Scottish Court of Session Decisions

The Auditor reported this case with the following note:—“The sum taxed off this account amounts to £177, 8s. 11d. In this are included the whole expenses of obtaining and executing a commission and diligence at the instance of the pursuers for recovery of certain documents, amounting to no less than £120, Os. 11d. At the audit, the grounds on which this branch of the account was disallowed were explained by the Auditor, but as the amount is considerable, and it is not improbable that objections to the report may be stated, the Auditor thinks it right to record the grounds on which he has proceeded in disallowing these expenses.

The summons contains conclusions against the defenders for exhibition and delivery of two contracts of marriage, the terms of which it was necessary for the pursuers to establish as the basis of the petitory conclusions of the action. Previous to the institution of the action, the pursuers had discovered the existence of the draft of one of these contracts, and in whose custody it was. In the defences it was stated, that the defenders were not, and never had been in possession of the deeds libelled. Before revising the condescendence the pursuers applied for a commission and diligence for the recovery of a great variety of documents enumerated in a specification lodged in process. The diligence was granted, but only to a limited extent, viz., for recovery of the 1st, 2d, and 3d articles of the specification—article 1st being one of the contracts above mentioned, article 2nd the other contract, and article 3d—all drafts or copies of these deeds. The diligence thus limited was executed at great expense in Edinburgh and Aberdeen, but the only document recovered was the draft of one of the contracts, the existence and custody of which were within the knowledge of the pursuers when the action was raised. After reporting this diligence, the pursuers craved and obtained a sist of procedure to enable them to prove the tenor of the contract (of which the draft had been recovered) in a separate action, and the tenor having been proved, the record in this action was completed and closed.

It appears to the Auditor that, however important to the pursuers it might be to set up the draft of the missing contract as the foundation of their claims, they are not entitled to recover from the defenders in this process the expense of obtaining and executing their diligence in the face of the statement in the defences—-that the defenders had not the deeds libelled, and if the failure of the pursuers to recover them or to obtain decree in this action in terms of the conclusions for exhibition and delivery, and that the expenses in question are truly expenses incident to and for the purposes of their separate action of proving the tenor, the expenses of which have not been given against the defenders.

The Auditor has disallowed these expenses in toto as being expenses not covered by the general finding of expenses. But even should a different view be taken by the Court, it seems to the Auditor that the diligence has been executed at an expense altogether disproportionate to the simple nature of the specification as limited; and in order that the Court may have the materials (without a further remit to him) for disposing of this branch of the expenses, on the assumption that it is to be sustained to some extent as expenses under the general finding, the Auditor has marked on the margin of the account the items of the expenses of obtaining and executing the diligence which may, on such assumption, be sustained against the defenders. These amount to £43, Os. 4d. sterling.”

The pursuers also objected to the report, in respect the Auditor had disallowed a fee to junior counsel for attending advising of the case in the Inner-House.