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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Elliot v. Shepherd [1896] ScotLR 33_495 (20 March 1896)
URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0495.html
Cite as: (1896) 23 R 695, [1896] SLR 33_495, [1896] ScotLR 33_495
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SCOTTISH_SLR_Court_of_Session
Page: 495↓
Court of Session Inner House First Division.
v.
Facts:
The Court, while bound to accept a jury's finding of fact, and while slow to depart from the general rule that costs follow the event, is entitled in determining the question of expenses to take into consideration the conduct of the successful party either during the litigation or in the matter which gave rise to it.
Where the judge presiding at a jury trial awarded the successful party modified expenses on account of his conduct both before and during the litigation, the Court adhered, on the ground of the judge's superior knowledge of the facts of the case.
Circumstances in which held by Lord Kyllachy, Ordinary, and affirmed by the Inner House for the reason above stated, that the successful defender in an action of damages for slander was entitled only to modified expenses. Harnett v. Vise, L.R., 5 Ex. D. 307, approved.
Adam Shepherd, solicitor, Wick, raised an action of damages for slander against Samuel Elliot, doctor of medicine, Wick.
The pursuer averred that he had been on terms of intimacy and friendship with the defender until recently when the defender conceived an animus against him; that upon one occasion when in company with another person he had met the defender, who, addressing the pursuer's companion, said, “Good morning, I am sorry to see you in such company,” meaning thereby that the pursuer was a man of such bad character as not to be fit to associate with respectable persons.
The defender admitted the meeting, but denied having used the words libelled.
The pursuer further condescended on two subsequent occasions, in the Caithness Club and in the defender's house, on which the defender had called the pursuer a “dirty, low, unprincipled fellow,” and a “dirty low scum.”
The defender denied having used the language attributed to him, and with regard to the first of these occasions explained that the pursuer, not being a member of the club, and having, contrary to the rules of the club, been there as the guest of a member, the defender had called the attention of the pursuer's host to these facts, whereupon an altercation had ensued.
Issues were adjusted appropriate to the pursuer's several averments, and the case went to trial before a jury.
The defender in evidence admitted that on the occasion first complained of he had said “Good morning, I am sorry to see the company you are in,” but explained that he did not mean the statement in a slanderous or offensive sense. It further appeared that the pursuer's agents wrote to the defender detailing the alleged slanders and expressing their client's willingness to accept an apology; that this letter was unanswered for a fortnight, and that then the defender's agents wrote a curt note in reply stating that both the slanderous statements attributed to the defender were untrue. The defender also admitted that having gone into the club and found the pursuer and his host there he at once said, “I object to that person's presence in this room;” that he rang the bell and asked the club attendant to “remove this person;” and that he himself had frequently taken the pursuer into the club as his guest before he quarrelled with him.
The jury returned a verdict for the defender.
On 29th January 1896 the Lord Ordinary (
Kyllachy ) pronounced an interlocutor applying the verdict, assoilzieing the defender, finding him entitled to expenses subject to modification, and modifying the same to half the taxed amount thereof.Note.—“The defender has obtained absolvitor and is therefore prima facie entitled to expenses. But that question is always in the discretion of the Court both in jury trials and in proofs. In this case I am of opinion that the defender should have expenses, but subject to modification. It appears to me, in the first place, that the defender's pleadings in respect of the first issue were, to say the least, not candid; and I think the same observation applies to
Page: 496↓
his attitude when an explanation was asked and an apology demanded by the pursuer's agent. I think I am also entitled to take into account that upon his own showing the defender here provoked this action; that he behaved badly throughout; that if he did not slander, he persistently insulted the pursuer, his motive being a private quarrel, and that in the final scene in the club, which was the immediate cause of the action, his insults got the length of, to say the least, conduct unworthy of a person in his position. On the whole matter I think I deal leniently with the defender in restricting the modification to one-half of the expenses.” The defender reclaimed, and argued—There was an absolute rule of practice that where success was all on one side the Court would give expenses to the successful party. The only exceptions were ( a) cases of divided success, and ( b) cases where the damages awarded were nominal, and these cases were now provided for by the Court of Session Act 1868, sec. 40. The rule was well exemplified in Boss v. M'Bean, December 6, 1845, 8 D. 250, which would have been a much stronger case than the present for departing from it. Here the defender had been absolutely successful, yet on account of facts entirely outwith the issue, the Lord Ordinary had deprived him of half his expenses. To sustain such a decision would be to run counter to the public policy of jury trial, and to invite a discussion on expenses in every case.
Argued for the pursuer—There was no hard and fast rule as to expenses in jury trials, but the decision of the matter was left in the hands of the judge, just as it was in cases where the judge sat as a jury or in appeals from the Sheriff Court to the Court of Session— Ewart v. Brown, November 10, 1882, 10 R. 163. The true principle had been illustrated and laid down in Dick v. Stewart, February 13, 1836, 14 S. 478; Mason v. Tait, July 2, 1851, 13 D. 1282, per L. J.-C. Hope, p. 1285, per Lord Murray, p. 1288; Bae v. M'Lay, November 20, 1852, 15 D. 30; and Bogers v. Dick, February 4, 1864, 2 Macph. 591, per Lord Deas, p. 593. In the two last cases, moreover, there were expressions of opinion to the effect that the Court would he guided mainly by the opinion of the judge who presided at the trial.
At advising—
Lord President—The principle upon which the Court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it. The general rule for applying this principle is that costs follow the event, the ratio being that the rights of parties are to be taken to have been all along such as the ultimate decree declares them to be, and that whosoever has resisted the vindication of those rights, whether by action or by defence, is prima facie to blame. In some cases, however, the application of the general rule would not carry out the principle, and the Court has always, on cause shewn, considered whether the conduct of the successful party, either during the litigation or in the matters giving rise to the litigation, has not either caused or contributed to bring about the law-suit.
The reclaimer does not question the propositions which I have thus stated, but he has maintained that in actions tried with a jury the Court has no discretion, and the rule is absolute that costs follow the event. His argument was put, as I should think, needlessly high in two respects—first, because in no possible view can the function of the jury conflict with the consideration by the Court of the conduct of the litigation; and, second, because in many causes tried with a jury the conduct of the litigants antecedent to the litigation enters only in the slightest and most incidental manner into the subject of the jury's consideration. In questions of boundary, of right-of-way, of mercantile contract, and in numerous other instances, the conduct of the litigants touches but little, if at all, the trial of the issue.
In the case actually before us, and more or less in all actions for defamation, the conduct of the parties was necessarily and directly considered by the jury. But, then, it was so considered with reference solely to the questions in the issues. The jury had no duty or right to consider the question of expenses. Accordingly, if the reclaimer's argument be sound, the result is that in cases tried with a jury nobody can consider the conduct of the successful litigant as bearing on his right to costs. For the elimination in jury causes of this element, proper to the just determination of the question of expenses in all other cases, no reason can be suggested on the ground of principle. There is no difference in the nature of those cases which are generally tried with a jury which can found such a distinction. Accordingly it was rather argued as if this was, so to speak, a mechanical necessity of the conditions of jury trial. I am quite unable to see it. There is no incompatability between the function of the jury in answering the issue and function of the Court in examining the same material for the decision of the separate question of expenses.
The exercise of this jurisdiction in cases tried by a jury is delicate, but the principles to be followed are clear and are well illustrated in Harnett v. Vise, 5 Ex. D. 307. The Court, however it may dissent from the verdict, must not take upon itself to overrule the finding of fact. In the present case, accordingly, it is to be assumed that there was no defamation But well within this admission there may be ample material for cause being shown that the conduct of the successful defender had been such as to conduce to the litigation.
I have only to add that, as far as I have observed, the Court exercises considerable reserve in departing from the general rule that costs follow the event, and where the conduct of the parties has already been considered by a jury, although for a different purpose, probably an additional reason is furnished for caution in entering on doubtful questions. In the present case,
Page: 497↓
The Court adhered.
Counsel for the Pursuer— J. C. Thomson— M'Lennan. Agent— Alex. Mustard, S.S.C
Counsel for the Defender— Jameson— Watt. Agents— A. & S. F. Sutherland, S.S.C.