Scottish Court of Session Decisions

The pursuer brought an action against the defender claiming £500 of damages for slander and wrongful apprehension on a charge of theft. The jury, after deliberating for three hours, found for the pursuer by a majority of 11 to 1, and assessed the damages at £10. The defender then moved for a new trial on the ground that the verdict was contrary to evidence, and obtained it, the question of expenses being reserved. The Lord Ordinary fixed the 3d of July for the new trial. Thereupon the pursuer put in a minute abandoning the action, consenting that the result of the second trial, assuming it to have taken place, should be held to be a verdict for the defender, and that the defender should be assoilzied. Each party moved for expenses, the pursuer on the ground that he had been successful in the first trial, and the defender because by his minute the pursuer had confessed himself to be wrong from the commencement, and that the action was one which never should have been brought. The Lord Ordinary pronounced the following

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interlocutor, which has been acquiesced in:—

“ Edinburgh, 3 d July 1866.—The Lord Ordinary having heard counsel and made avizandum, finds the pursuer liable in the expenses of process, including those incurred by the defender in the trial which took place on the 6th day of March last; allows an account of such expenses to be lodged, and remits the same to tax, and to report.

(Signed) Charles Baillie.

Note.—The Lord Ordinary is of opinion that on the footing on which he is now called on to deal with this case he must find the pursuer liable to the defender in full expenses. The statement now made in the minute for the pursuer, No 22 of process, appears to the Lord Ordinary, of necessity, to infer that were a second trial to take place the pursuer could not present to a jury a more favourable case than that which, as the Lord Ordinary construes the judgment of the Court, has been held insufficient to warrant the verdict on either of the issues. In these circumstances success in the cause is plainly with the defender; and looking to the whole process and character of the litigation, the Lord Ordinary is of opinion that justice demands that the defender should be freed from the expenses of a trial in which she should never have been summoned.”