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Present: Middleton -T.' and Wood Renton J.WIJESURIYA v. MEPI NONAetal
D. C. Galle, 8,919.
Costs—Orderastocostsmade againstplaintiffinfavour of one oftwo
defendants—Extent of plaintiff's liability to pay costs.
Wherean order as to costs is made againsttheplaintiff infavour
of oneoftwo defendants, thecriterionof-the liabilityofthe
plaintiff tothe defendant in whosefavourthe orderfor costs is
made is the liability of the defendant himself to his proctor.
If twodefendants supporting a similar defenceemployone
proctor,and have no agreement as to howthecosts areto be
borne, eachof thedefendants isliable totheir .proctorforhalf
the costs of the defence, and that would betheamount which the
plaintiffwouldhaveto pay thesuccessful defendant. If,however,
the two defendants are supporting their defences entirely inde-pendentof each other, though* each has employedthe sameproctor,
the liability of each to the proctor may be distinct and separate.
( 15D )
HE facts appear sufficiently from the judgment of Middleton J.1W2;
Bawa, K.C., for the appellants.—The case relied on by the District Mepi NonaJudge (Abdul Bahiman v. Ameraaekera1) does not apply to the factsof this case. In that case the defendants jointly retained oneproctor. Here the sixteenth defendant retained the proctor whohad been retained for the appellants to fight an entirely differentcase. It is an accident that the same proctor was retained; but thecase for the sixteenth defendant is entirely different from the casefor the appellants.
Wadsivorth, for the respondent.—The same proctor was retainedby all the defendants. The proctor cannot recover the full costsfrom each of the defendants. The appellants cannot, therefore, getfrom the plaintiff more than the amount they are liable to paytheir proctor.
Bawa, K.G.t in reply.
Cur. adv. vult.
Februaiy 5, 191*. Middleton J.—
In this case the first to seventh defendants – appellants were suedby tile plaintiff for a partition of land, the appellants objecting tothe inclusion in the partition of a lot marked B. The appellantswere represented by a proctor, who was subsequently retained forthe sixteenth defendant, who had been added as a party.- TheCourt dismissed the action, and ordered the plaintiff to pay the costsof the first to seventh defendants, and the sixteenth defendant topay the costs of the plaintiff for May 29 and 30, 1911. Upontaxation of costs, the plaintiff objected, on the authority of AbdulBahiman v. Amerasekeray1 that first to seventh defendants were onlyentitled to tax half their costs against them, and the District Judgeupheld this view, against which the first to seventh defendantsappealed.
The principle laid down in Beaumont v. Senior,2 upon whichthe decision in Abdul Rahiman v. Amerasekera1 is founded, is thata, successful defendant is entitled to recover from the plaintiffthe costs he has incurred in defending the action, and that thosecosts must depend on the liability of the defendants to their proctor.
If two defendants supporting a similar defence employ one proctor*and have no agreement as to how the costs are to be borne, I think,on the authority of the case cited, that each of the defendants isliable to their proctor for half the costs of the defence, and thatwould be the amount which the plaintiff would have to pay thesuccessful defendant. If, however, two defendants are supportingtheir defences entirely independent of each other*, it seems to me thatthough each has employed the same proctor, the liability of each to
the proctor may be distinct and separable.
■ (19T3) 14 X. L. K. 320.
= (1908) 1 K. B. 982.
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Here the sixteenth defendant, though he supported the first toseventh defendants defence, yet got himself added on the groundthat he had a planter’s interest- The District Judge’s order wasthat where the proctor and advocate appeared for the first to seventhdefendants solely, the full costs of their appearance were to be paidby the plaintiff, but if they appeared for all the defendants, thenthe plaintiff was to pay only half the fees. This does not seem tome to be in accordance with the ruling of this Court in AbdulRahiman v. Amerasekera.1
The criterion of liability to the defendants in whose favour theorder for costs, is made is the liability of the defendants themselvesto their proctors.
The first to seventh defendants, whose defence was put forwardentirely independent of the sixteenth defendant, though it happenedto be the same, would be liable to their proctors quite separatefrom the sixteenth defendant, and to this extent they are liable totheir proctors for taxed costs, and would be liable to claim suchcosts on taxation against the plaintiff.
I would therefore vary the order of the District Judge by directingthat the first to seventh defendants be entitled to be paid by theplaintiff all such costs as are properly payable by the first to seventh' defendants to their proctor and advocate in defending the action,
• quite apart .from the retainer by the sixteenth defendant of the samelegal advisers.
The appellants will have the. costs of the appeal and of theproceedings upon taxation and review in the District Court.
Wood Renton J.—
The question at issue in this case is whether the learned DistricfrJudge has rightly applied the principle laid down by the SupremeCourt in the case of Abdul Rahiman v. Amerasekera,1 following thecase of Beaumont v. Senior,2 to the circumstances of the present case.In those cases two sets of defendants jointly retained, and werejointly represented by, the same proctors and solicitors respectivelyfor the purpose of the trial. It was held that where judgment wasgiven in favour of one defendant and against the other, the successful 'defendant was, in the absence of any agreement between him andhis co-defendant as to how their costs were to-be borne inter se,entitled to recover from the plaintiff half the costs of the defence.
In my opinion that principle has no application to a case like thepresent, where, although the appellants and the added defendant-were in fact represented at the triad by the same proctor, they didnot retain him jointly, nor were they in any sense acting jointlyin their defence. I agree to the order proposed by my brotherMiddleton.
' (1911) 14 N. L. R. 226.2 (1903) 1 K. B. 282.
WIJESURIYA v. MEPI NONA et al