Scottish Court of Session Decisions

In this case (decided 7th March 1885, and reported supra, p. 529) the Court dispensed wholly with printing, on the motion of the pursuer and appellant, who was successful in his appeal, and was found entitled to expenses in the Inferior Court and in the Court of Session.

Page: 795↓

In his account of his expenses in the Inferior Court the appellant charged one copy of the record, proof, and other proceedings for the use of his agents, the cost being £8, 5s. In his account of expenses in the Court of Session he further charged—“Two copies appeal to lodge, 220 sh.” at £16, 10s., founding on the Act of Sederunt, 10th March 1870 (anent Probation and Appeals from Inferior Courts), sec. 3, and also a “copy for counsel,” at £8, 5s. Each of these copies included a copy of the note of appeal, record, interlocutor, and proof. The above Act of Sederunt enacts—“The appellant shall during session, within fourteen days after the process has been received by the Clerk of Court, print and box the note of appeal, record, interlocutors, and proof, if any, unless within eight days after the process has been received by the clerk he shall have obtained an interlocutor of the Court dispensing with printing in whole or in part, in which case the appellant shall only print and box as aforesaid those papers the printing whereof has not been dispensed with, and if printing has been in whole dispensed, with, shall lodge with the Clerk of Court a manuscript copy of the note of appeal, furnishing another copy to the Clerk of the Lord President of the Division.” The Auditor allowed the cost of the copy of the proceedings charged in the Sheriff Court account, but disallowed the charge for two of the copies in the Court of Session account, and in allowing the charge for the third, reserved for the determination of the Court the question of the liability of the defenders for it.

In a note to his report the Auditor stated that he “very much doubted whether, if the Act of Sederunt was to be literally construed, the cost of the copy he had allowed could be sustained. A distinction is here made between what is to be printed where printing has not been dispensed with, and what is to be lodged in manuscript with the Clerk of Court and the Clerk of the Lord President of the Division where printing has been wholly dispensed with. Where printing is not dispensed with, the papers to be boxed are ‘the note of appeal, record, interlocutors, and proof, if any.’ Where printing is wholly dispensed with, the only paper to be lodged with the Clerk of Court is a ‘manuscript copy of the note of appeal.’ In the present case the appellant's agent appears to have read the Act of Sederunt as if the words ‘note of appeal’ were a short mode of describing the whole papers referred to in the previous portion of the section. According to practice, the note of appeal is not now a separate paper, and in the present case is thus entered in the interlocutor sheets of the Inferior Court process—‘ Glasgow, 26th December 1884.—The pursuer appeals to the Second Division of the Court of Session.’ This is the usual form, and it is difficult to imagine any practical purpose which can be served by the delivery of copies of such a note to the Lord President and Clerk of the Division of the Court. On the other hand, it seems not unreasonable that (while the Court are willing to submit to some inconvenience for the sake of reducing expense in the conduct of certain cases) one full copy of the Inferior Court proceedings should be furnished for the use of the bench, the counsel on either side making use of the copies prepared by the agents in the course of conduct ing the case in the Inferior Court. I may perhaps be permitted to take this opportunity of directing attention to the expense likely to be incurred when printing is dispensed with. That course is adopted for the purpose of economy, but while it may diminish the costs incurred by the party appealing, it does not, I am satisfied, diminish expense when the costs of both parties are considered. The table of fees provides that where more than three copies “of papers are required printing must be resorted to, on the assumption that the cost of a larger number of manuscript copies exceeds the cost of printing. I am satisfied that cases of any importance coming into the Court by appeal from inferior courts cannot be conducted satisfactorily without a larger number of copies than three.

"Where an appellant comes into Court in forma pauperis it may be proper to dispense with printing, having regard to the burden laid on the agents for the poor, who must themselves pay the expense of printing, if incurred, without any certainty of being reimbursed, but it is, I think, for consideration how far a party who is not on the poor's—roll is entitled to this consideration at the cost of increased expense to the respondent and inconvenience to the agents and counsel on both sides, and also to the Court.”

Both parties objected to the Auditor's report.

The pursuer argued—That he was entitled to charge one copy of the whole proceedings for the use of his counsel, and also under the Act of Sederunt to charge for two other copies, one for the process, and the other for the Lord President of the Division.

The defenders argued—That the Act of Sederunt did not make them liable for anything more than two copies of the bare note of appeal without the record and proof. The Court had the original copy in process for their use, and counsel had the Sheriff Court copy, and that was all that was necessary.

At advising—