Held that where there was no misconduct on either side at an election, or in the subsequent litigation resulting out of the election, neither party is entitled to costs.
Judgment:
Lord Ormidale—The state of the vote at the time the Special Case was ordered left a majority of one in favour of Mr Stewart. There were nineteen votes included in the Special Case for the disposal of the Court, and by their answers to the two questions put to them the Court have sustained five objections taken on the part of the petitioners and three objections on the part of the respondent. The result of this is to give 515 votes for Mr Young, and 514 for Mr Stewart.
Counsel for both parties concurred in this as the result.
Lord Ormidale—Then I shall report to the Speaker that Mr Stewart was not duly elected, and
Page: 538↓
that Mr Young was duly elected and ought to have been returned. I shall probably also send a special report, in which I shall state that Mr Young is now one of the Judges of the Court of Session, and that the seat is not claimed for him.
The
Dean of Faculty moved for the expenses of the petition, including the expenses of the Special Case.
The
Solicitor-General opposed the motion.
Lord Ormidale—The general rule undoubtedly is that the successful party gets his expenses; but there is as little doubt that in many cases the Court does not give the successful party expenses even although it cannot be said against him that he has been guilty of misconduct in carrying on the litigation. In reality, the question of costs is held to be in the discretion of the Court. Here it is not suggested that there was any misconduct on either side either at the election or in the litigation under the present petition. It must be assumed that the Returning Officer, in dealing with the voting papers acted
proprio motu, without any suggestion on the part of Mr Stewart; and if so the principle on which the Court in Ireland proceeded in the
Athlone case, to which I have been referred, comes to be of importance. In that case, according to the report contained in the return to the order of the House of Commons, the ground upon which the Lord Chief-Justice held neither party entitled to costs is thus slated:—“It appears that the Sheriff, as far as we can see, of his own instance, without either party insisting on it, ruled that all these votes should be rejected; that being so, we are of opinion that there was no misconduct by either party.” Now, that principle of decision arises here exactly in the same way, and is equally applicable. It does not appear that the errors in the ballot papers now given effect to, which have left Mr Young in place of Mr Stewart in a majority, were caused or suggested by Mr Stewart. It is no doubt a misfortune that these errors should have arisen, and that in consequence the parties should have been subjected to, it may be, a good deal of expense; but having regard to the principle, which I think must recommend itself to any Court exercising its discretion in the matter of costs, I do not think I can do otherwise than follow the case of
Athlone as an example, though not as a binding rule; and I therefore hold that in this case neither party is entitled to costs, but must each bear his own costs.
Counsel:
Counsel for Petitioners—The
Dean of Faculty (Clark), Q.C., and
Balfour. Agents—
Gibson-Craig,
Dalziel &
Brodies, W.S.
Counsel for Respondent—The
Solicitor-General (Millar), Q.C., and
Macdonald. Agents—
Tods,
Murray &
Jamieson, W.S.
