Scottish Court of Session Decisions

In this case the First Division dismissed the action as incompetent, and found the defender entitled to expenses. The pursuer now objected to the Auditor's report on the ground that he ought to have disallowed the whole expense of the proof, in the exercise of the power given him by the regulations contained in the Act of Sederunt of 15th July 1876.

The fifth of the general regulations as to the taxation of accounts contained in that Act provides as follows—“Notwithstanding that a party shall be found entitled to expenses generally, yet if on the taxation of the account it shall appear that there is any particular part or branch of the litigation in which such party has proved unsuccessful, or that any part of the expense has been occasioned through his own fault, he shall not be allowed the expense of such parts or branches of the proceedings.”

It was argued for the pursuer that the necessity for a proof had been caused by the nature of the defence stated, and that as the proof had turned out to be unnecessary the Auditor should have disallowed the whole expense of it.

The defender argued, inter alia—The regulation referred to did not enable the Auditor to disallow a party found entitled to expenses the expense of the proof. The question whether that expense should be disallowed was for the Court not the Auditor, and it was too late to raise it now.

At advising—