Mexborough & Swinton Times, June 15, 1907
Echo of the Denaby Strike.
Question of Costs Raised In The High Court.
Two Counsel or Three?
In the Court of Appeal, on Saturday, Lords Justices Moulton and Buckley had before then the case of the Denaby and Cadeby Main Collieries, Ltd, v The Yorkshire Miners Association and others, which was an appeal by the defendants from a decision of Mr Justice Walton in Chambers and an application to review the taxation of costs by the Master.
Mr S. Evans, K. C., in support of the appeal, said the action was brought not only against the miners Association, but against the free trustees and eight other personal defendants. Three questions arose on this appeal. The first was whether a third Counsel ought to be allowed for the Miners Association in the Court of Appeal. Then as to the personal defendants, there were questions as to whether there ought to be third Counsel allowed them in the court below and in the Court of Appeal.
The personal defendants included Mr Benjamin Picard, who was Chief Secretary of the Association; Mr Cowie, Mr Frith, Mr Halley, Mr Wadsworth, and Mr Parrott.
The action was brought in respect of a big strike in the Yorkshire coalfields, which lasted a long time. Heavy damages were claimed, the amount been £150,000. The action was quite of an unusual character, and that had been found by Mr Justice Walton.
After the verdict job if the Association had to deposit £75,000 in the joint names of two persons in order that in appeal might be brought.
In the court below verdict and judgement was given against the defendants for amounts to be asserting. In the Court of Appeal judgement was entered for the defendants on the judgement of two of the Lords justices. Plaintiff’s went to the House of Lords, and the result was that the judgement of the Court of Appeal was affirmed, so that defendants were entitled to judgement in regard to the whole of the proceedings.
The case took 11 days in the court of first instance, nine days in the Court of Appeal, and six days in the House of Lords. The Justice Walton, who put his decision in writing, saw no reason to vary the Masters decision with regard to the free items now in question.
His Lordship accepted the master’s view that the charges were very unusual, but said he thought it was a very unusual case. He allowed three Counsel for the main defendants and two for the individual defendants in the court below, and allowed two counsel for each of those in the Court of Appeal. The Master said he considered the defence must have been largely in common, and that counsel for the union must to a great extent had been fighting the case for the personal defendants as well.
Mr Evans, KC proceeding said it was not unusual to allow three Counsel in the court of appeal. Before the litigation there was a death struggle between the mine owners and their employees connected with the union. It was a fight as to which would survive. Before the case came on there was a case of Howard v Yorkshire Miners Association. That was an action in which the colliery owners paid £4 a week to a man named Howard – a member of the defendant union to bring an action against the union in order to prevent them giving strike pay to the men, so that the strike might be continued.
That case took four days in the court of first instance and three days in the Court of Appeal. It was carried to the House of Lords. The colliery companies succeeded and the strike pay had come to an end. In that case Howard had 3 Counsel allowed him against the Trades Union.
Mr Lewis KC for the respondents: Not by the Court of Appeal.
Mr Evans, K. C.: Objections were made to the master, but there was no appeal against his order. I submit now, if I may use a phrase, that there ought to be the same sauce for the goose as for the gander.
Continuing, Mr Evans submitted that inasmuch as the main defendants were allowed 3 Counsels in the court of first instance, they should be allowed the same number in the Court of Appeal. With regard to the personal defendants, although it was true to say that some of the issues were common to all the defendants, there were other issues which affected the personal defendants only.
Lord Justice Moulton said that 3 Counsels were an exceptional privilege, and although it might be that the main defendants were entitled to the privilege in both courts, it did not necessarily follow that the same privilege should be extended to the personal defendants.
Mr Evans admitted that it did not necessarily follow, but submitted that having regard to the importance of the case to the personal defendant, they ought to be allowed three Counsel. Those defendants had everything at stake.
Mr Justice Buckley said that the importance of the result of litigation to a party could not justify that party in asking for a larger payment by the other side. Mr Evans contended that the personal defendants could not be said to have acted prudently in employing three Counsel. On the contrary, they acted prudently and reasonably in the matter, having regard to the magnitude and complexity of the case.
Lord Justice Moulton (to Mr Lush): if we came to the conclusion that there ought to be only two Counsel allowed the personal defendant in both courts, and three Counsel allowed the Association in the Court of Appeal, will you object?
Mr Walsh said he must oppose a third Counsel being allowed the Association in the Court of Appeal. A very large sum was involved, because not only were there the fees of the third Counsel, but there was also the expense of preparing his brief and other documents for his use.
A further hearing was adjourned.
Mr Montague Lush, K. C. For the respondents, submitted that both the taxing master and Mr Justice Walton had given sound reason for not allowing what the defendants now claimed, and that no erroneous principle had been acted upon in taxing the costs.
At the conclusion of the arguments, Lord Justice Moulton stated that Lord Justice Buckley and he did not take the same view in regard to this matter, and in the circumstances the appeal had better be entered in the list for hearing before three judges to day.
Mr S. T. Evans: Might I remind your worships that when the case came before the Court of Appeal we had to discuss the whole of the voluminous evidence taken in the court below.
Lord Justice Buckley: The point that arises in my mind is this: in the Court of Appeal, a third Counsel is not wanted at all, in the sense that all the materials are collected. Only two Counsel can address the court, and the assistance of a third Counsel is not wanted.
Mr Evans: That makes it a general principle that in no case should there be three Counsel in the Court of Appeal.
Lord Justice Buckley: I desire to leave that down.
On Tuesday, Mr Montague Lush, K. C., Asked that the matter might send over till Friday next for his personal convenience.
Mr Evans, K. C., for the defendants, made no objection, and there Lordship acceded to the application.