Scottish Court of Session Decisions

2. The next matter in controversy relates to the expenses of the four actions claimed by the pursuers. The Auditor has allowed the full expenses of the action first raised and also of one of the actions raised in the month of June last, but as regards the other two actions raised in June he has practically disallowed all the expenses except those incurred with reference to the adjustment of the issues. The view, as explained to us, on which the Auditor proceeded, is that the three actions raised in June might and should have been combined by the pursuers; he accordingly allows the expenses of one action, and one action only, against the defenders. The defenders object to this in so far as the full expenses of one of the actions raised in June is concerned on the ground that the whole four claims of the four pursuers might and should have been stated in the action brought in March, and that no more than the expenses of one action should he allowed. The pursuers object on the other hand to the disallowance of the expenses of (what I may call) the third and fourth actions, on the ground that each pursuer was entitled to bring her action separately, and that the expenses as for one appearance should only commence when the pursuers did combine for the trial. If the Auditor's view is right, I can scarcely see on what principle he allows the full expenses to the pursuer of the second action and disallows them to the pursuers of the third and fourth actions. Applying his principle strictly, the Auditor should have allowed to each of the three pursuers who brought their actions in June a proportion, probably one-third, of the full expenses, and not have given the full expenses to the one pursuer and none to the other two. But I think the view of the Auditor on this matter is wrong. Each pursuer was entitled to bring her own action. The whole pursuers ought perhaps to have combined their claims in one summons, but they were not bound to do so. They were as much entitled to have separate actions as separate issues. I think therefore the pursuers of the third and fourth action (I mean the pursuers Jeanie Walker and Elizabeth Macfarlane) are entitled to have their expenses from the raising of their actions down to the time when the cases went to trial. The objection by the defenders on this head falls in my opinion to be dismissed, and the objections by Jeanie Walker and Elizabeth Macfarlane sustained.

3. The only other objection is stated by the successful defenders to the disallowance of the charge made by them for one-half of the fees paid to the jury, one-half of the expenses of the refreshment for the jury, and the fee fund dues of the account of expenses. These objections, I think, should be repelled. The defenders cannot charge the pursuers with the fee paid to the jury, as these charges fell upon the unsuccessful defenders only and were not, or should not, have been paid in whole or in part by these defenders. The expense of the refreshments provided for the jury may stand in a different position, although I do not know that it does. It is, however, so small a matter that I would not interfere with what the Auditor has done, who must know the prevailing practice and has doubtedly given effect to it. The reduction of the defenders' account by taxation, reduced the fee funds exigible on the defenders' account, and this is what the Auditor has given effect to.

The result is that the objections taken by the pursuers Jeanie Walker and Elizabeth Macfarlane should be sustained and the accounts in their actions be sent back to the Auditor to give effect to this opinion. Quoad ultra I think all the objections should be repelled.

The Lord Justice-Clerk, Lord Young, and Lord Moncreiff concurred.