Scottish Court of Session Decisions

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Cite as: [1878] SLR 16_5, [1878] ScotLR 16_5

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SCOTTISH_SLR_Court_of_Session

Page: 5↓

Court of Session Inner House Second Division.

[Sheriff of Berwickshire.

Thursday, October 17. 1878.

16 SLR 5

Stott

v.

Fender and Crombie.

(Ante, vol. xv. p. 734.)

Subject_1Expenses
Subject_2Double Appearance by Two Defenders having Similar Interests.

Facts:

Where there are two defenders to an action with the same or similar defences, the Court will not allow the whole expense of a double defence.

Circumstances in which the Court allowed the expenses of one defender, with a watching fee added for counsel and agent of the other
Page: 6↓
defender, the loss in consequence of the second account being disallowed to be borne rateably by both defenders.

Headnote:

The circumstances of this case have been already reported (July 20, 1878, 15 Scot. Law Rep. 734). This discussion arose on the motion for approval of the Auditor's report, when both defenders claimed payment of their accounts.

Argued for pursuer—In this case there was only one defence (Sheriff's note), and on appeal only one statement was made, and one appearance was quite sufficient— Burrel v. Simpson & Company, July 19, 1877, 4 R. 1133; Consolidated Copper Company, January 17, 1878, 15 Scot. Law Rep. 274.

The defenders argued that in the circumstances of the case the double appearance was absolutely necessary.

At advising—

Judgment:

Lord Justice-Clerk—I think it is the duty of agents to conduct cases of this description if possible without a double defence, and the expense of double agency and double appearance of counsel, and there is, as a rule, no difficulty in doing so. The present case depended on Crombie's liability, and it was only if we had found him liable that the question of Fender's liability could arise, but we found him not liable. It seems to me that the best course to follow here is to take the two accounts as one, and to modify it. What we propose is to add £21, as watching expenses for the second defender, to the larger account, and to disallow the rest, the part disallowed to be borne rateably by both defenders.

Lords Ormidale and Gifford concurred.

Counsel:

Counsel for Pursuer (Respondent)— Trayner. Agent— H. B. Dewar, S.S.C.

Counsel for Crombie (Defender and Appellant)— Mair. Agent— W. Steele, S.S.C.

Counsel for Fender (Defender and Appellant)— Mackintosh. Agents— Frasers, Stodart, & Mackenzie, W.S.
1878

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