Scottish Court of Session Decisions

Subject_1Sheriff
Subject_2Process
Subject_3Expenses of Appeal where no Finding of Expenses in Sheriff-Principal's Interlocutor, and Judgment Affirmed by Court of Session.
Facts:

In an action in the Sheriff Court of Argyllshire, the Sheriff-Substitute ( Gardiner) after decerning in favour of the pursuer, found him entitled to expenses in the usual terms. The defender appealed to the Sheriff ( Forbes Irvine), who dismissed the appeal, and added, “Affirms the interlocutor appealed against, and decerns.” The Second Division dismissed an appeal to them, and found the respondent “entitled to expenses from the date of the Sheriff's judgment,” and remitted to the Auditor “to tax the same and also the expenses found due in the Sheriff Court.”

The Auditor in his report drew the attention of the Court to the fact that the Sheriff Principal had made no finding of expenses in the pursuer's favour as regarded the appeal to him, and reserved the question whether he was to be found entitled to them for the consideration of the Court. Counsel for the appellant contended that the pursuer was not entitled to these expenses in respect they were not decerned for— Gordon v. Walker, March 5, 1872, 10 Macph. 520; Wilson's Sheriff Court Practice, 302. Counsel for the respondent stated that in point of fact an interlocutor in the terms of that of the Sheriff-Principal was understood and acted on in the Sheriff Court of Argyllshire as carrying expenses, and he produced a letter from the Sheriff-Clerk to that effect; further, that the First Division had held that such an interlocutor carried expenses.

The Court disallowed the expenses in question, observing that the practice followed in the Sheriff Court of Argyllshire was a bad one, and that it was preferable to follow the course taken in the Court of Session in a case where a Lord Ordinary had made no finding as to expenses.