Scottish Court of Session Decisions

In this case (as previously reported 15th July 1884, ante, vol. xxi. p. 742) the Court adhered to the interlocutor of Lord Kinnear sisting the Scottish Right of Way and Recreation Society (Limited) as defenders, as craved by their minute, and allowing defences for them to be received. The Court at the same time “reserved the expenses of the discussion” on the reclaiming-note.

Thereafter, the case having again come before the Lord Ordinary, the defenders (the said society) abandoned their defences, and the Lord Ordinary gave decree against the society in terms of the conclusion of declarator and interdict, and found the pursuer entitled to expenses, and remitted his account to the Auditor to tax and to report.

When the Auditor reported, the defenders objected to the report in respect that the Auditor had not taxed off a sum of £30. This sum had been incurred in the discussion on the question whether the society ought to be sisted as defenders, and the society maintained that they had been successful on that point, and that the expenses of the discussion ought not to be treated as general expenses in the cause, to which, as such, the interlocutor finding the pursuer entitled to expenses could apply.

The pursuer argued that these expenses were only reserved, and not given against him by the Inner House, and that this meant that they were to follow the ultimate result of the cause in which he had been altogether successful.

The Lord Ordinary, after making avizandum and consulting with the Auditor, pronounced this interlocutor—“The Lord Ordinary having heard counsel on the note of objections for the defenders the Scottish Right of Way and Recreation Society (Limited) to the Auditor's report on the account of pursuer's expenses, repels the same, approves of said report, and decerns against the said defenders for the sum of £78, 13s. 5d., the taxed amount of said expenses.

“ Note.— I have considered this matter along

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with the Auditor, and I have examined both the authorities and the practice. The only question seems to me to be, what is the true effect and meaning of a decree for expenses? and I have no doubt at all that the decree in this case carries the expenses reserved in the Inner House. The sole purpose of the reservation was that the expenses of the reclaiming-note should follow the decree disposing of expenses generally, unless the Court saw reason afterwards to make a different provision regarding these. If there had been no reservation, neither party might have got expenses, and the reservation is simply to the effect I have mentioned. I think that only leaves open the question that was argued, as to whether this was a point upon which a party generally unsuccessful had been specially successful, and therefore the expenses which the Auditor had allowed should be disallowed under the Act of Sederunt; and on that also I hold that the Auditor has taken the course not only justified by practice but in accordance with the reason of the thing, because the meaning of the judgment of the First Division was that this was not an expense which ought to be separated from the general expenses of the case, being expenses incurred upon a point on which the party respondent was plainly successful, and I think the meaning of the judgment was that it must follow the general expenses, unless there was some other reason for dissociating it from the general expenses. If a party volunteers to come forward to contest a right, and incurs expenses and exposes his opponent to expenses in order that he may establish right to contest the case, the question whether he is ultimately to get the expenses of that discussion depends very much upon whether he really had any right or substantial interest to maintain, and if it turns out that he has none, or that in his own judgment he thinks he has so little that he does not continue to contest, I do not say there positively is, but there may be very good reasons for refusing him expenses of the discussion, because he has only been successful in throwing expenses on the other party and in obtaining no other useful result at all. Although I think it is possible to take that view, I do not say that is the view I shall take in this case, although I think it is the view on which the First Division proceeded. What I mean is, that I think there may be perfectly reasonable grounds for refusing these expenses, and that being so, I think it was plainly necessary, if the defenders wished to have these expenses excepted from the general decree, that the defenders should have moved me to that effect before I pronounced decree. Then the matter might have been discussed. It is too late now to dispose of that matter, because I have given a decree which certainly carries these expenses, and which I think the Auditor is not entitled to touch, because he could not have disallowed these expenses without differing from the First Division, and therefore I think it is too late to disturb the matter.”