High Court of Justice in Northern Ireland Chancery Division Decisions

Gillespie v. Thompson [1998] NICh 6; [1999] NIJB 9 (2nd December, 1998)

1995 No 975





Delivered:
2 December 1998

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

GIRJ2655

CHANCERY DIVISION

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BETWEEN:

BRIAN GILLESPIE

Plaintiff;

AND

MAURICE THOMPSON

Defendant.

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GIRVAN J

JUDGMENT

1. This matter comes before the court by way of a Notice of Motion issued by the plaintiff on 14 September 1998 wherein the plaintiff seeks an order that orders of Campbell J dated 17 December 1996 and 14 March 1997 be amended to direct that the defendant do pay the plaintiff the costs taxes on the High Court scale of and incidental to the proceedings relating to an action and counterclaim and relating to the enforcement of the consent order of 17 December 1996. On the hearing of the application Mr McEwen appeared on behalf the plaintiff and Mr Good appeared on behalf of the defendant.

2. The original action began by a writ issued on 7 September 1995 wherein the plaintiff as lessor claimed possession of premises at 76 Lurgan Road, Portadown, Co Armagh ("the premises"), arrears of rent amounting to the sum of some [sterling]6,600, mesne profits and damages for breaches of covenant. In his statement of claim the plaintiff alleged breaches of repairing obligations in the lease relating to the premises giving rise to a claim in damages measured in the sum of [sterling]18,770. The defendant denied the plaintiff's various claims and made a substantial counterclaim against the plaintiff claiming substantial loss of sales revenue in respect of oil and coal by reason of breaches of contract on the part of the plaintiff. The overall counterclaim exceeded [sterling]137,000.

3. When the action and counterclaim came on for hearing a settlement was negotiated between the parties whereby it was agreed that the defendant would surrender the premises to the plaintiff and pay [sterling]7,500. He abandoned his counterclaim and it was agreed that the defendant should pay to the plaintiff "his costs of these proceedings, such costs to be taxed in default of agreement." A consent in the form of a Tomlin Order was made on 17 December 1996 staying the proceedings in the action and counterclaim except for the purpose of carrying into effect the terms set forth in the Schedule to the order. Under the Schedule it was provided that:

"1. The defendant shall surrender vacant possession of the premises known as and situate at 76 Lurgan Road, Portadown, Co Armagh occupied by the defendant as tenant of the plaintiff with immediate effect;

2. The defendant shall pay to the plaintiff within three weeks from the date hereof the sum of [sterling]7,500;

3. The terms herein are in full and final settlement of all issues and disputes between the plaintiff and the defendant raised by the pleadings herein;

4. Liberty to apply."

4. The defendant did not fulfil the terms of the settlement and it became necessary to make application to the court to remove the stay placed on the enforcement of the terms and on 14 March 1997 it was ordered that the defendant do forthwith surrender to the plaintiff vacant possession of the premises and it was further ordered that the defendant do pay to the plaintiff his costs of the application such costs to be taxed in default of agreement.

5. The plaintiff's solicitor Mr Thompson of Thompson Mitchell, solicitors, in his affidavit in support of the Notice of Motion asserted that it was his understanding that it was the intention of the parties that the plaintiff's costs were to be measured on the High Court scale. He was advised by his costs' drawer that the provisions of Section 59(2) of the Judicature (Northern Ireland) Act 1978 ("the 1978 Act") might lead the Taxing Master to conclude that costs should be taxed on the County Court scale. The defendant's solicitor, Mr Hare of John Hare & Co in his replying affidavit stated that the Order simply provided that costs would be paid if agreed and in default of agreement would be taxed. As no agreement had been reached it was now a matter for taxation and the normal rules of law regarding taxation should apply.

6. Under Section 59(1) of the 1978 Act it is provided that subject to the provisions of the Act and to Rules of Court and to any other express statutory provisions the costs of and incidental to proceedings in the High Court and the Court of Appeal should be in the discretion of the court and the court should have power to determine when and to what extent the costs were to be paid. Section 59(2), which is the material provision in the present application provides:

"Save as otherwise provided by any statutory provision passed after this Act or by rules of court, if damages or other relief awarded could have been obtained in proceedings commenced in the county court, the plaintiff shall not, except this for special cause shown and mentioned in the judgment making the award, recover more costs than would have been recoverable had the same relief been awarded by the county court."

7. Under Section 60 it is provided that the jurisdiction of the High Court, the Court of Appeal and Crown Court in respect of taxation of costs should be vested in the Master (Taxing Office) or such other statutory officer as may be designated for that purpose by the Lord Chancellor after consultation with the Lord Chief Justice and should be exercised in accordance with the rules of court.

8. Mr McEwen argued that the court should intervene and amend the orders to make clear that the costs which the defendant was to pay the plaintiff should be taxed on the High Court scale. He was unable to point to any evidence that the parties had expressly agreed before the order was drawn up that the order should so provide. Consent orders represent binding agreements of a contractual nature and as in the case of a claim for rectification of any other contract its terms could only be varied if the evidence established that the terms recorded in the consent fail to record what had been truly agreed between the parties. It follows that in this case the plaintiff could not lead any evidence establishing a right to rectification of the court order. The parties' rights and obligations in respect of the question of costs accordingly falls to be determined in accordance with the relevant legal principles.

9. Mr McEwen fell back on the argument that the court make it clear that the costs fall to be taxed on the High Court scale and that Section 59(2) of the 1978 Act does not oblige, require or authorise the taxation of the costs of the proceedings on the County Court scale. The plaintiff's claim in his action as formulated in the statement of claim clearly fell within the High Court jurisdiction. The defendant's counterclaim likewise fell to be determined by the High Court and could not have been determined in the County Court. Had the plaintiff issued a civil bill and restricted his monetary claim to that available in the County Court if the defendant wished to assert and proceed with his counterclaim such proceedings had to be asserted in the High Court and it is inevitable that the County Court proceedings brought by the plaintiff would be transferred to the High Court so that the parties' claim and counterclaim could be determined at the same time. As it is the parties compromised the action and the counterclaim on terms which provided for the return of the premises (the valuation of which brought the premises within the County Court jurisdiction) and provided for the payment of a sum of money which likewise fell within the County Court jurisdiction.

10. Section 59(2) deprives a party of High Court costs and entitles him only to County Court costs only if "damages or other relief awarded" could have been obtained in the County Court. If one were to focus exclusively on the order in respect of the yielding up of possession of the premises and the payment of the agreed sum of money as the relief awarded it could be said that those reliefs could have been obtained in proceedings commenced in the County Court but to limit the focus to those two headings would be to miss the overall effect and purport of the consent order which was to stay the action and the counterclaim (the latter clearly and exclusively falling within the High Court jurisdiction) and which in paragraph 3 of the Schedule provided that the terms were in full and final settlement of all issues and disputes between the plaintiff and the defendant raised by the pleadings (which thus included the counterclaim). Thus the overall relief awarded on the face of the order was not relief which could have been obtained in proceedings commenced in the County Court.

11. While normally matters of taxation fall within the exclusive jurisdiction of the Master (subject to the right of review vested in the High Court), in the present case the parties reserved the right to apply to the court under a general liberty to apply and I see no reason why the court cannot at this stage determine the correct basis of taxation to be adopted by the Taxing Master if and when the costs have to be taxed. Were it otherwise the parties, as Mr Good appears to concede, would have to put the costs to the Taxing Master for taxation, ventilate the current arguments before the Taxing Master, complete taxation and then apply for a review seeking a ruling which can be given more effectively and cheaply at this point.

12. Since in my view the costs under the order of 17 December 1996 fall to be taxed on the High Court scale the costs in relation to the application to enforce the terms of settlement must likewise be taxed on the High Court scale.

13. I shall hear counsel on the question of the costs of and incidental to the present application before the court. 1995 No 975

IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

GIRJ2655

CHANCERY DIVISION

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BETWEEN:

BRIAN GILLESPIE

Plaintiff;

AND

MAURICE THOMPSON

Defendant.

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J U D G M E N T O F

GIRVAN J

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