John Wallis, C.J.
(After discussing the facts) *****
1. There only remains one other question. The learned Judge, in view of the conduct of the 1st defendant of which he takes a very unfavourable view, granted plaintiffs' costs on the higher scale. Rule 40 of the High Court Fees Rules provides 'on special grounds the Court may...order that the fees set forth in the column headed higher scale, shall be allowed.' This rule is adopted from Order LXV, Rule 9, of the Rules of the Supreme Court, which sets forth that fees on the higher scale may be allowed 'if on special grounds arising out of the nature and importance, or the difficulty or urgency of the case the Court or a Judge shall...so order.' Some difficulty was experienced by the Courts in England in interpreting the words which I have read as to what was meant by 'nature and importance or the difficulty or urgency of the case.' Standing by themselves it might have seemed at first sight that they were wide enough to authorise the Court to grant costs on the higher scale where it thought that the conduct of one of the parties to the suit had been particularly reprehensible, or to cover a case in which an unfounded charge of fraud had been made. That was the case in Assets Development Co. Ltd. v. Close (1900) 2 Ch. 717 where not only was an unfounded charge of fraud made, but also the facts required a great deal of investigation and a lengthy trial. It was, however, held by Mr. Justice Buckley in accordance with the previous decisions that these facts were not enough to justify a grant of costs on the higher scale. The learned Judge says: 'I think the meaning of the rule is that it is to apply where the nature and importance or difficulty or urgency of the case necessitates the expenditure of more money,' that is to say, that the special grounds must affect the costs of the litigation. I do not think that the omission of the words, to which I have called attention, in our reproduction of the rule affords any ground for disregarding the restricted construction which was put upon the rule by English Courts, and I think that we should do well to follow the example of the English Courts in limiting the rule as to the power of the Court to award costs on the higher scale on special grounds to cases in which the special grounds are such as to affect the costs of the litigation, and I do not think that that is so in this case. We must, therefore, vary the order of the learned Judge to that extent by reducing the costs to costs on the ordinary scale while otherwise dismissing the appeal with costs.
2. I entirely agree.