Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1882/19SLR0652.html
Cite as: [1882] ScotLR 19_652, [1882] SLR 19_652

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SCOTTISH_SLR_Court_of_Session

Page: 652↓

Court of Session Inner House First Division.

Thursday, June 8. 1882.

[ Lord Lee, Ordinary.

19 SLR 652

Hare

v.

Stein.

Subject_1Process
Subject_2Statute 6 Geo. IV. cap. 120 (Judicature Act), sec. 10
Subject_3Pursuer in Procedure Roll Refusing to Insist in the Action
Subject_4Expenses.
Facts:

It is not abandonment of an action in the sense of the Judicature Act when the pursuer, on the case reaching the Procedure Boll, declines to insist further in the action, and the defender is assoilzied; and the Lord Ordinary may in such cases himself modify the expenses instead of remitting the account to the Auditor to tax and report.

Opinion (per Lord Shand) that in certain circumstances, even in cases of abandonment of the action, the Lord Ordinary may act as Auditor.

Headnote:

On the 9th December 1881 Lieutenant-Colonel James Hare of Calderhall raised an action against David Stein, then residing at Redcraig Cottage, near Midcalder, for payment of £30. The defender lodged defences. When the case reached the Procedure Roll the pursuer stated that he did not desire to insist any further in the action, whereupon the Lord Ordinary pronounced an interlocutor assoilzieing the defender from the conclusions of the summons and finding the pursuer liable to the defender in ten guineas of expenses.

The defender reclaimed on the question of expenses, and argued—Pursuer was virtually abandoning the action, and this was incompetent except upon payment of all expenses incurred. The Lord Ordinary has modified the expenses here; he had not the data to enable him fairly to do this, nor had he the power. The account should have been remitted to the Auditor to tax and report.

Authority— M'Aulay v. Cowe, December 19, 1873, 1 R. 307.

Page: 653↓

Counsel for the respondent were not called upon.

At advising—

Judgment:

Lord President—In the ordinary case, when under the Judicature Act the pursuer desires to abandon an action after the record is closed, he is allowed to do so on the understanding that the account of expenses incurred is to go to the Auditor to be taxed and reported upon. That, however, is not the rule which is to determine the present question. If the pursuer had abandoned the cause, then there would have been the usual taxation of the accounts, but it would have been open to him to have brought a new action against the defender. What was done here, however, was this—When the case reached the Procedure Roll the pursuer made up his mind to insist no further in his claim against the defender, and accordingly the Lord Ordinary assoilzied the defender from the conclusions of the summons, and fixed a sum which in his opinion would cover all the expenses which ought to have been incurred. His Lordship so acted to prevent the further expense which would necessarily be incurred by a taxation of accounts before the Auditor. I think that the Lord Ordinary acted rightly in the circumstances, and I am for adhering to his interlocutor.

Lord Deas and Lord Mure concurred.

Lord Shand—As your Lordship has observed, we have not before us the case of an action abandoned under the provisions of the statute, when it is usual that the account of expenses incurred by the parties be remitted to the Auditor for taxation. I am not, however, prepared to say that even under the Judicature Act the Lord Ordinary might not in certain circumstances do the duty of an Auditor. I think there are circumstances in which even under the statute the Lord Ordinary might, for the purpose of avoiding further outlay, fix the amount of expense to be paid by the party abandoning. What the Lord Ordinary does in the present case, however, is not to modify in the sense of striking off, but for the purpose of avoiding the expense of an audit fixes a sum, and in so doing I agree with your Lordship in thinking his Lordship has acted rightly.

The Court adhered.

Counsel:

Counsel for Pursuer— Moncreiff—Maconochie. Agents— Maconochie & Hare, W.S.

Counsel for Defender— Watt. Agent— D. Howard Smith.
1882

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