Scottish Court of Session Decisions

Lord President—I think that the defenders are entitled to these recoveries.

They require a certain latitude in point of time in order to ascertain the average income of the pursuer; and I do not see very well how, without going back for a certain period—sufficiently long to overcome incidental variations—they are to be able to know what the worth of the pursuer's business, taking one year with another, really is. I confess I think three years is not an excessive demand on this point.

The pursuer, as Lord Rutherfurd Clark observed in the case referred to, puts his business in issue, and having said that he has suffered loss to his business, it is directly relevant to the question to ascertain what the profits were, taking one year with another, in his business. The jury will see what loss has been sustained by comparing one state of matters with another.

As regards the income-tax receipts, I confess I think that the defenders are entitled to them, and for the same reason. The income-tax receipts are available of course merely in so far as they show the profits on the business, but production of these documents cannot I think be said to be an invasion of the private affairs of the pursuer, who comes seeking damages for loss to his business.

It only remains that I should say that I do not think the case of Craig is a decision adverse to this view. That case doubtless differed from the present. The application in that case was to recover income-tax receipts for four years, and, so far as I can gather, the judgment of the Court was merely pronounced on that request in the aggregate. Certainly there is nothing in the opinions of the Judges which shows that their Lordships considered either the books or the income-tax receipts to be irrelevant to the matter which was to be tried, or unfit documents to be recovered.

I am therefore for granting the application.

Lord Adam—agree. There seems to have been some difference in practice in this matter. In my experience I always granted similar applications.

Lord M'Laren—I also concur. I agree in thinking that the case of Craig is not an adverse authority to the decision we are giving. As I read that case, the Court merely refused the motion as put before them, leaving it open to the applicant to come with a specification limited to a shorter period of time.

My experience, like that of Lord Adam, has been that recoveries of this kind have been frequently made and used in trials of actions for damages. I think there can be no doubt that where a pursuer claims compensation upon the footing of loss of profits it must be open to the defender, against whose estate the claim is made, to offer evidence in cross to that which the pursuer will no doubt put before the jury regarding the extent of his profits. That consideration, I think, covers not only the business books—I mean such books as are sufficient for ascertaining the amount of his profits—but also covers the case of income-tax receipts, because it seems to me that even if the receipts for income-tax showed a less amount of profit than the books it would be his profit during the year that must be considered.

If there be discrepancy the jury might draw from the discrepancy that this business was of a more or less precarious character, and that the profits actually shown in a year could not always be maintained.

Lord Kinnear—I concur with your Lordships, and I only desire to add that in allowing the recovery of the income-tax receipts we are of course not deciding how far and under what circumstances they could be direct evidence of the amount of profits earned by the person who has paid income-tax on those terms.

The pursuer himself will be put into the witness-box and examined as to his profits, and it will be in reference to his examination that the receipts will be available.