Subject_1Process Subject_2Expenses Subject_3Decree for Expenses in Accessory Action Subject_4Effect on Procedure in Original Action.
Facts:
A woman who had brought an action of count, reckoning, and payment against the executrix-nominate under her father's settlement, raised, while that action was still pending in the Outer House, another action against the same defender for reduction of the settlement. She failed in the reduction, and was found liable in expenses, which were taxed at £105. The utmost which she could recover in the original action was £100.
Held that the expenses in the reduction were to be regarded as expenses incurred in the original action, and that the Lord Ordinary had rightly
refused in hoc statu a motion for a proof in that action, in respect the taxed expenses in the reduction had not been paid
Headnote:
On 8th November 1883 Mrs Isabella Kinloch or Irvine brought an action of count, reckoning, and payment against her sister Miss Jessie Kinloch, as executrix-nominate of the deceased James Kinloch, the father of the pursuer and the defender. This action was sisted in order to enable the pursuer to bring another action against her sister for reduction of their father's settlement. That action was unsuccessful, and the pursuer was found liable in expenses, which were taxed at £105. She then moved for a proof in the original action. The defender objected to the motion being granted until the pursuer had paid the expenses, which she had not done. It was admitted that the utmost which the pursuer, if successful, could recover in the original action was £100, though she stated that she had a further claim on other grounds against her father's estate.
On 24th October 1885 the Lord Ordinary (
Fraser) pronounced this interlocutor—“In respect the pursuer has not paid the taxed expenses in the action of reduction at her instance against the defender, refuses in
hoc statu the pursuer's motion for a proof.”
The pursuer reclaimed.
Authorities cited—
Struthers v. Dykes, February 10, 1848,
10 D. 675;
Magistrates of Dundee v. Morris, December 14, 1856,
19 D. 168;
Wallace v. Henderson, December 22, 1876,
4 R. 264.
Judgment:
At advising—
Lord Justice-Clerk—I think this case must be decided on its own particular circumstances. I cannot say that I differ from the Lord Ordinary, though I must own that my first impression was against allowing this obstacle to be placed in the way of the pursuer proving her case, because the expenses for which she has been found liable but has not paid were incurred in another action. But the facts are very special. This is an action substantially for the distribution of the effects of the deceased James Kinloch, the father of the pursuer and also of the defender., who is his executrix-nominate. After bringing this action the pursuer raised another action, also against her sister, in which she concluded for the reduction of their father's settlement, and of course if she had been successful in that action that would have put an end to the present one. But she failed and was found liable in payment of the defender's expenses, amounting to about £105, and these expenses have not yet been paid. In these circumstances I cannot say that I think the Lord Ordinary has taken an unreasonable view in holding that the expenses in the action of reduction are to be treated as really expenses in the present action, which must be paid as a condition of allowing the pursuer to proceed farther with her case.
Lord Young—I am of the same opinion. Mr Rhind candidly conceded that the question was to be regarded as in no way different from what it would have been had the expenses actually been incurred in the present action. The action of reduction being incidental to this one, the expenses arising out of it are expenses relating to a step of procedure in this action just as much as if it had been within the present summons. Once the action of reduction was decided, the present action proceeded on the footing that the deed sought to be reduced was to stand. Now, I think it is within the discretion of the Court to decline to allow a pursuer to proceed with his action except on condition of paying his adversary's expenses up to date. I say that is within the discretion of the Court. There may be cases in which it is equitable that a pursuer should not be permitted to proceed further with his action until he has paid the expenses for which he has been found liable up to the particular stage which the action has reached. That is what the Lord Ordinary has done here, and in the circumstances I can see no ground for altering his judgment.
Lord Craighill—I have come to be of the same opinion. It is now conceded that the question is to be treated as one regarding expenses incurred in the present case, and the question is, whether looking to the whole circumstances it is reasonable that the defender should be bound to go on litigating with the pursuer without having received payment of such expenses as have been found due to her. Fortunately we are not going to lay down any general principle beyond this, that the matter is one which is within the discretion of the Court. We are not going to say that in every case in which expenses have been found due, payment of these expenses must be a condition of further litigation. The question is, whether such payment is reasonable in the present case, and I think it is, and for this reason—The expenses which are here in question amount to about £105, while it is admitted that all the defender could recover in the present action is about £100. So that even if successful she would recover nothing, and the defender might have to incur a great deal more expense, which would be absolutely irrecoverable even if the pursuer got decree for the full amount. These are the circumstances in which the Court has to exercise its discretion in the present case; and in these circumstances I think the Lord Ordinary has exercised
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that discretion rightly, and that his judgment consequently ought to be affirmed.
Lord Rutherfurd Clark—I do not differ. The Lord Ordinary has refused the motion
in hoc statu, and of course it will be open to the pursuer to renew her motion whenever the
status has altered. Perhaps she may be able to induce the defender to give her a charge on the decree for expenses.
The Court adhered.
Counsel:
Counsel for Pursuer—
Rhind—
Gunn. Agent—
D. Howard Smith, Solicitor.
Counsel for Defender—
Moncreiff. Agent—
David Hunter, S.S.C.
