Costs and fees-Sanctions for payment-Judgement for other party cannot be
sanction for non-payment of fees

When a defendant is ordered to pay fees, and where a date has been
fixed for hearing, and the defendant fails to pay the fees, the court cannot
give judgement for the plaintiff disregarding the merits of the case; instead

* Court: Bell C.J., Owen and David-Davis 11.

where the situation warrants the court should use other powc;rs to . enforce
its orders.

Civil Justice Ordinance 1929, Order 21, rule 1.

Appeal

November 21, 1929. Bell C.J.: The facts of this, case are as
follows: The plaintiff claimed a sum of money on a promissory note.
The defendant set up a defence that ,by a verbal agreement between

. the plaintiff and him, only 40% of the sum due was payable. The
advocate for the plaintiff submitted that the defendant had disclosed
no defence. The learned judge apparently thought the same, but
making some reference to the Court of Appeal, decided to allow the
defence.' If it was meant that even supposing the defendant proved
his contentions he would have no good defence in law, -then it seems to
me that this is an issue of law which must be decided after hearing
arguments. However this point is not material to the present appeal.
The court then framed an Issue and ordered the defendant to pay a sum
of £E.25 into court within seven days and also to pay within the same

 period the hearing fees on the amount in dispute.

No date for hearing was fixed, but after some discussion the case
was adjourned until the following day in order that the defendant

 might file interrogatories.                                                                                  .

On the following day, April 16th, the court made the following
order: Defendant must pay fees on the application (I assume on
the application to submit interrogatories) and the application must be
on a proper petition. Hearing will be on May 7, 1929.

The Court added "In the event of defendant failing to comply
with any of the above orders, Mr. Claxton on behalf of plaintiff
to be at liberty to apply that judgement be signed in his favour."

On April 20th the defendant applied to the court asking that
as the h ring was not until May 7th he might be given until May 5th
for the payment of the fees and of the £E.25. On this application
the/learned Judge wrote, "I have told him so long as he brings the
fee's he can wait until two days before hearing for paying the £E.25."

On April 24th both parties appeared before the court., The
plaintiff stated that the fees had not been paid; so ,in terms of the
above order he asked for judgement. The defendant said that he
understood the order to be that he must pay the fees at least two days

before the date fixed for hearing. He then offered to pay the fees
forthwith. The court passed a decree for the plaintiff.

At the hearing of the appeal much argument has been directed
to the question of whether or not the defendant understood the order
and to showing that the order. was ambiguous.

On a perusal of the record of April 16th only, there may be
some ground for saying that the order of that day was ambiguous
and that it is doubtful whether it refers to the payment of court fees,
as ordered on the previous day, or to the matters which are recorded
immediately above it. But from a consideration of all the proceedings
I see no reason whatever to doubt that the defendant thoroughly
understood the date fixed by the court for the payment of the fees
and the consequences which the court said would follow, if he failed
to pay on the date fixed. The appellant thus has no merits. He
disobeyed an order of the court possibly through habitual procrastina-
tion, possibly in the hope that- the court would overlook the delay as
the courts in the country often do when it is a matter of doing a
thing within a specified time. Nevertheless the question remains
whether the defendant's disobedience ought to have been followd by
a decree in the plaintiff's favour disregarding the, defence.

Hearing fees are normally payable by the plaintiff and it is on
the assumption that they are payable by the plaintiff that I consider the
matter first.

The procedure contemplated by the rules in .my opinion is that
the court shall call upon the plaintiff to pay the hearing fees as
soon as the amount has been ascertained, and until he pays them the
court shall take no further steps in the action.. In the existing Civil.
Justice .Ordinance this is provided for in Order XXI, rule 1 and,
so f~1 as appears; it is the procedure normally followed.

There is nothing contrary to proper procedure in the court fixing

-a date for the payment of fees and fixing a subsequent date for the
actual hearing conditional upon the fees having been paid as ordered.
Such a course may be necessary for the protection of the defendant
in order that he may not go to the expense of preparing his defence
when the case will not come on for hearing. If the fees are not
paid as ordered, the order for the hearing on the subsequent date
ceases to be operative and the suit stands adjourned until one of the
parties applies.

H the subsequent date was fixed without any condition as to
the payment of fees beforehand, the suit would come on for hearing
on that day and would be heard if the plaintiff paid the fees before
the hearing and would be liable to be dismissed if he had not.

The defendant can of course apply for a date to be fixed for
hearing and if the plaintiff fails to pay the fees before or on such
date, the court will be justified in dismissing the suit for want of
prosecution.

Moreover to meet the case of a dilatory plaintiff the court can
fix the date for hearing on the same date as is fixed for the payment
of fees, adjourning the case if need be after the fees have been paid.

Although' hearing fees are normally payable by the plaintiff, the
court can, for sufficient reason, which ought not to be merely a pre-
judgement of the defence, order the defendant to. pay the bearing
fees. The defendant then stands in the place of the plaintiff in the
proceedings which have just been discussed.

It follows that if the defendant fails to pay the fees on the date
ordered, no further steps. towards his defence such as summoning
witnesses will be taken, and if this date is the date fixed for- hearing
he will be liable to have his defence struck out. But where a sub-
sequent date has been fixed for hearing, the order fixing such date
does not cease to be operative because the plaintiff is ready to go on
with his suit. The result is that the suit would come on for hearing
on the day fixed whereas if the defendant had not paid his fees he
would be liable to have his defence struck out.

The conclusion is that where a date has been fixed for hearing,
the suit cannot be disposed of finally before that date in consequence
of the mere omission by one of the parties to pay the fees on a day
which has not been fixed for hearing.

In the case now before the court the defendant did actually
offer to pay the fees on the day on which the plaintiff applied for
and obtained a decree. H the defendant had been allowed to pay
the fees then, the plaintiff would not have been prejudiced in any
way for the day fixed for hearing was still distant.

Therefore, in my opinion, the court ought to have waited for the
day fixed for hearing before striking out the defence for non-payment
of fees, and to have punished the disobedience of the defendant by

making him pay costs. The result is that the appeal must be allowed
and- the case remitted for hearing.

As the appellant is at fault for having disobeyed the court's
order the costs of this appeal shall abide the event.

. Owen J. Formerly by the fees rules and now by Order XXII
rule 1 it is prescribed that certain fees shall be paid upon admission
of the complaint and that the balance shall be paid on hearing.. H
that balance is not paid the plaintiff's claim or the defendant's defence,
as the case may be, will not be heard, and judgement may be given
in favour of the other party. Normally therefore, the party whose duty
it is to pay this balance, can leave the act of payment to the moment
before the hearing is fixed to begin,

Sometimes however the court; for reasons that are not (or should
not be) connected with the merits of the issues between the parties,
directs that the plain _tiff (or defendant) to pay this balance of fees
within a period which expires some time before the actual date fixed
for hearing. If he does not do so he .is guilty of disobedience to a
court's order, and the point at issue in this appeal, as I understand
it, is whether or not the punishment for that disobedience can take the
form of entering judgement against him forthwith and before the date
which the court has already fixed for the hearing of his case.

On the whole I am of opinion that it should not. When once
the court has fixed the date for hearing, no subsequent order should
be made permitting either party to obtain judgement before that date
except, of course, by consent. The hearing is but a step towards
-judgement, and if the court has deliberately taken upon itself to fix
a date for that step, judgement should never precede it.

The order in this case fixing a limit of time for the payment
of hearing fees was made, I have no doubt, for excellent reasons, but
those reasons could have no relation to the merits of the case. The
court cannot express its opinion of the defaulting party's chances of
success at the hearing by depriving him of a right which is his under
the rules of procedure. If the court had not fixed a day for healing,
the matter would have stood on an entirely different 'footing, but as
it is, and in view of the fact that the disobedience complained of was
in respect of an order which was in a sense. subsidiary to the order
fixing the date of hearing and had nothing to do with the merits of the
case, I am of opinion that the court was only at liberty to wait until