if each is to pay a moiety of the costs of the reference, CHAP. XIV. the costs of both will be brought as it were into hotch

pot and half paid by each party. (Day v. Norris, 1 Dow., N. S. 353.)

The payment of costs is enforced in the same manner as any other part of the award.

In a reference under the L. C. C. Act, 1845, all the costs of and incident to the arbitration are to be borne by the promoters, unless the arbitrators award the same or a less sum than shall have been offered by the promoters [in respect of the same subject-matter (Miles v. Great Western Rail. Co. [1896] 2 Q. B. 432), before the arbitrators on both sides have been appointed (Re Gray and North-Eastern Rail. Co., 45 L. J., Q. B. 818; 1 Q. B. D. 696), and not withdrawn (Foster v. Sheffield Corporation, 72 L. T. 549)]; in which case each party is to bear his own costs incident to the arbitration, and the costs of the arbitrators are to be borne by the parties in equal proportions. (Sect. 34.) The costs become payable within a reasonable time after the award has been made, and the execution of the conveyance is not a condition precedent to the right to recover them. (Capell v. Great Western Rail. Co., 52 L. J., Q. B. 345; 11 Q. B. D. 345.)

By the Lands Clauses (Taxation of Costs) Act, 1895, the costs of and incident to the arbitration and award shall, if either party so requires, be taxed by one of the masters of the Supreme Court. (58 & 59 Vict. c. 11, s. 1.) The assessment by a master is not a condition. precedent to the claimant's right to bring an action for such costs, where the right to costs is disputed. (Metropolitan District Rail. Co. v. Sharpe, 50 L. J., Q. B. 14; 5 App. Cas. 425.) The master's taxation is not subject to review by the court. (Re Sandbach Charity Trustees, 47 L. J., Q. B. 10; 3 Q. B. D. 1.) This Act is not retrospective (Doulton v. Metropolitan Board of Works,

Costs under
L. C. C. Act,

1845.

CHAP. XIV. L. R., 5 Q. B. 333; 39 L. J., Q. B. 165), and applies only to a reference purely within the L. C. C. Act, and not where the reference embraces other matters. (Ib.) The parties may contract themselves out of the Act, and agree to have the costs ascertained in some other manner than by the master's taxation. (Wombwell v. Corporation of Barnsley, 36 L. T. 709.)

Costs under
Public Health
Act, 1875.

Costs of reference at quarter sessions.

Under the Public Health Act, 1875 (38 & 39 Vict. c. 55), the costs of and consequent upon the reference are in the discretion of the arbitrator. (Sect. 180, sub-sect. 13.) If he neglect to deal with them, the award will be remitted to him for that purpose. (Peake v. Finchley Local Board, 57 L. T. 882.) This does not apply to a reference as to the assessment of compensation in respect of lands taken by a local board under the L. C. C. Act, over which the arbitrator has no discretion. (Ex parte Rayner, 47 L. J., Q. B. 661; 3 Q. B. D. 446.)

The costs allowed under both Acts are party and party costs, and not as between solicitor and client. Cowdell, 31 W. R. 335; 52 L. J., Ch. 246.)

(Re

Under the Railways Clauses Act, 1845, the costs are left to the discretion of the arbitrator; and so, subject to the agreement of the companies, are the costs of an arbitration under the Railway Companies Arbitration Act, 1859.

When an order of reference in an appeal at quarter sessions is silent as to costs, the arbitrator has no power over the costs of the appeal (West London Rail. Co. v. Fulham Union, 39 L. J., Q. B. 178; L. R., 5 Q. B. 361); nor can any subsequent court of quarter sessions. order them, though the appeal may have been regularly adjourned from session to session (R. v. JJ. Middlesex, L. R., 6 Q. B. 220; 40 L. J., M. C. 109); nor, in a like case, can the court of quarter sessions itself order the payment of the costs of the reference. (R. v. JJ. West Riding, 34 L. J., M. C. 142; 13 W. R. 738.)

If the order of reference give the arbitrator power CHAP. XIV. over the costs, and he deals with them in his award, the taxation may take place after the sessions at which the award is entered as the judgment of the court are over, if such be the usual practice, and no objection to that course is raised at the time. (Southampton Gas Light Co. v. Southampton Union, 46 L. J., M. C. 238; L. R., 2 Q. B. D. 371.)

SECT. 4.-Taxation of Costs.

We have seen (ante, p. 241) in what cases costs may When costs be taxed by the officer of the court, namely, where there may be taxed. is a submission within the meaning of the Arbitration Act, 1889, or a reference by order of court, and the arbitrator has not awarded a gross sum for costs, but costs generally, with or without any express direction as to their being taxed.

Formerly, the party in whose favour the award was made, was not entitled to have his costs taxed until the time had expired within which it was open to the unsuccessful party to move to set it aside. (Hobdell v. Miller, 2 Scott, N. R. 163.) But now, "costs may be taxed on an award notwithstanding the time for setting aside the award has not elapsed." (R. S. C. Order LXV., r. 15.)

May be taxed though time for setting aside the

award has not

elapsed.

taxation.

The usual one day's notice of taxation, together with Notice of a copy of the bill of costs, must be given. (R. S. C. Order LXV., r. 16.)

The costs will be taxed as between party and party unless the arbitrator, having authority to do so (ante, p. 240), order otherwise.

When an action is referred, and the plaintiff recovers When costs a less sum than sufficient to entitle him to costs under dependent section 116 of the County Courts Act, 1888, or only cate.

upon certifi

CHAP. XIV. sufficient to entitle him to costs according to the county court scale under R. S. C. Order LXV., r. 12, his right to costs will depend upon the certificate given by the arbitrator. (Smith v. Hailey, 42 L. J., Ex. 5; L. R., 8 Ex. 16.) The plaintiff's solicitor should therefore, by way of precaution, take care that the submission, or order of reference, express that the arbitrator shall have power to certify as a judge might. (Wallen v. Smith, 5 M. & W. 159; Lund v. Hudson, 1 D. & L. 236; Elleman v. Williams, 2 D. & L. 46; Astley v. Joy, 9 A. & E. 702.)

Costs of reference.

Claim and counterclaim.

Costs of witnesses.

The costs of the reference, when they are not to be treated as costs in the cause, are taxed without reference to the amount awarded. (Holland v. Vincent, 23 L. J., Ex. 78; 9 Ex. 274; Nicholson v. Sykes, 9 Ex. 357; Street v. Street [1900] 2 Q. B. 57.)

The master must tax the costs according to the language of the award. And the court will sometimes, when there is a difficulty in construing the legal effect of an award, direct the master how the costs are to be taxed. (Reynolds v. Harris, 28 L. J., C. P. 26; 3 C. B., N. S. 267.)

A claim and counterclaim are for the purposes of taxation treated as separate actions, and the costs in each taxed in favour of the successful party, subject to a deduction in respect of the costs of any issue on which he has not succeeded (Shrapnal v. Laing, 20 Q. B. D. 334), and only costs actually occasioned by an unsuccessful counterclaim can be charged to the defendant; and the general costs of the action must not be apportioned between an unsuccessful plaintiff and the defendant, but must all be paid by the plaintiff. (Atlas Metal Co. v. Miller [1898] 2 Q. B. 500.)

The same allowance is made for witnesses attending before an arbitrator as upon the trial of a cause at nisi prius. (Dax, Pr. 250.) Where a witness is rejected before the arbitrator, his costs will not be allowed on

taxation. (Galloway v. Keyworth, 15 C. B. 228; 23 CHAP. XIV. L. J., C. P. 218.)

The costs of the attendance of counsel will be allowed Fees to where it is proper counsel should attend. It is the counsel. general practice of the court not to allow the costs of more than one counsel attending the arbitrator on each side, in an ordinary reference (Hawkins v. Rigby, 29 L. J., C. P. 228; 8 C. B., N. S. 271); but there is no inflexible rule, and if the case be of great importance or difficulty, and two counsel attend, their fees will be allowed. (Sinclair v. Great Eastern Rail. Co., 39 L. J., C. P. 165; L. R., 5 C. P. 135; Orient Steam Co. v. Ocean Marine Co., 35 W. R. 771.) But the costs of shorthand writers' notes for the use of counsel will not be allowed, although it may be a case in which a second counsel would be allowed for. (Croomes v. Gore, 1 H. & N. 14; 25 L. J., Ex. 267; Wells v. Mitcham Gas Co., 48 L. J., Ex. 75; 4 Ex. D. 1.)

Formerly, the practice of the common law courts was to disallow the expenses of qualifying a witness to give evidence, while in the Chancery courts such expenses were allowed. The latter practice now obtains in both divisions of the High Court. By Order LXV., r. 27, sub-r. 9, of R. S. C. 1883, in taxing costs, "such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence," are to be allowed. This would include the fees of surveyors, for time employed in examining and surveying premises to enable them to give evidence at the trial (Mackley v. Chillingworth, 46 L. J., C. P. 484; 2 C. P. D. 273); and of scientific witnesses getting up the case. (Smith v. Buller, 45 L. J., Ch. 69; L. R., 19 Eq. 473.) It would also include the costs of an accountant employed to investigate accounts, such as were disallowed in Nolan v. Copeman, (42 L. J., Q. B. 44; L. R., 8 Q. B. 84); and the fees of an antiquary, for searching after and translating ancient

Costs of quali ness to give fying a witevidence.