059-NLR-NLR-V-45-FERNANDO-Appellant-and-PERERA-Respondent.pdf
SOEBTSZ J.—Fernando and Perera.
£27
1944Present: Soertsz and Wijeyewardene JJ.PERN ANDO, Appellant and PERERA, Respondent.
169—D. C. Chilaw, 11,785.
Costs—Order for costs in the class of action—Amount awarded in lower class—
Jurisdiction of District Court—Powers of Supreme Court.
An order for costs in the class in which an action is instituted may bemade when the amount actually awarded to the plaintiff is one in alower class.
It is desirable that a trial Judge should state his reasons for such anorder. On his failure to do so, it is open to the Court of Appeal toexamine the merits of the order.
^^PPEAL from a judgment of the District Judge of Chilaw.
L>. A. Raja-paJcse, for substituted defendant, appellant.
J.Fernando Pulle, for the plaintiff, respondent.
Cur. adv. vult.
May 12, 1944. Soertsz J.—
The short hut not unimportant point that arises on the only submissionmade to us on behalf of the appellant is whether an order for costs in theclass in which an action is instituted is justified when the sum actuallyawarded to the plaintiff is a sum in a lower class.
Counsel for the appellant did not contend, and I do not think hecould have contended successfully, that costs must- invariably be awardedin the class in which the sum actually found for a plaintiff occurs. Buthe did submit that an order for costs in the original class, accompanyingan award for a sum in a lower class, ought to be set aside in a case such asthe one before us in which the Trial Judge has given no reasons forallowing costs in the higher eldss.
228
SOERTSZ .T.—Fernando and Perera.
The submission appears to me to be too- wide. It is undoubtedlyextremely desirable that a Trial Judge should state his reasons for suchan order, but his failure to do so cannot result iq the manner suggestedfor the appellant. Tt would surely be open to an appeal Court to examinethe merits of the order.
The question then is how that matter should be examined. Over ahundred years ago this Court answered a similar question submitted to itby a District Judge thus:“ The general rule is that costs are awarded
in the class in which judgment is given unless special circumstancesappear to take the case out of the rule ”. Austin’s Reports 1833-1858,page 5.
If, for instance, a party is found to have unduly exaggerated his claim,our law reports show that in appropriate cases, not only has he beenawarded costs in the class in which he obtained judgment, but also thathe has been ordered to pay the difference in costs to the other party.Goonesekera v. Senaratne1, Meera Saibo v. Omer Lebbe2. MohamadoLebbe v. Veerappa Chetty3, De Silva v. Babu-nhamy4.
But this question whether a claim has been unduly exaggerated or notis not susceptible of easy answer in every kind of case. It is a difficultquestion in a case such as this where the plaintiff is suing for damagesfor malicious prosecution. The Trial Judge found, and found correctly,that the defendant acted maliciously in preferring a charge as seriousas that of housebreaking and robbery against his son-in-law, the defendant,with whom he had fallen out and yet he has seen fit to reduce thedamages claimed,—the modest sum of Rs. 1,000 to Es. 300. Thisappears to me have been done quite arbitrarily.
Every element that the Judge appears to have considered in fixingdamages is an element not of mitigation but of aggrevation. In thisconnection, I would only refer to two English cases:—Hewlett v.Gruchley5 and Leith v. Pope cited in Mayne on damages p. 588. In theformer case an Attorney charged his clerk for felony after taking legaladvice, but without a full disclosure of the facts to his advisers. Theclerk was discharged and sued for damages and obtained a verdict for£2,000. Upon a plea in appeal that the damages awarded were excessiveMansifield C.J. observed “ Could any one say that any rational man ofcharacter would for £2,000 put himself in this situation? If not, thedamages are not excessive ”. In the latter case where the plaintiff wasarrested and indicted for felony out of mere revenge and without a. shadow of pretence—and that is the case here too—£10,000 was allowed.But we, here, seem to be able to bear the misfortunes of others with greatfortitude, and so liberty, reputation, and life itself are counted cheap.It seems to me that when the plaintiff established that the defendanthad acted maliciously in preferring the serious charges he made againsthim, he substantially won his case. The question of damages was asubsidiary question with which the Court was concerned ea; debitojutitiae, in order to make good to the plaintiff, as far as money could makegood, the loss or diminution of good name and prestige he must inevitably
5 N. L. R. 242.
4 N. L. R. 319.
Cur. L. R. 137.* 1 S.C. D. 1.
5 5 Taunt. 277.
WIJEYEWARDEXE J.—Fernando and Perera.
229
have suffered. The principal underlying the question of costs in thesecases was stated by Sargeant C.J. in the case of Ganashan v. Moroba1as follows:—“ Costs should follow the event. What is the event? It isobviously this, that the plaintiff has succeeded in proving his allegation.He has established his case although, no doubt, he has not got the preciseform of relief he desired …. he alleges that he has suffered aninjury from the defendant and he comes to the Court for redress. Hehas proved the injury. He has proved that he is entitled to some relief,and that being so, I cannot see why he should be refused his costs because,in the opinion of -the Court, the extent of the injury proved may besufficiently -redressed by giving him damages rather than an injunction.It is to be observed that the defendant throughout has denied that theplaintiff has suffered any injury and has thus compelled him to prove hiscase. ”
The case before us is even stronger. The plaintiff proved malice andthat of the worst type, as actuating the defendant, and in regard todamages, can it reasonably be said that a man exaggerates who rateshis good name and fame at Rs. 1,000, however humble a man he may be?
Tn my opinion, we would be adding insult to injury were we to accedeto the request of the appellant.
would dismiss the appeal with costs.
Wijeyewajrdene J.—
The plaintiff claimed Rs. 1,000 as damages. The District Judgeassessed’ the damages at Rs. 300 and gave judgment “ for plaintiff forRs. 300 and costs of this action. ” There has been no appeal by theplaintiff on the ground that the sum awarded to him is inadequate. Ithink, therefore, that in considering the question of costs we must proceedon the footing that the amount decreed to the plaintiff as damages is theamount that could have been claimed justly and reasonably by theplaintiff. Now under the decree of the District Court the plaintiff wouldget his costs in the Rs. 1,000 class in spite of the reduction of his claim toRs. 300. This would be against the general rule of practice that costsshould be given in the class in which judgment is given. Of course, it wasopen to the District Judge to give the costs in the higher class, if hethought that the circumstances of the ease justified such an order. Hehas, however, given no reasons for departing from the general rule, if he,in fact intended to make such a departure. I find it difficult to believethat he gave his mind at all to this question or made his order giving“ the costs of the action ” after due consideration. Nor am I able toinfer from the judgment that in fixing the damages at Rs. 300 the DistrictJudge has been influenced by the consideration that he was going to givethe plaintiff costs in a higher class. These difficulties have given rise tosome doubts in my mind as to the correctness of the order as to costsmade by the District Judge. However, as my brother has no doubtswhatever on this point, I agree to the order proposed by him.
Appeal dismissed.
I 18 Bom. 474.