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Present: Lascelles C.J. and Middleton J.ABDUL RAHIMAN v. AMERASEKERA et al.152—D. C. Galle, 10,069.
Coats—Two defendants filing answer Inf the same proctor—Action dismissedagainst one defendant—Successful defendant entitled to half costs ofdefence.
Where plaintiff sued two defendants who appeared by the sameproctor, and where judgment was entered for the plaintiff withcosts against one of the defendants, and the action was dismissedagainst the other defendant,—
Held, that the successful defendant was entitled to recover fromthe plaintiff half the costs of the defence.
N this case plaintiff sued to recover damages from the twodefendants, who he alleged had allowed a lire which they
set to their chena to spread to plaintiff’s cinnamon land. Bothdefendants retained the same proctor (who filed separate answers)and advocate for the trial.
1 (1889-90) 9 S. C. C. 42.2 (1861) Rem. 1860-62, 88.
3 (1862) Raw, 1866-62. 1H.
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The learned District Judge (B. Constantine, Esq.) gave judgmentfor the plaintiff against the first defendant with costs, and dismissedthe action against the second defendant, and made the followingorder as to costs
He has had no separate trial costs, but will receive from plaintiffhis costs of filing answer.
The plaintiff appealed, on the facts, against the dismissal of theaction against the second defendant, and the second defendant gavenotice of a cross appeal under section 772 of the Civil ProcedureCode against the order as to costs.
Bawa (with him Balasingham), for the plaintiff, appellant.
H. A. Jayewardene, for the second defendant, respondent.
(Plaintiff’s appeal, which was solely on the facts, was dismissed.)
H. A. Jayewardene, for the second defandant, appellant.—Theorder as to costs is wrong on principle. Where two defendantsappear by the same solicitor and only one defendant succeeds, thesuccessful defendant is entitled to half the total costs of the defence.Beaumont v. Senior and Bull.'
Balasingham (with him Bawa), for the plaintiff, respondent.—Thequestion of costs is one which is pre-eminently within the discretionof the District Judge. A successful party is not, as of right, in law,entitled to his costs. In the present case the learned District Judgehas awarded the second defendant some costs. The appeal is onlyone as to the quantum of costs. The Supreme Court has consistentlydeclined to interfere with the discretion of,the lower courts on thequestion of costs, unless a manifest injustice has been caused byits exercise. The plaintiff had good reasons for suing the seconddefendant. Counsel cited Government Agent, Uva, v. Banda-.
June 26, 1911. Lascelles C.J.—
.-. The second defendant’s counsel
has, however, given notice of a cross appeal with regard to the costsof the action. In the Court below he was successful. The actionagainst him was dismissed. But the District Judge has only allowedhim the costs of filing answer, and against this order, with regard tothe costs, he now appeals. I have no doubt that if the principlewhich is ordinarily applicable in cases of this kind had been broughtto the notice of the District Judge, his order as to the seconddefendant’s costs would have been different. The rule prevalent inEngland is as follows : Where several defendants*; retain the samesolicitor, each of them can only be charged with his proportion of the
1 (1903) 1 K. B, Z82.- (1910) 13 X. L. R. 311.
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June SIS, 1911
general costs of proceedings taken on behalf of all ; so that one oftwo defendants who employ the same solicitor can, if he alonesucceeds, recover, in the absence of agreement, only half the totalcosts of the defence. This is the rule stated in the case of Beaumontv. Senior and Bull'. It is, a rule based on equity and fair dealing,and I see no reason why it should not be applied in the present case.I would, therefore, vary the order of the District Judge by directingthe second defendant to receive from the plaintiff half the costs ofthe defence of the action.
I agree. It is contended here for the respondent that this Courtwill not interfere with the exercise of the discretion of the DistrictJudge in making an order as to costs, unless it is clear that a manifestinjustice has been caused by its exercise. That, no doubt, is therule that this Court has consistently followed. But in the presentcase it seems that the defendants had one proctor, and would bejointly liable to that proctor in the absence of any express agreementfor the costs of the action. On the principle that a successful defend-ant is entitled to recover from the plaintiff the costs which he hasincurred for defending the action.. I think that the successfuldefendant here is not quite treated justly in only receiving the costsof his answer, but should recover from the plaintiff half the coststhat he has incurred in defending the action. If authority is requiredfor these propositions, it may be found In re Colquhoun Cain v.Adams ;:l Starling v. Cozens Government Agent, Uva, v. Banda ;5and Beaumont v. Senior and Bull,' which has been relied upon bycounsel for respondent.
I agree to the order proposed by my Lord.
Order as to costs varied.
(1836) 5 L. J. (K. B.) 252.4 (1835) 2 C, M. d, ft. 446.
5 (1910) 13 X. it, 3,
1 (1903) 1 K. B. 282.*(1854) D. M. do 0. 35.