. 206 of 1964 the words " the Appendix to the Legal Prac��oners (Costs) Order, 1964 ", were subs�tuted for the words " Appendix D hereto."