Scottish Court of Session Decisions

Lord President—There are two questions raised upon the auditor's report in this case. In the first place, the auditor has disallowed the expense of executing an arrestment and inhibition upon the dependence of the action, on the ground that such expense is not part of the expense of process. Of course, if that is the case, the auditor has rightly disallowed the charge. I think that it is settled by the case of Taylor that the expense of diligence upon the dependence of an action is not part of the expense of process; and in practice that decision has been followed uninterruptedly. I think that it rests upon a sound principle, viz., that diligence upon the dependence of an action does not contribute to the obtaining decree, which is the sole object of the action. I am therefore of opinion that this objection should be repelled. The next question has reference to the fees to counsel. In this respect this case is in a peculiar position. I can't say that three counsel were required in this case; so I cannot sustain the objection to the effect of adding the fees for the third counsel. The way in which the auditor has dealt with this matter is the usual one of allowing the fees to the two counsel who were in the case all through, and this operates hardly against the pursuer. The question is, whether the pursuer was not entitled to secure the services of one of the leaders of the bar. The defender had done so, although he had already two counsel in the Outer House, and I think that the wife was entitled to the same advantage. So I think we should do what at first sight may appear inconsistent, namely, sustain the fees to the Solicitor-General and to the senior of the two other counsel, or, in other words, allow the fees to the two counsel who argued the case before us. The rule followed by the auditor is in general sound; but the circumstance that the husband had fortified himself by retaining a leading counsel, takes the case out of the general rule, so I think that we should allow the fees to the counsel who argued the case, and disallow the fees to the junior counsel.

Lord Deas—The first question is as to the arrestments and inhibition used by the pursuer on the dependence of the action, and I think it clear that if she hadn't used that diligence, her decree for aliment and expenses would have been useless, because the defender, so soon as he found what the result of the action was to be, left the country. Thus, if it hadn't been for the arrestment and inhibition, there would now have been nothing for the pursuer to get. The objection to the pursuer getting the expense of her diligence is the technical one that it is not part of the expense of process, and that objection is grounded upon the principle that nothing is expense of process which is not necessary to get decree. I admit that that principle has some countenance from the report of the case of Taylor; but I do not think the principle a sound one. The question whether an item of expense is a proper expense of process does not depend on any technical ground, but upon the consideration whether the expense was reasonable and proper. That is well illustrated by the case of Colquhoun v. M'Kay, 28th May 1829, 1 Deas and Anderson, 100, which is reported by Mr Anderson, Q.C., so that there is no doubt as to the accuracy of the report. In that case the expense of a commission and diligence to examine a witness in America, the evidence to lie in retentis, was allowed, and the objection that it was not part of the expense of process was repelled. The evidence had never been used, but the Court allowed the expense, because it was reasonable and proper. That, I think, is the sound and proper test to apply. In this case there is no doubt that the expense was reasonable and proper; for if the pursuer had not used diligence, all the defender's property would have been removed from the country. Then, again, this is an action between husband and wife, and this expense is a debt of the husband's. I am therefore of opinion that the objection should be sustained.

In regard to the other points raised, I concur with your Lordship.

Lord Ardmillan—The question as to the expense of the pursuer's arrestment and inhibition is attended with some difficulty. This is a case between husband and wife, and the rules as to the husband's liability for the wife's expenses are in some respects different from the ordinary liability between party and party. Then, to gain a suit, to obtain a decree, is the aim of an action in Court. Arrestment of funds and inhibition are not steps to obtaining decree, but to prevent the decree when obtained being defeated. In this case the use of diligence was an appropriate and, indeed, necessary proceeding; but the expense thereby incurred is not expense in that course of precedure which terminates in a decree. That is the true rule as to expenses chargeable against the other party, and that is the rule laid down in the case of Taylor The case cited by Lord Deas—viz., the case of a commission to take an examination of a witness to lie in retentis—is not, I think, a parallel case. Such an examination is taken to meet a contingency, and is strictly a step in the course of procedure which ends in decree. But the use of arrestment or inhibition is without and beyond that procedure, and that was the principle laid down in the case of Taylor. There is much force in the position taken up by Lord Deas; but I think it safer, and more in accordance with authority and principle, to repel the objection.