Scottish Court of Session Decisions

Lord Cowan—As I concur in thinking that, in the circumstances of this case, the auditor's report should be approved of, and the objections to it repelled, I would have abstained from any observations had it not been that I cannot acquiesce in some of the views which your Lordship has stated as to the principles on which questions of expenses like the present should be judged of under the statute and relative rules by the Election Judges.

The 41st section of the statute appears to me to be the ruling enactment, whether in the original award of expenses or in the subsequent audit of the account when costs have been given. The principle of this provision is to secure indemnity to the successful party, subject to those limitations to guard against unreasonable and lavish expenditure so specifically and carefully set forth. “All costs, charges, and expenses of and incidental to”the procedure under an election petition are to be defrayed by the parties to the petition “as the Court or Judge may determine,” with the exception of the expenses to be defrayed by the Commissioners of the Treasury, as provided for by the Act.

But in giving an award or in pronouncing decree for expenses the Court or Judge is to have regard to these principles—(1) to disallow expenses caused by vexatious conduct, unfounded allegations, or unfounded objections, and (2) to discourage needless expense by throwing the burden on the parties by whom it has been caused. And in accordance with these principles, as I read the enactment, costs are not merely to be awarded but to be taxed in the manner prescribed by the regulations and as between agent and client in an ordinary action at law. There are certain steps of procedure under the statute—and that of the withdrawal of a petition is an instance—in which it is expressly enacted that costs shall be at once awarded. The more general case contemplated by the Act in which costs may be given in whole or in part is where the petition has issued in a trial before the Election Judge. I can quite understand that the Judge in awarding expenses should have regard to the general principles as to costs laid down by the 41st section. The more usual course, however, where expenses are given will be to do so in general terms, leaving it for subsequent determination how far the costs charged by the successful party is in compliance with the statutory rules. In no other way in my apprehension can those rules be duly and properly enforced. The Judge on the trial cannot be expected before awarding costs in the general case to examine the account. He may, indeed, reserve the consideration of the question of costs. But where he thinks it of importance at once to give costs at the close of the trial, as he has undoubted power to do, his general award must necessarily be subject to the principles of charge and taxation prescribed by the statute. Subject to this explanation, the 34th regulation made by the Election Judges is to be read and understood. When costs are awarded for proceedings under the act, the award, is declared equivalent to a finding of expenses in the Court of Session, and the account is to be taxed by the Auditor of Court as between agent and client. That taxation must necessarily be in accordance with the statutory rules laid down by the 41st section of the statute, taken along with the ordinary regulations for taxing accounts as between agent and client in ordinary suits. At no other stage can regard be had, as provided by the statute, to the checks imposed on lavish, improper, or needless expenditure in the proceedings. I would regard it a serious misfortune to parties interested in election proceedings if, in taxing the account, the auditor is not to regulate his taxation on these principles. I cannot read the statutory provision otherwise than as not merely entitling him, but as requiring him to do so,—his audit of course being always subject, as in the ordinary case, to be brought under review of the Election Judge or of the Court on objections by either of the parties, or under any special report which the auditor may think it right to make. As to the competency of objecting to the audit, I do not think it in the least doubtful. There is not a word in the 34th regulation which can fairly be regarded as constituting him into an irresponsible and final judge in the important matter of costs. The taxation prescribed is to be as in ordinary course, and if either party consider that he has gone wrong, the opinion of the Judge or of the Court may be taken on objections when decree is asked for the taxed amount. Accordingly, both parties in this case have stated objections, and the competency of their doing so has not been made matter of dispute at the bar.

On the objections themselves, as these have been explained in the debate, I have nothing to add to the comments made by your Lordship.

Lord Benholme and Lord Neaves concurred, the latter stating that, while it was the function of the Court to decide in what branches of the case expenses were to be charged against each party, the auditor was familiar with many details as to what fees or expenses were proper, of which the Court had not the same knowledge, and that therefore, they should be chary of interfering with the auditor in the discharge of what was his proper function. A case must be conducted with a fair view towards an adversary, and the taxing officer had power to cut down the expenses accordingly. He had no doubt the auditor had discharged his duty in this case anxiously; and, on the whole, he found no ground for disturbing the report.