What is the effect of the Order of 1913 on a plaintiff’s subsequent costs?

Saskatchewan, Canada


The following excerpt is from Murdoch v. Minneapolis Threshing Machine Co., 1921 CanLII 76 (SK CA):

In Davies v. Edinburgh Life Assur. Co. [1916] 2 K.B. 852, 85 L.J.K.B. 1662, it was held that, while the new rule gave the Judge power to deprive the plaintiff of his costs of the issue as to liability, it gave him no power to make him pay the defendant’s costs of an issue on which the plaintiff had succeeded. The effect of [the new rule (b)] is to prevent the plaintiff from obtaining the subsequent costs of the issue upon which he succeeded without the certificate or expression of opinion from the judge that he is satisfied that there were reasonable grounds for not accepting the sum paid in. The plaintiff did not obtain that certificate in the present case, therefore he is unable to obtain the subsequent costs of that issue. But his complaint is, and it seems to me well-founded, that this is no reason why the defendants should have as against him the costs of the issue on which he succeeded at the trial. They certainly would not have obtained them before the Order of 1913. On the contrary, the plaintiff would have obtained these costs against the defendants. The effect of the alteration in the rule is to prevent a plaintiff obtaining these costs without a certificate, but it does not give these costs to the defendants. [Davies v. Edinburgh Life Assur. Co., supra, per Swinfen Eady, L.J., at p. 865.]

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