Scottish Court of Session Decisions

Scott ^* raised an action of damages, libelling not only special damage to property, but also injury to his commercial credit. The damages were laid at £500. A record was made up, in which the demand for special damage was insisted in, and it was not till the opening speech at the jury trial that Scott gave up this claim. The jury assessed the other damages at £5. When Scott moved to have the verdict applied, and expenses found due to him, the defenders objected, both on the ground that they had been put to the expense of making up a record, and preparing witnesses, to meet a claim for special damage which had been given up, and also on the general ground, that where a party demands £500 of damages, and only recovers £5, he ought in general to be allowed his expenses, only subject to modification.

Scott answered, that no extra expense had been incurred in making up the record, in consequence of its containing a claim of special damage; that in so far as a claim was made for reparation, on account of injury to commercial credit, the usual practice had been followed of claiming a random sum of damages; and that as the defenders had never made a tender of any sum whatever, he had no alternative but to go on with his action, which occasioned the same outlay for a small as for a great sum of damages.

Lord Moncreiff, before whom the case was tried on circuit, sat along with the Judges of the Inner House when the motion was disposed of. His Lordship stated, that he considered the pursuer entitled to his expenses, but subject to modification. The Court found the pursuer entitled to expenses, reserving power to modify these after the account should be taxed. The account was taxed at £212, of which it was said that £l56 was actual outlay. The question of modification was then discussed.