The question was the extent to which a judge at first instance had discretion over costs under the rules as they were at the time.
Lord Coleridge , C.J. said at page 376.
Yet in those cases, as in the present, the discretion to be exercised was a judicial discretion to be exercised on legal principles, not by chance medley, nor by caprice, nor in temper.
Page 380 the following passage appears,
I am quite conscious that cases may be put in which it seems strong to say that there is to be no appeal from discretion; judges, even the highest, are but men; and as men they may make mistakes, nay, I do not deny that they may unconscientiously misuse the great powers entrusted to them. But I answer, in words which I have used before, and which I repeat only because I can find none better to express my own meaning:—in the matter of costs “the statute seems to me for convenience and for the conduct of business to trust the judges; to assume that they will act with conscientiousness and in good faith. It is not suggested here that there was want of either; but if there were in any supposable case such a want, it is, I think, the least of two evils and better on the whole that now and then a wrong order should be made, than to do violence, as I think we should, to the language and intention of the statute by allowing an appeal in a matter utterly unsuitable to it, and committed by Parliament itself to the conscience of the judges:” Ormerod v. Todmorden Mill Company 8 Q. B. D. 664 .
And at page 382 concludes with,
I make no apology for the length of this judgment. The question is important, and I am anxious that it should be fully considered. I make none either for the strength of some of the expressions which I have used. If I have spoken strongly it is because I have felt strongly. It cannot be necessary to disclaim all intentional offence. For the Court of Appeal I have, as every lawyer must have, deep and genuine professional respect. But I think that in their recent decisions on this matter they have unnecessarily, and therefore mischievously, interfered with the discretion of the judges. I do not speak of their dignity and independence. These are personal, and may exist and be displayed as well by the youngest magistrate of the smallest borough, as by the Lord Chancellor himself. But I speak of an interference which, if unnecessary and uncalled for, is a practical impediment to the due administration of justice, lessens the authority, and therefore the usefulness, of the judge, fetters the free and conscientious exercise of that discretion which, in right hands and rightly used, is one of the most precious as well as the most powerful weapons in the armoury of justice, and adds to the difficulties and expenses of the suitor, already grievous to be borne. I was brought up under a system in which discretion when given was practically absolute. It was the unbroken tradition of Westminster Hall. I believe that system worked justice and saved expense. I hope I may be forgiven if, with what energy remains to me, I strive after many years’ experience and drawing near the close of my judicial career, to preserve this unfettered discretion which, in my opinion, was given me by Parliament, and which I have never, at least intentionally, abused.
Edited for ease of reading. Of historic interest.