Page:The copyright act, 1911, annotated.djvu/90

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78

��Copyright Act, 1911.

��6(2).

��Grounds oi which defendant may be deprived of costs.

��Cost of issues.

��Decision of judge on question of costs not appealable.

��of the j)ai"ties should be done, is not a good ground for depriving him of his costs {m). Neither is the fact that a jjlaintifl; has commenced proceedings without previous communication, or that the tlefendant was an innocent infringer, necessarily good ground for depriving the jjlain- tiff of costs (w). When the action is one that, in the opinion of the judge, ought to have been brought in a county court, he may give a successful plaintiff costs upon that scale only (o).

A successful defendant ma}' be refused liis costs if he has been guilty of improper conduct of his case (p) . If the defendant has brought the action on himself by his own indiscretion, lie may be refused costs, as where he has allowed his name to be associated with a book as printer or publisher, although in fact he has not printed the book or caused it to be printed [q). Costs have also been refused to a successful defendant because he had made an illiberal use of the plaintiff's work without acknowledgment (r), or because he succeeded upon a technical point only(s).

Where a party is generally successful, but fails upon some distinct issue raised in the case, h© will, as a rule, be entitled to the general costs of the action, but the other party will get the costs of the issue or issues on which he has been successful (^).

Probably, the only effect of this sub-section is to make the order of the judge as to costs unappealable. A judge ought to apply a judicial mind to the quastion of costs, and should only deprive a successful party of costs upon grounds similar to those upon which the judges now act in exercising their discretion under the rules of Court.

��(m) Civil Service, cj'c. v. General Sten/Ji, [1908] 2 K. B. 756.

(«) Wittman v. Oppenheim (1884), 27 Ch. D. 260; Smith v. Baihj News (1910), Cop. Cas. 190.5-10, p. 302, The Times, December 2.

(o) Clarke v. Midland Express (1908). Cop. Cas. 1905-10, p. 139.

Ip) Cobbett V. Woodward (1872), L. R. 14 Eq. 407, 414 ; 3Iaplc v. Junior Army and Navij Stores (1882), 21 Ch. D. 369, 373; Piddington v. Philip (1893), 14 N. S'. W. R. Eq. 159.

[q) Kelhj's Directories v. Gavin ^ Lloijds, [1901] 1 Ch. 374 ; Booth v. Edward Lloyd (1910), 26 T. L. R. 549.

(r) Pike V. Nicholas (1869), L. R. 5 Ch. 251 ; Cobbett y. Woodward (1872), L. R. 14 Eq. 407.

(«) Liverpool General Brokers V. Commercial Press, [1897] 2 Q. B. 1.

\t) Metzler v. Wood (1878), 8 Ch. D. 606; Page v. Wisden il869), 20 L. T. 435.

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