DE KRETSER J.—Haramanis Appu v. Wickremesinghe.
1939Present : de Kretser J.
HARAMANIS APPU v. WICKREMESINGHE et al.
125—C. R. Galle, 18,785.
Court of Requests—Taxation of costs—Powers of Commissioner—Witnesses
charges—Party giving evidence not entitled to charge for expenses—
Method of taxation—Civil Procedure Code, ss. 214, 338 (Cap. 86).
In the Court of Requests it is the duty of the Commissioner to determinethe. amount to be allowed to a successful party by way of costs on accountof witnesses’ expenses.
An appeal lies from the decision of the Commissioner.
A party who gives evidence in a case is not entitled to recover hisexpenses as costs.
Section 833 of the Civil Procedure Code taken with the Second Sche-dule Part III. makes provision for the taxation of costs in a Court ofRequests and section 214 will have no application except in rare cases.Section 833 assumes an ex parte taxation of a bill of costs and expensesand as such expenses must be determined by the Commissioner, themost appropriate time for him to do so would be at the conclusion ofthe judgment.
If it is done' thereafter, the party moving should do so with notice tothe opposite party and only include the item in the bill after the decisionof the Court.
PPEAL from an order of the Commissioner of Requests, Galle.
J. E. M. Obeyesekere, for plaintiff, appellant.
H. V. Perera, K.C. (with him E. A. P. Wijeyratne and D. S. Senanayake),for defendants, respondents.
Cur. adv. vult.
December 7, 1939. de Kretser J.—
This is an appeal from an order made by the learned Commissionerregarding charges in a bill of costs with respect to an expert witness, anEngineer in the Irrigation Department. Many points have been taken,all of them connected with the procedure to be adopted.
1 (1885) 29 Chan. Div. 448.
308DE KRETSER J.—Haramanis Appu v. Wick.remesin.ghe.
Most of the reported cases deal with bills of costs in a District Court,and none of them has considered, the effect of section 833 which dealsspecially with Courts of Requests.
I shall briefly review the legislation on this point. Courts of Requestsjvere established by Ordinance No. 14 of 1843 which limited their juris-diction to .£5 and enacted that there were to be no written pleadings.The Supreme Court was empowered to make rules and did so in 1844.Most of the steps in a case were controlled by a “ clerk of Court”, and hewas required by rule 23 to “ tax the necessary costs and expenses of thesuit against the party to be charged therewith ”. There was no scheduleof costs.
Ordinance No. 9 of 1859 made further provision, and new rules cameinto force in 1860. Rule 35 with regard to costs is substantially the same-as section 833 of the existing Code. We now get a schedule and definiteamounts are fixed according to the value of the action. No additionalcosts were provided for advocates, and “ batta of witnesses ” was atthe discretion of the Commissioner and according to the circumstances ofeach witness.
When the existing Code came into operation there existed a scheduleof costs for Courts of Requests, and this schedule provided for reviewand appeal with regard to charges for surveys and plans and also gavethe Commissioner power to allow a further sum of costs on special appli-cation. his order being subject to appeal. Then came the presentschedule.
The above summary indicates that taxation of costs in Courts ofRequests was in a class distinct and separate from taxation of costs inthe District Courts ; and while section 214 is of general application andspecifically mentions Courts of Requests section 801 expressly enacts that“ the following special rules of procedure shall be taken as limiting andcontrolling the general provisions The general rules may apply whenthey, are not inconsistent with the special rules. It seems to me thatsection 833 taken with the present schedule makes ample provision, andthat section 214 will have no application to the taxation of costs in aCourt of Requests except in very rare cases. Section 833 requires thechief clerk to tax costs according to. the rates specified in the schedule.Those rates are specified with respect to the charges to be allowed forProctors and Advocates. There is no multiplicity of items and nodifficulty in applying the schedule, and really there is very little for thec’eirk to do. It should not be necessary to bring up such a bill in reviewbefore the Court unless the clerk were utterly incompetent or dishonest,and legislation cannot proceed upon such assumptions:There may,
however, be such a case as was dealt with in Samarasinghe v. Babunhamy ’.The schedule then proceeds to make provision for certain other items,and two of these, viz., the costs of surveys and plans and the costs ofincidental proceedings, are placed solely within the discretion of theCommissioner and a right of appeal is given from his ruling. Withregard to “ witnesses’ expenses ”, these were left to be determined by theCommissioner and no right of appeal is allowed. Obviously the Com-missioner is not expected to review his own decision in these matters,
> / c. )V. R. 101.
DE KRETSER J.—Harainanis Appti v. Wickremesinghe.309
and where a right of appeal is given it is to be inferred that he will haveboth parties before him so that the party dissatisfied may appeal fromhis order. Section 833 assumes an ex parte taxation of a bill of costs andexpenses and. as such expenses must be determined by the Commissioner,the most appropriate time for him to do so would be at the conclusion ofhis judgment. If it is done thereafter, the party moving should movewith notice to the opposite party, and only include the item in his billafter the decision of the Court has been given.
With regard to witnesses’ expenses, there can be no objection to a scalebeing adopted for general use, and this is usually done. In such casesthe items are predetermined by the Commissioner. But what of aspecial type of witness? Here again the Commissioner must decide,and he ’mist use his discretion in a judicial manner. With regard to theitems where an appeal is given, he is expressly required to allow onlyreasonable charges. Section 208 defines “ costs ”, and the whole of theexpense necessarily incurred are allowed. In illustrating what is meantcertain items are specified, and the section originally had “ charges ofwitnesses ”, but by section 2 of Ordinance No. 39 of 1921, these wordsmade way for “such just and reasonable charges as appear to have beenproperly incurred in procuring evidence and the attendance of witnesses ”.The Commissioner therefore has guidance for the exercise of his discretion.No doubt he would ordinarily hear both parties on any special matter.He is required to determine the expenses, and that seems to imply hearingboth parties first; but when he acts ex parte I can see no reason why anydissatisfied party should not apply to him to reconsider his decision.That procedure would be justified by the ordinary rule that when anorder is made ex parte the party dissatisfied should in the first instanceapply to the person who made the order. In the present case the Com-missioner had nothing to do with fixing the amount of Mr. Webb’scharges. These appear to have been fixed by Mr. Webb himself. Buteventually the matter did come up before the Commissioner, and if I weresatisfied that he did exercise his discretion properly I should not beinclined to interfere. I do not think, for the reasons I have already given,that the question had first to be raised before the Chief Clerk and to bereferred by him to the Commissioner, and that this defect in procedure isfatal in view of the decision in Mohamed v. Deenx. I do not think theclerk’s action was so irregular as to render all proceedings, and in fact thebill itself, a nullity, nor do I think the Commissioner’s decision mustnecessarily be given at the time he gives judgment or at least before the'bill is presented for taxation. I do think if the matter came up beforehim and he decided it there is no right of appeal, but there is always aright in this Court to revise proceedings when discretion has not beenproperly exercised.
In the present case the matter came before the Commissioner by wayof review when conceivably his attitude towards the bill may have beendifferent to what it would have been had the matter come before himoriginally. In the next place he says the item is excessive but seems toindicate that his hands were tied because Mr. Webb’s evidence was veryuseful and therefore the expenditure was necessarily incurred. This is a
> .S’ C. L. life. 174.
310 .DE KRETSER J.—Haramanis Appu v. Wickremesinghe.
nonsequitur. Behind this reasoning is the idea that Mr. Webb’s bill hasbeen prepared in accordance with regulations by which he is bound. Thefinancial regulation quoted by the Commissioner does not imply that theofficer is obliged to follow any scale of fees, nor does the circumstancethat the bill was sent through the head of Mr. Webb’s department indicateeither approval of the bill or that it has been prepared in accordance withregulations. These are matters regarding which there ought to beevidence. There is no evidence of what the agreement between defendantand Mr. Webb was when he engaged his services. Mr. Webb’s letterindicates that he sent in his bill on September 23, 1938, and that defendantaccepted it by his letter dated September 30, 1938j i.e., the date of thetrial. Why everything was left to the last moment is not explained.Mr. Webb presumably had to get permission to do private work andwould be approached much earlier ordinarily.
In view of the Financial Regulation quoted by the Commissioner thestatement in the letter that the fees are due to Government requiresto be read with some qualification. As I am sending the case backI shall not say anything about the items in the bill. It will be bestperhaps if the matter is put before another Commissioner.
With regard to the order made regarding the batta bills presented bythe first defendant in his capacity as a witness, I am unable to say theCommissioner’s decision is wrong. There is every reason to believe thatthe first defendant attended Court and gave evidence in his own interestsand that there was no obligation on his part to do so. It seems to methat our Code makes special provision on this point and throughoutdraws a distinction between a party and a witness. Section 141 dealswith the position of a party who is required to-give evidence. Sections122 et seq. only provide for witnesses’ costs being paid and deposited orsecured in advance, and do not provide for their attending voluntarilyand then charging.
The Commissioner says it has not been the practice for a party whogives evidence to charge for expenses, and my own experience corro-borates him on this point. It would be unfortunate to depart from soinveterate a practice, especially in a Court of Requests where the policyhas been to keep down costs.
The case of Howes v. Barber' quoted by Mr. Perera was decided in 1852and dealt with the facts of that particular case. Lord Campbell C.J. said:“ No doubt the practice of allowing costs to the successful party inrespect of his having been a witness for himself may lead to inconvenientconsequences; but we do not think we can lay down a rule that suchcosts can never be allowed …. We must trust to the intelligenceand the vigilance of the taxing officers to defeat and to frustrate attemptsthat may be made to swell costs unnecessarily under the pretext that theparties were material and necessary witnesses. The simple fact of theirbeing examined as witnesses must by no means be considered sufficientto establish a claim for their expenses as witnesses; and if it appears thattheir attendance was unnecessary, or that they attended to superintendthe conduct of the cause, the claim ought to be rejected ”.
• > (1852) 18 Q. B. -588.
HEARNE J.—Somapnla v. Rajapakse.
It is to be noted that 15 & 16 Viet. c. 86 was not then in existence, andthat in 1858 when the case of a party claiming expenses did arise it wasdecided on the provisions- in the Act which provided that a party requiringto cross-examine a witness, on his affidavit should pay the expenses. Thecase was Davey v. Durrant.1 In that case the party refused to be swornor cross-examined until his expenses were paid by the party who hadrequired his attendance, and the Court held that he was in the sameposition as a witness and .was covered by the Act.
But while the principles recognized in these cases might possibly beapplied in appropriate cases, I think that our Code had made ampleprovision on the subject. In any case it is impossible to say that theCommissioner exercised his discretion wrongly.
The order with regard to Mr. Webb’s charges is set aside and the casesent back for fresh consideration of this point.
There will be no costs of this appeal, and the costs of further proceedingswill be in the discretion of the learned Commissioner.
HARAMANIS APPU v. WICKREMESINGHE et al