Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0301.html
Cite as: [1871] ScotLR 8_301, [1871] SLR 8_301

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SCOTTISH_SLR_Court_of_Session

Page: 301↓

Court of Session Inner House First Division.

Saturday, January 14. 1871.

8 SLR 301

Macbrair

v.

Small

Subject_1Agent and Client
Subject_2Expenses
Subject_3Joint and Several Liability.
Facts:

In a case in which he had represented two different parties in a cause, whose interests were nearly identical, and whose defences were in general joint, but for whom it had been necessary occasionally to put in separate papers; the agent afterwards raised an action for his account of expense against one of the parties, but merely sued for his individual share, without raising any question of joint and several liability, on which footing he got decree. In his account, however, he charged the defender with the expense of all that was done separately in his individual name, and also with the whole expense of the joint proceedings. The auditor taxed off one-half of all these latter charges. Held that it was then too late to raise the question of joint and several liability, which should have been made the principal point in the case if it was to be brought up at all, and that the auditor had taxed the account upon the principle on which the action was brought.

Question—Whether the putting in of occasional separate pleadings would obviate the joint and several liability which would arise out of the otherwise joint conduct of a case.

Headnote:

This was the sequel of a case previously before the Court ( vide ante, p. 141). The pursuer had obtained judgment in his favour, and been ordered to lodge his accounts with the auditor for taxation as between agent and client, before final decree was given for the amount.

The auditor taxed the account, and reported to the Lord Ordinary, who approved of the report, and decerned for the amount as taxed. The pursuer reclaimed, raising objections to the principle on which the auditor had proceeded.

Guthrie, for him, in support of the objections, referred to Greenhill v. Gladstone, 23 D. 1006; and Mackenzie v. Cameron, 15 D. 671.

Strachan, for the defender, was not called upon.

At advising—

Judgment:

Lord President—In the original action Mr Macbrair, the pursuer here, was very properly doing the work of agent for two different parties, for his clients had to a very great degree a common interest. But yet was it possible even in such a state of matters for him to charge the expenses of the separate defences and other papers put in for one of his clients against the other? However they may have been liable for such of the expenses as were joint, there is no doubt that each was solely liable for the expense of all pleadings lodged in his own name. This principle is acknowledged and applied by Mr Macbrair himself; and upon this footing his whole action is founded without there being a word said about joint liability. But whenever there is a slump sum charged for joint work, Mr Macbrair shifts his ground; he does not propose to separate the charges, but places them all to Mr Small's debit. Now this is perfectly inconsistent with the scope of the present action, and with the principle upon which Mr Macbrair has drawn his summons. I do not wish to say anything about joint and several liability, or upon the effect which the putting in of separate defences, &c., at certain stages of the action, may have had upon the question of joint and several liability; but this action was not brought upon the footing of joint and several liability at all. Mr Macbrair sues upon quite a different footing, upon the footing of individual liability, and upon that footing we have decided the question. We cannot now allow him to shift his ground, and bring up another and rather difficult and complex question, upon mere objections to the auditor's report, which we ordered by way of giving effect to our judgment. If he had wished to raise this question it should have been done as the principal point of the action. It is now too late.

The other Judges concurred.

The Court adhered.

Solicitors: Agent for Pursuer— D. J. Macbrair, S.S.C.

Agent for Defender— James Barclay, S.S.C.

1871

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