Scottish Court of Session Decisions

Lord President—There are three interlocutors prefixed to this reclaiming-note, and intended to be brought under review. It is not said that either of the first two interlocutors can be brought under review without leave of the Lord Ordinary, but it is contended that the third interlocutor can be reclaimed against without leave, and has the effect of bringing up the other two. Whether the interlocutor of 1st December 1871 can be brought under review without leave is an important question in practice, which depends mainly on the construction of section 53 of the Court of Session Act, 1868. What the Lord Ordinary has practically done is to decide the merits of the competition apart from the question of expenses. As regards the merits of the cause, apart from the expenses, this is a complete interlocutor. If the interlocutor is adhered to, there can be no further procedure on the merits. But the question of expenses has not been decided. The 17th section of the Judicature Act directs the Lord Ordinary to dispose of the merits and expenses by the same interlocutor. This enactment has been interpreted in practice as entitling the Lord Ordinary to reserve the question of expenses. The effect is to separate the final judgment into two. Until both have been disposed of, there is not a final judgment within the meaning of section 17 of the Judicature Act. When the merits have been disposed of, and parties appointed to be heard on the question of expenses, is it competent to reclaim without leave? The objection is, that the interlocutor reclaimed against is not an interlocutor disposing of the whole cause. Then comes section 53 of the Act of 1868. The phraseology is so distinct as to make it impossible to get over it. “It shall be held that the whole cause has been decided in the Outer House, when an interlocutor has been pronounced by the Lord Ordinary, which, either by itself, or taken along with a previous interlocutor or interlocutors, disposes of the whole subject matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause;” ( i.e., when the Lord Ordinary finds it unnecessary to decide certain questions); “but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” It is further important to observe that this very 53d section contemplates that a final judgment may consist of more than one interlocutor. If the party had waited till the question of expenses had been disposed of, he would have been entitled to present a reclaiming-note against the interlocutor disposing of expenses, which would have brought up the previous interlocutors. But he has stepped in and reclaimed against the first half of the final judgment, before the second part is pronounced. The natural reading of the 53d section of the Act of 1868, and reason and expediency, are all in favour of construing this reclaiming-note as incompetent.

Lord Deas—I am of the same opinion, and I consider that the judgment is very important and wholesome. This reclaiming-note would have been quite competent after the Lord Ordinary had disposed of the question of expenses. I think that at this stage it is incompetently presented under section 53 of the Court of Session Act, 1868. This is much strengthened by the enactment of the Judicature Act, that the Lord Ordinary shall decide the question of expenses at the time he disposes of the merits. The object of the enactment is obviously that he shall decide the question of expenses while the case is fresh in his recollection. The only relaxation is that he may reserve the question of expenses. It is clear enough that if we held this reclaiming-note competent, one great object of the Act would be defeated, which is to diminish litigation, and to prevent lawsuit within lawsuit without end. In many cases it may be expedient to reclaim before the question of expenses is decided, but the statute makes the Lord Ordinary sole judge of the expediency.

Lord Ardmillan—I do not think this point is decided by the case of Bannatine's Trustees v. Cunninghame, but I consider that the view which your Lordships take is the legitimate result of that decision, and the correct interpretation of section 53. There are three possible cases. There may be a judgment finding no expenses due. That, of course, is a final judgment. Next, there may be a judgment finding expenses due, but without a decerniture. This case is specially met by section 53 of the Act of 1868. Thirdly, the judgment may reserve the question of expenses, or, which is equivalent, appoint parties to be heard thereon. In this case the proper time to reclaim is after the question of expenses has been decided.

Lord Kinloch—I concur. It is clear that the Act of 1868 intended that the matter of expenses should be decided as well as the merits before the party is entitled to reclaim as a matter of right. It is inexpedient that one of the parties should be entitled to take the case out of the Lord Ordinary's hands. No doubt he may obtain leave to reclaim if the Lord Ordinary thinks fit. But no leave has been asked or obtained in this case.

The Court pronounced the following interlocutor;—Refuse the reclaiming-note as incompetent, in respect it is presented without leave of the Lord Ordinary, and, in respect the interlocutor of 1st December 1871, though disposing of the merits of the competition, does not dispose of the expenses of process; reserve the expenses of this reclaiming-note to be disposed of by the Lord Ordinary along with the other expenses of process.