P NUSSERVANJI AND CO Vs. SSWARTENFELS

JUDGEMENT

(1.) This is an application to review the certificate of the Taxing Master. On the 18th September 1914, the plaintiff filed this suit against the Sections Wartenfels then lying in Bombay harbour to recover the price of coal, supplied to her before she left Bombay in July 1914. The vessel was the subject-matter of certain proceedings in Prize in the Court of the Resident at Aden and had been handed over to the Bombay Government by an order of that Court, dated the 4th September. The Secretary of State, therefore, became defendant on intervention in the suit which was eventually dismissed as against him and the plaintiffs were ordered by the decree to pay his costs of the suit when taxed. The defendant, accordingly, brought in his bill of costs for taxation. On such taxation the plaintiff contended that only such sums as had been disbursed by the defendant s solicitor on his behalf should be allowed and that as the defendant employed a solicitor on a fixed salary and also paid a fixed monthly sum to the Advocate-General, who was expected to conduct all Crown cases on the Original Side of the High Court, all profit costs and brief fees to the Advocate-General should be disallowed.

(2.) It is unfortunate that no evidence was placed on the record to show the exact terms of the arrangement which existed between the defendant and his legal advisers with regard to their remuneration, but it was admitted during the argument before me that the question for decision was whether the defendant was entitled to have his bill of costs taxed without reference to any such arrangement or whether only actual disbursements should be considered on taxation and the remaining charges disallowed altogether. The law to be applied is the common law of England.

(3.) The identical question arose in Azimulla Saheb v. Secretary of State for India 15 M. 405 confirmed on appeal in the case of Muhammad Alim Oollah Sahib v. Secretary of State for India 17 M. 162; and it was decided that an arrangement between Government and their solicitor, whereby the latter receives a fixed salary and in addition the costs awarded to Government in any litigation, would not affect a party condemned to pay costs to Government. It cannot be disputed that at common law costs are awarded to a successful party as an indemnity for the expenses legitimately and reasonably incurred in fighting the action. As stated by Bramwell, B., in Harlod v. Smith (1860) 5 H. & N. 381 : 29 L.J. Ex. 141: 6 Jur. (N.S.) 254 : 1 L.T. 556 : 8 W.R. 447 : 120 R.R. 648, costs as between party and party are given by the law as an indemnity to the person entitled to them; they are not imposed as a punishment on the party who pays them nor given as a bonus to the party who receives them. Therefore, if the extent of the damnification can be found out the extent to which costs ought to be allowed is also ascertained.