Scottish Court of Session Decisions

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Cite as: [1883] ScotLR 21_268, [1883] SLR 21_268

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SCOTTISH_SLR_Court_of_Session

Page: 268↓

Court of Session Inner House First Division.

[Sheriff Of Lanarkshire:

Saturday, December 22. 1883.

21 SLR 268

Church

v.

Caledonian Railway Company.

Subject_1Process
Subject_2Expenses
Subject_3A.S., 15th July 1876
Subject_4Expense of Precognitions in Action raised in Sheriff Court — Precognitions — Appeal for Jury Trial — 6 Geo. IV. c. 120, sec. 40.
Facts:

The third general regulation of the Act of Sederunt of 15th July 1876 provides that the expenses to be charged against an opposite party shall be limited to proper “expenses of process,” subject, however, to this provision, that, inter alia, the expense of precognitions taken before the raising of the action may be allowed where eventually there is an interlocutor approving of issues or allowing a proof.

An action was brought from the Sheriff Court, after a diet of proof had been fixed, to the Court of Session by an appeal for jury trial under sec. 40 of 6 Geo. IV. c. 120, and was there compromised before an issue was approved of or a proof allowed. Held, under the above regulation, that the pursuer could not charge against the defender the expense of precognitions taken before the raising of the action in the Sheriff Court, on the ground that the Act of Sederunt applied only to the practice of the Court of Session, and that in the Court of Session there had been no approval of issues or allowance of proof.

Headnote:

An action of damages for bodily injury was raised in the Sheriff Court of Lanarkshire at the instance of Adam Church against the Caledonian Railway Company, and a record having been made up, an interlocutor was pronounced on 4th October 1883, closing the record, allowing a proof, and fixing the diet of proof. Against this interlocutor the pursuer on 9th October appealed under sec. 40 of the Judicature Act 1825 (6 Geo. IV. c. 120) to the Court of Session with a view to jury trial. This appeal appeared in the Single Bills of the First Division on 31st October, and an order for issues was then pronounced. Immediately thereafter a tender was made which was accepted, and on 7th November the order for issues was discharged.

In taxing the pursuer's account of expenses the Auditor reserved for the consideration of the Court the question of the liability of the defenders for £8, 12s. 4d., being the amount of expenses incurred by the pursuer in taking precognitions before the raising of the action in the Sheriff Court.

In a note appended to his report the Auditor stated—“The pursuer contends that under the proviso in the third general regulation appended to the Act of Sederunt of 15th July 1876, which is in these terms: ‘Precognitions, so far as relevant and necessary for proof of the matters in the record between the parties, although taken before the raising of an action or the preparation of defences, and although the case may not proceed to trial or proof, may be allowed where eventually an interlocutor shall be pronounced either approving of issues or allowing a proof,’—he is entitled to the expense of precognitions in respect of the interlocutor of the Sheriff allowing a proof and fixing a diet. The defenders, on the other hand, maintain that the pursuer by his appeal set aside that order, and that their tender having been made and accepted before the approval of issues they are not liable for these expenses.”

The case then appeared in the Single Bills for the approval of the Auditor's report, and the pursuer argued that the charge for precognitions should be allowed, on the ground that the action having been brought to. the Court of Session by appeal must be held to have originated there. Ewing v. Cochrane, July 20, 1883, 20 S.L.R. 842.

At advising—

Judgment:

Lord President—By the third of the general regulations contained in the Act of Sederunt of 15th July 1876 it is provided in the main part of the section that “the expenses to be charged against an opposite party shall be limited to proper expenses of process, without any allowance (beyond that indicated in the table) for preliminary investigations.” That general rule, however, is

Page: 269↓

subject to this proviso, that “precognitions, so far as relevant and necessary for proof of the matters in the record between the parties, although taken before the raising of an action or the preparation of defences, and although the case may not proceed to trial or proof, may be allowed where eventually an interlocutor shall be pronounced either approving of issues or allowing a proof.” Now, that, like all the other provisions of this Act of Sederunt, applies entirely to the practice in this Court, and the question here is, Whether an agent can charge in his account against the opposite party the expense of precognitions taken before the raising of the action in the Sheriff Court? So far as it has proceeded in this Court there has been no proof ordered, and no approval of issues, and I am therefore of opinion that the proviso does not apply, and that the main regulation does.

Lords Deas, Mure, and Shand concurred.

The Court disallowed the charges reserved by the Auditor, amounting to £8, 12s. 4d., and decerned against the defender for the remainder, being £24, 16s. 2d.

Counsel:

Counsel for the Pursuer and Appellant — Dickson. Agents— Dove & Lockhart, S.S.C.

Counsel for Defenders and Respondents— R. Johnstone. Agents — Hope, Mann, & Kirk, W.S.
1883