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THE LONDON GENERAL OMNIBUS COMPANY AND OTHERS.
[IN THE COURT OF APPEAL.]
1906 Nov. 14.
 1 K.B. 264
BEFORE THEIR LORDSHIPS
COZENS-HARDY and FARWELL L.JJ.
McCall, K.C., and Ernest Charles, in support of the appeal:
Solicitors for plaintiff: Langhams.
Solicitors for the London General Omnibus Company: Hicks, Davis & Hunt.
TORT AND PERSONAL INJURY: Action of Tort – Allegation of Joint Tort – Alternative Allegation of separate Torts –
PRACTICE AND PROCEDURE: Practice – Joinder of Causes of Action –
PRACTICE AND PROCEDURE: Costs – Costs against Plaintiff of successful Defendant – Addition to Costs recoverable from unsuccessful Defendant – Order XVI., rr. 4, 7.
HISTORY AND SUMMARY OF FACTS
The plaintiff was injured by a collision between two vehicles, and brought an action against the respective owners. The statement of claim alleged that the injury to the plaintiff was caused by the joint negligence of the two defendants, and it also alleged in the alternative negligence on the part of each defendant causing the injury. No application was made to strike out either of the defendants, and the case went to trial. The jury found negligence on the part of the defendant first named on the record, and negatived negligence on the part of the other defendant. The judge entered judgment for the plaintiff against the first-named defendant and judgment for the successful defendant, with costs in each case. The judge further ordered that the costs so payable by the plaintiff should be included in the costs recoverable from the first-named defendant. On appeal:-
Held, that after verdict and judgment it was too late to object to the jurisdiction to try the action on the ground that torts were alleged severally against the two defendants.
Held, also, that in an action of tort tried with a jury, in which relief is claimed against two or more defendants in the alternative, there is jurisdiction to direct that costs payable to a successful defendant should be included in the costs recoverable by the plaintiff from an unsuccessful defendant.
Per curiam: After the alteration of r. 1 of Order XVI., following on the decision in Smurthwaite v. Hannay,  A. C. 494, the joinder, in an action of tort, of defendants against whom the right to any relief, in respect of or arising out of the same transaction, is claimed, whether jointly, severally, or in the alternative, is authorized by r. 4 of the order.
Sanderson v. Blyth Theatre Co.,  2 K. B. 533, applied.
Sadler v. Great Western Ry. Co.,  A. C. 450, distinguished.
APPEAL from the judgment of Bray J. at the trial of the action with a jury.
The action was brought to recover damages for injuries sustained by the plaintiff through a collision between an omnibus and a cart. The omnibus belonged to the first-named defendants, the London General Omnibus Company, and the cart to the other defendants, George Trollope & Sons and Colls & Sons, Limited. The statement of claim alleged that the plaintiff had suffered personal injuries by the joint negligence of both of the defendant companies, and, alternatively, that she had suffered such injuries by the separate negligence of each of these companies. Particulars were given in the statement of claim of the negligence attributed to the omnibus company, and also of that attributed to the other defendant company.
The material part of defence of the omnibus company was a denial of the allegation of negligence on their part, either jointly with the other defendants as alleged, or separately. In the particulars they stated that the driver of the cart belonging to the other defendant company was not keeping a proper look-out, and that, so far as the omnibus company were concerned, the collision was inevitable.
The defence of the other defendant company was a denial of negligence on their part and an assertion that the collision was caused by the negligence of the omnibus company.
At the trial the jury found a verdict for the plaintiff for 150l. against the omnibus company, and a verdict for the other defendant company.
Application was made on behalf of the plaintiff that the costs payable by her to the successful defendants should be added to the costs which the omnibus company were ordered to pay to her, and the judgment as finally drawn up contained the following clause: “It is adjudged that the plaintiff recover against the defendants the London General Omnibus Company, Limited, 150l. damages and her costs of this action to be taxed, such costs to include all costs incurred against the London General Omnibus Company, Limited, by reason of there being two defendants, and further the costs she may have to pay the defendants George Trollope & Sons and Colls & Sons, Limited.”
The London General Omnibus Company appealed.
McCall, K.C., and Ernest Charles, in support of the appeal:
The learned judge, in making the order as to costs, purported to act under Order XVI. and the authority of the case of Sanderson v. Blyth Theatre Co. (1) The order relates solely to the joinder of parties, and has no application to the joinder of causes of action, which is dealt with in Order XVIII. In this case two independent causes of action in tort against two defendants, with particulars in each case, have been joined in one action. There is no authority for this in the rules or in decided cases. The allegation of a joint tort against the two defendants does not assist the plaintiff, as is clear from the opinion of Lord Halsbury in Sadler v. Great Western Ry. Co. (2), who said: “But if it were true that the fifth paragraph sets out a joint cause of action, which
I do not think it does, that would not make the case any the better for the plaintiff, because upon that hypothesis he would have joined several causes of action in one count with a joint cause of action in another count which would be equally objectionable.” Other authorities against the joinder of separate causes of action in tort against different defendants are Gower v. Couldridge (3), Thompson v. London County Council (4), and Frankenburg v. Great Horseless Carriage Co. (5), though in the last-mentioned case, in an action against a company and its directors, the joinder was held to be right because there was only one cause of action, namely, the improper issue of a prospectus. Even if the proper course would have been to apply to strike out one of the defendants, the effect of that not being done would be that the action would proceed; but there would still be separate torts alleged against the two defendants, and those causes of action could not be treated, as the learned judge has treated them, as interdependent, so as to entitle him to make one defendant pay all the costs incurred by the plaintiff. Costs can only properly follow a successful cause of action, and the assertion of the omnibus company that they were not liable, but that the other defendants were liable, gave no cause of action. It would follow that the costs of these independent causes of action must be dealt with separately. In each case the costs would follow the event, being governed by the provisions of Order LXV., which deals with cases tried with a jury as this was. The incidence of costs being settled under that order, there was no jurisdiction to make a further order, as was done in this case.
(1)  2 K. B. 533.
(2)  A. C. 450, at p. 453.
(3)  1 Q. B. 348.
(4)  1 Q. B. 840.
(5)  1 Q. B. 504.
Sanderson v. Blyth Theatre Co. (1) was a case of breach of contract, to which Order XVI., r. 4, applies, but the decision cannot be an authority in this case as to the matter of joinder of causes of action. That case was treated in the Court of Appeal as one of joinder of parties, and not of causes of action. If separate actions had been brought in the present case the cost incurred by the plaintiff in the one in which she did not succeed must have been borne by her, and the same consequences ought to follow in the present action. Even if the learned judge had jurisdiction to make the order as to costs, his discretion in the matter is open to review, and the circumstances attending the accident shew that it was wrongly exercised.
[They referred also to Smurthwaite v. Hannay. (2)]
The argument on behalf of the appellants amounts to an objection to the jurisdiction to try the action, but after the case has gone to trial it is too late to raise that point. There may be joinder of defendants in respect of separate causes of action, but subject to the right to apply to strike out one or other of them. What happened in each of the cases cited was that a claim of right to join causes of action was disallowed. As this case has gone as far as verdict and judgment, the jurisdiction of the learned judge over it cannot now be restricted in any manner.
The right to make the order as to costs arises under the Judicature Act, 1890, s. 5. It is not necessary to find an authority for the order of the learned judge in Order LXV.; it is sufficient if Order LXV. does not limit the jurisdiction under the Act of 1890. Sanderson v. Blyth Theatre Co. (1) shews that Order LXV. does not prevent the exercise of the general power to deal with costs and to make such an order as was made in the present case. As Stirling L.J. pointed out (3), the Court of Chancery, in making such an order, was not giving substantive relief by way of indemnity or damages or otherwise, but was exercising its jurisdiction over costs. The Admiralty Court also exercises such a jurisdiction: The River Lagan (1). In that case the jurisdiction was treated as undoubted, and the precedents cited were not merely Admiralty cases.
(1)  2 K. B. 533.
(2)  A. C. 494.
(3)  2 K. B. 533, at p. 543.
There is no decision which binds this Court to say that where two separate causes of action in tort arise out of the same transaction they may not be properly joined. Rule 1 of Order XVI. is an amended rule, which was made in order to remedy the defect in the previous rule indicated by the decision in Smurthwaite v. Hannay (2), and instead of the rule applying to the same relief being sought the new rule is expressly applied to relief arising out of the same transaction. If there was jurisdiction to make the order it was undoubtedly properly exercised. The action was one in which all three parties were interested, the fact of the injury to the plaintiff was not disputed, and the question of liability was fought out between the defendants. Having acquiesced throughout in this course being taken, the omnibus company, who have been found to be liable, are now seeking to get off paying the costs of that inquiry.
[He cited also Honduras Ry. Co. v. Tucker (3); Bennetts & Co. v. McIlwraith & Co. (4)]
Ernest Charles, in reply. The power to deal with costs given by s. 5 of the Judicature Act, 1890, is expressly made subject to the rules, and therefore to the provision in Order LXV., r. 1, as to costs following the event in cases tried with a jury, unless good cause is shewn for a departure from that rule.
This is an appeal from an order made by Bray J. The action was brought to recover damages in respect of personal injuries sustained by the plaintiff. The plaintiff joined as defendants the General Omnibus Company, the owners of the omnibus in which she was a passenger, and the owners of another vehicle which, in her view, took a part in bringing about the collision which caused the injuries of which she complained. Her case was framed in the statement of claim in three ways. Firstly, it was charged that the two defendants by their joint negligence caused the injuries sustained by the plaintiff, and then followed a charge of negligence against each of the defendants separately. In the result there was a verdict for the plaintiff against the General Omnibus Company and against the plaintiff in favour of the other defendants. The learned judge entered judgment for the plaintiff, with costs against the General Omnibus Company, and a verdict for the other defendants, with costs against the plaintiff. Having got thus far, he made an order that there should be included in the costs recoverable from the General Omnibus Company by the plaintiff the costs that she had to pay to the other defendants. The common sense underlying this order is clear, because the learned judge when he made it had before him evidence that, owing to the attitude taken up by the General Omnibus Company, it was reasonable for the plaintiff to join the other defendants.
(1) (1888) 6 Asp. M. L. Cas. 281.
(2)  A. C. 494.
(3) (1877) 2 Ex. D. 301.
(4)  2 Q. B. 464.
That there was jurisdiction to make this order also seems to me to be clear from the provisions of s. 5 of the Supreme Court of Judicature Act, 1890, which is in the widest terms. It runs thus: “Subject to the Supreme Court of Judicature Acts and the rules of Court made thereunder, and to the express provisions of any statute whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and to what extent such costs are to be paid.” The only matter that has been referred to as a suggested qualification, in the present case, of the discretion of the judge to deal with costs is Order LXV., r. 1, as to costs following the event in cases tried with a jury. It does not seem to me that the order of the learned judge involved any departure from that rule, which he has followed and superadded something which comes within the wide powers given by the Act of 1890. I do not take my stand altogether on my personal judgment in this matter, because the point was dealt with by Stirling L.J. in the case of Sanderson v. Blyth Theatre Co. (1), where he said: “This particular form of order was, as Jessel M.R. calls it, ‘machinery’ for properly disposing of the costs, and this is shewn by the change in the form of order when, as in the case of the Attorney-General, the plaintiff could not be ordered to pay costs. Having regard to this and to the express directions of Order LXV., r. 27, regulation 37, I think that the term ‘costs’ in s. 5 of the Judicature Act, 1890, ought to be read as including costs which a particular party may be ordered to pay in the first instance and then to have over against another.” In my opinion the objection taken upon the ground of want of jurisdiction to the order of the learned judge fails. Upon the merits the order seems to me to be clearly right, and no argument has been brought before us to shew that it was not so.
(1)  2 K. B. 533, at p. 543.
An elaborate argument has been addressed to us upon another point which is said to afford a ground for impugning the order, the point being that there had been a misjoinder of separate causes of action. If in fact there was such a misjoinder, it was for the defendants to take steps to remedy it; no such steps were taken, and it is much too late to complain of the irregularity if there was one. I see no connection between the right to make such an order as that made in the present case and a technical error which could have been remedied at the proper time.
As to the cases cited to support the suggestion of misjoinder of separate causes of action, I do not think that they touch this case. There is here an averment of a joint tort by both sets of defendants, with a separate charge of tort against each. In Sadler v. Great Western Ry. Co. (1) there was no averment of a joint tort, but an attempt was made to combine in one action a claim for damages arising from separate torts of two defendants.
In Smurthwaite v. Hannay (2) there were a number of plaintiffs whose causes of action were separate and distinct, and it was held that they could not be joined in one action under Orders XVI. and XVIII. Or otherwise. The case did not come within the old Order XVI., r. 1, which has been qualified by a subsequent alteration.
The case of Sanderson v. Blyth Theatre Co. (3), to which I have already referred, seems to me to be conclusive in this matter. That was a case arising out of contract, and the plaintiff claimed relief against the defendants alternatively. It is said that there is a distinction in this respect between the law applicable to torts and that applicable to contracts, but I cannot see any reason for such a distinction. Rule 4 of Order XVI. does not suggest such a distinction, while the wording of other rules of the same order, as for instance r. 7, is applicable to a claim for reparation of a wrong done. The application of r. 4 to a particular case does not arise upon proof of a joint or other wrong, but upon the state of mind of a plaintiff who does not know exactly whether an injury of which he complains arose from the joint act of two parties or the sole act of one or other of them. Rule 4 of the order permits the joining as defendants of all persons against whom a right to relief is “alleged” to exist and recovery of judgment against such one or more of them as may be “found” to be liable. I can see no reason for limiting this rule to cases of contract, which would result, in a case like the present, in the necessity upon the plaintiff to bring three actions, one against both sets of defendants and one against each set separately. I think that the objections to the jurisdiction of the learned judge to make the order fail, and that there is no ground for saying that he exercised his discretion otherwise than rightly.
(1)  A. C. 450.
(2)  A. C. 494.
(3)  2 K. B. 533.
The appeal must be dismissed.
COZENS-HARDY L.J. I am of the same opinion. On the main point of jurisdiction to try the action it is enough to say that the objection comes too late. It is not open, after verdict and judgment which the defendants are not seeking to upset, to raise the question of jurisdiction to try the action.
A confusion seems to me to have arisen from not recognizing the material alteration in Order XVI., r. 1, arising from and after the decision in Smurthwaite v. Hannay. (1) The original rule was, “All persons may be joined as plaintiffs in whom the right to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative”; and it was held that the rule contemplated, not any right to relief, but the single cause of action and relief in respect of it. The new rule of October, 1896, is markedly different. The words are, “All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative.” I think it is difficult to say that, since the amendment of that rule, the order does not deal with joinder of causes of action but deals only with joinder of parties.
(1)  A. C. 494.
The facts of the case are that there was a judgment for the plaintiff against the General Omnibus Company and a judgment in favour of the other defendants. Costs followed in each case, but the question is what is the meaning that the learned judge was entitled to give to the term “costs” in s. 5 of the Judicature Act, 1890. The Master of the Rolls has referred to the opinion of Stirling L.J., in giving judgment in Sanderson v. Blyth Theatre Co. (1), that it includes costs which a particular party may be ordered to pay in the first instance and then to have over against another; but I may refer also to the judgment of Romer L.J. in the same case (2), in which he said: “This jurisdiction has been frequently exercised in Chancery in proper cases, and can, of course, be exercised in the King’s Bench Division. The costs so recovered over by the plaintiff are in no true sense damages, but are ordered to be paid by the unsuccessful defendant, on the ground that in such an action as I am considering those costs have been reasonably and properly incurred by the plaintiff as between him and the last-named defendant.” That was the principle adopted by the learned judge in this case, and in my opinion he had ample jurisdiction to make the order, and good ground for the exercise of his discretion in making it.
If the argument as to the want of jurisdiction of the learned judge to try this action were to prevail, the result would be that a person in the position of this plaintiff would be obliged to bring three actions upon the same facts. I do not think that we are driven to a conclusion which would have that result, because the decision in Sanderson v. Blyth Theatre Co. (1) covers this case so far as the right to direct how the costs are to be borne is concerned, and the decision in Frankenburg v. Great Horseless Carriage Co.(2) covers it in the matter of the joinder of torts. In that case, Lindley M.R., after pointing out that as against the company the plaintiff was not asking for damages, but for rescission of contract, continued: “The company may, however, be in such a state of impecuniosity that it cannot give him his money back, and therefore he asks for damages against the directors. That, no doubt, is a different species of relief; but to say there should be as many actions as there are classes of defendants would be to render these actions unmaintainable.”
(1)  2 K. B. 533, at p. 543.
(2) Ibid. at p. 539.
As to the order to add the costs paid by the plaintiff to the costs recoverable by her from the General Omnibus Company, the jurisdiction to make such an order is incidental to the right to try the action, and it is impossible to attack the former without attacking the latter. The defendants are therefore logically driven to say that, as the torts alleged against the two sets of defendants could not be joined, the action should have been dismissed. Whatever view may be taken as to the right to join claims against the two sets of defendants, it is obvious that it is quite impossible at this stage of the litigation to allow the question of misjoinder to be raised.
(1)  2 K. B. 533.
(2)  1 Q. B. 504.