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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cooper v. Cullen [1874] ScotLR 11_641 (27 June 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0641.html
Cite as: [1874] ScotLR 11_641, [1874] SLR 11_641
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SCOTTISH_SLR_Court_of_Session
Page: 641↓
Court of Session Inner House First Division.
v.
Facts:
Circumstances in which the expense of examining a witness in India on commission, who, owing to events which could not be foreseen at the date of the examination, was able to attend and give evidence at the trial, was allowed as a charge against the loosing party.
Observed that it is a question of circumstances whether the expense of a commission to examine a witness resident abroad, who afterwards attends and gives evidence at the trial, is chargeable against the loosing party.
This was an action of damages for breach of promise of marriage, in which a jury returned a verdict for the pursuer, and the case now came before the Court upon the Auditor's report of the pursuer's account of expenses.
An essential witness for the pursuer was her brother, who for a considerable time previous to the action was employed in a mercantile house in India, without the least prospect of returning to this country. A commission was accordingly granted to take his deposition in India. After this commission some delay was occasioned in the case by a change of Lord Ordinary, and during that delay the pursuer's brother was suddenly called home from India by the firm which employed him. He was thus at home at the time of the trial, and was examined as a witness for the pursuer.
The Auditor disallowed the charge of £61 for the expense of the commission to examine this witness in India.
The pursuer objected to the decision of the Auditor, and argued—The expense of a commission to India was under the circumstances a necessary expense, and was certainly an expense of process, and fairly chargeable against the loosing party.
Argued for the defender—Where a party took a commission to examine a witness abroad, he took it at his own risk, and if the witness appeared at the trial, bore the loss.
Authorities— Napier v. Compbell, March 7, 1843, 5 D.858; M'Lean v. Cooper, Feb. 4, 1846, 8 D. 429.
At advising—
The Lord President—The question here is whether a loosing party is liable for the expense of a commission to take the evidence of a person who either is abroad or is expected to be so at the time of the trial. I think the question is one of circumstances. In the case of M'Lean v. Cooper, the Lord President, after consultation with the other Division, disallowed the charge, but at the same time said that he laid down no general rule. Therefore every question of this sort must be looked upon as one of circumstances. I observe, further, in the case of M'Lean v. Cooper that it was not maintained on the part of the pursuer that the witnesses examined on commission were essential witnesses, and it was probably on that ground that the charge was disallowed. Here the witness was undoubtedly an essential witness, so much so that if he had not been examined I doubt if the pursuer could have obtained a verdict.
At the time when the commission was granted this witness was in India, and had been there for some time in the employment of a mercantile house, and so he could not have been brought to this country for the trial, even if such a course would have been less expensive. So this commission was an absolute necessity to the conduct of the case. The appearance of the witness at the trial was the result of an unforeseen occurrence, the employers
Page: 642↓
I think the decisions quoted are not inconsistent, but that the result is that every question of this sort depends on circumstances.
Your Lordship's opinion that this witness was essential is I think conclusive in this case. I will not, however, say that in every case it is necessary before the charge can be allowed that the witness must be shown to be essential. The witness must be important, but I do not think it necessary that he should be essential.
The Court sustained the objection.
Counsel for Pursuer— M'Donald.
Counsel for Defender.— Watson.