Scottish Court of Session Decisions

_________________ Footnote _________________

* “In obedience to the foregoing remit, the auditor humbly reports that he is not aware whether any or what rule has ever been laid down in the Jury Court as to expenses in similar cases to the present, but he has taxed accounts in various cases somewhat similar upon the same principles that have been applied to this case, and he is not aware that his reports in these cases were disapproved of by the Court, or rather, in consequence of no second remit having been made to him to reconsider his reports, he is led to believe that the principle which had been adopted had received the sanction of the Court.

“The objection taken by the defenders to the auditor's reports in this case seem to resolve themselves into this, that a different rule has been adopted in taxing the account of the pursuer from what has been followed in regard to the accounts of the defenders. That is, that although by the interlocutor of 11th March, 1831, under which the accounts were taxed, the pursuer was found entitled to the expenses of the second trial, and the defenders were found entitled to the expenses of the third trial, the pursuer has been allowed certain expenses which properly belonged to the first trial, while the defenders have not been allowed any part of the expenses which were incurred by them in relation to either the first or second trials. But the auditor thought that he had satisfactorily explained to the agents of the defenders, at the time of taxing the accounts, the reason for the distinction between the two cases, viz. That the pursuer has been found entitled, under the interlocutors which have been pronounced, to the expenses incurred by him both of the first and second trials, and that it therefore appeared to him that under one or other of these interlocutors, the pursuer was entitled to the whole expenses of both these trials. Now, in taxing the accounts of the expenses of the first trials, various articles were disallowed, on the ground that these would be available to him on the second trial, and the Court having now found the pursuer entitled to the expenses of the second trial, the auditor was humbly of opinion that the pursuer was in justice entitled to the expenses which had been disallowed from the account of the first trial, on the ground that has been mentioned.

“But the case of the defenders is widely different. A verdict was given against them both on the first and second trials, and they were found liable in the expenses incurred by the pursuer in both. It appears to the auditor, therefore, with great deference, that the defenders cannot now get from the pursuer any part of the expenses incurred by them relative thereto. This would be to allow both parties the expense of the same proceedings,—a principle which, as far as the auditor is aware, has never been recognised in any case. In order to make the cases of the pursuer and defenders parallel, it would be necessary to suppose that neither party had been allowed the expenses of the first trial, and that the pursuer had been allowed the expenses of the second trial, and the defenders those of the third. In this case they would have been in pari casu, and the auditor would have considered it his duty to deal with the accounts of both parties precisely on the same principle—that is, he would not have allowed either party any part of the expenses of the first trial, but confined the account of the pursuer to the expenses of the second, and those of the defenders to the third trial; and the reason for allowing the pursuer any part of the expenses of the first trial was merely, as has been already stated, that he considered him fairly entitled, under one or other of the interlocutors which have been adverted to, to the proper and necessary expenses both of the first and second trials. If this view of the matter, however, shall not meet with the sanction of the Court, it may be easily disposed of by disallowing that part of the expenses of the first trial which availed at the second, and which have now been sustained, amounting to £21, 8s. 10d.

“With regard to the objection stated by the defenders that the auditor has disallowed from their accounts ‘the expenses of the record, issues, and other expenses which were serviceable to them on the third trial of the cause, as well as the expenses incurred in the Court of Session and Jury Court in setting aside the first and second trials, and obtaining the third trial, and those incurred in resisting the pursuer's demand for expenses under the interlocutor of the Jury Court of 19th May, 1829,’ the auditor has only to say, 1st, That none of these expenses fall under the interlocutor of the Court of 11th March, 1831, finding ‘the defenders entitled to the expenses incurred by them on the third trial of the cause;’ 2d, That none of these expenses have been allowed to the pursuer, although he has been found entitled to the expenses incurred by him both on the first and second trials, and although he seems to have quite as good a right to claim them; and 3d, That the auditor is not aware of its ever having been held by the Court, that where a party has been found entitled to the expenses incurred on a trial, that party is entitled to claim the expense of making up the record, adjusting the issues, or any other expenses of the description now contended for by the defenders.

“When the Judges of the Jury Court intended that a party should get such expenses, an interlocutor was pronounced finding him entitled to expenses generally incurred both in the Court of Session and the Jury Court. This was the usual phraseology of an interlocutor, and when only ‘the expenses incurred on a trial’ were found due, the auditor has always considered it as a limitation of the expenses to those applicable to the trial, and has taxed the account on the same principle as has been adopted in the present case, which, it will be observed, has been applied as well to the pursuer's account as to those of the defenders; and if it should be held that under the interlocutor of the Court the defenders are entitled to the expense of the record, issues, &c., it is difficult to see upon what principle the pursuer can be denied the same expenses.”