Pooler v Manning, Wilkinson & Challenor, Ltd

• Jurisdiction: Barbados
• Judge: Williams, J.
• Judgment Date: 11 May 1971
• Neutral Citation: BB 1971 HC 4
• Docket Number: No. 255 of 1970
• Court: High Court (Barbados)
• Date: 11 May 1971

High Court

Williams, J.

No. 255 of 1970

Pooler

and

Manning, Wilkinson & Challenor, Ltd.

Appearances:

Mr. Peter Williams for the applicant-plaintiff instructed by J.P. Browne

Mr. J.S.B. Dear, Q.C. for the respondent-defendant instructed by Yearwood & Boyce

Costs - Application for costs made after plaintiff had ended case by indicating acceptance of sum of money in satisfaction of wrongful dismissal claim — Whether court should exercise its discretion to allow costs to be paid after suit has been deserted — Principles applicable.

1 Williams, J. (IN CHAMBERS): This is an application by the plaintiff in this action for permission to withdraw $1,275 paid into court by the defendant and to tax his costs up to the date when this sum was paid into court. The defendant does not object to his being permitted to withdraw the sum, but does oppose he application for costs.

2 A summary of the history of this suit is as follows. The plaintiff brought action against the defendant claiming damages for wrongful dismissal. The defendant in its defence justified the dismissal on the grounds of misconduct and unfitness. The plaintiff delivered his reply on September 16, 1970. On September 25, 1970 the defendant served notice on the plaintiff's solicitor that it had made a payment of $1,275 into court in satisfaction of the plaintiff's claim. On January 6, 1971 the plaintiff's solicitor served notice on the defendant's solicitor that the plaintiff accepted the sum of $1,275 in satisfaction of the claim. The next proceeding in the matter is the application now before the court.

3 Counsel for the respondent opposes an order for costs on two grounds. He submits that the matter has been deserted and that in the circumstance the court cannot make an order if it is contested he also submits that in any event an order for costs should not be made because the plaintiff had been offered the sum of $1,275 in settlement of his claim before he instituted proceedings. He relies on the affidavit of Mr. Gollop to the effect that this offer was on February 14, 1970 and repeated on February 24, 1970. There is nothing to contradict Mr. Gollop's affidavit, and I proceed on the assumption that they were in fact made.

4 As regards the first point, the submission must fail. The reply was delivered on September 16, 1970 and the plaintiff would have had 6 weeks from that date within which to file a request for hearing: See order 32 rr....