Berwick v Singh [1977] FijiLawRp 5; [1977] 23 FLR 101 (25 March 1977)

[1977] 23 FLR 101

COURT OF APPEAL

Civil Jurisdiction

BENJAMIN CHARLES BERWICK

v.

RAM SINGH & ANOTHER

Gould V. P., Marsack J. A., Henry J. A.

21st, 25th March 1977

Costs — in discretion of trial judge — discretion must be exercised judicially — whether partially successful party entitled to costs as of right.

A partly successful plaintiff was entitled to his full costs on the usual rule of practice that costs follow the event, but when the plaintiff and defendant claimed against each other and it was held that both have been to blame, the award of costs was discretionary.

Cases referred to:
Cooper v. Whittingham (1880) 15 Ch. D. 501.
McCarthy v. Raylton Productions Ltd. [1951] WN 376; 95 SJ 381.
Smith v. L. M. S. Ry [1948] SC 125; [1948] SLJ 235.
Howitt v. Alexander [1948] SC 154; (1947) 97 LJ 705.

Appeal against the judgment of the Supreme Court awarding the appellant damages limited to one-fifth of his claim and the order that each party bear its own costs.
G. P. Shankar for the appellant.
C. Gordon for the respondent.

Judgment of the Court (read by Gould V. P.)-- [25 March 1977]

This is an appeal from a judgment of the Supreme Court at Lautoka in an action wherein the appellant was awarded damages against the respondents in the sum of $1,367. The action arose out of a collision between motor vehicles and the actual assessment of damages suffered by the appellant was $6,837. The learned judge however found that the respondents had only to bear one-fifth of the damages as he apportioned the negligence involved as to one-fifth to the respondents and four-fifths to the appellant.

In the Supreme Court the respondents, although they pleaded contributory negligence as a defense, had not filed any counter-claim in relation to their own damage. The action therefore was concerned only with the issue whether the appellant could recover damages for his loss and if so the amount thereof. The result was as we have stated above, and, with regard to costs, the learned judge said that he felt in all the circumstances that each side should pay its own costs.

On the appeal Mr. Shankar for the appellant argued only two matters. He first submitted that the apportionment of only one-fifth of the negligence to the respondents was insufficient. In the second place he argued that the appellant as the successful party was entitled to his costs in the ordinary way.