Scottish Court of Session Decisions

Lord Mure—This is undoubtedly a very peculiar case. I have not my papers beside me at this moment, but enough has been stated at the bar to satisfy me that the circumstances are very special indeed. It is not disputed that the inquiries, the expense of which is sought to be recovered, related to matters relevant to the question at issue, and accordingly I think that unless the allowance of these charges is directly struck at by the rule regarding precognition, this is a case in which something should be allowed towards the expense of these inquiries. The investigation related to the conduct of a divorced woman who had presented a petition for access to her child, and it was most pertinent to the disposal of this petition that the Court should know what the petitioner was doing at the time of her application. I should therefore be disposed to remit back to the Auditor to hear the parties, and to make such allowance for these inquiries as he thought suitable.

Lord Shand—I have some difficulty about this case, and I cannot concur in remitting it to the Auditor. No doubt it turns out from these inquiries that the petitioner has been shown to have lived with her paramour since the divorce, but it is a settled rule of this Court that parties must make these preliminary inquiries at their own expense. This is a most salutary rule, and its observance prevents abuses. I think that the Auditor has acted properly, and that we should not depart in this case from the ordinary rule.

Lord Adam—I am in this position, that I do not know anything about the early procedure in this case but from what I have heard to-day. I am inclined to agree with Lord Mure that this is an exceptional case, and ought not to fall under the general rule.

When this petition was presented it was undoubtedly the duty of the respondent to make himself aware of his wife's doings that he might be in a position to supply the Court with the necessary information. This is not a case of the usual kind in which a mere patrimonial interest is involved; the respondent here was only doing his duty in making these inquiries, and all reasonable charges ought to be allowed.

Lord President—I am also inclined to make this case an exception to the salutary rule referred to by Lord Shand, that a party is not entitled to take precognitions prior to an order for proof or for issues except at his own expense. The present case does not fall under that rule. It is an application to the discretion of the Court, and in such applications the Court tries to avoid as much as possible all public and formal inquiry. It tries to get its information as much as possible by explanations and admissions of parties, and in order to obtain these expense must be incurred and should be allowed for. It is clear that the present case might not have terminated as it did but for the inquiries made by the respondent, and it is quite obvious from the explanations which were made that the petitioner is not a suitable person to have access to her child.

In such circumstances it would not be fair to the party who has made these inquiries and obtained this result that he should not be relieved to some extent of the expense which he has thus incurred.

There is another consideration which weighs with the Court in cases of this kind, and it is this, that the interests of the child have to be considered. Our duty is sometimes a difficult one, and it is very desirable to avoid as much as possible in the interest of the child anything of the nature of a formal proof.

On the whole matter I think that this is a case in which the ordinary rule does not apply.