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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shearer v. Malcolm [1899] ScotLR 419_1 (16 February 1899)
URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0419_1.html
Cite as: [1899] ScotLR 419_1, [1899] SLR 419_1
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SCOTTISH_SLR_Court_of_Session
Page: 419↓
Court of Session Inner House Second Division.
[
v.
(Ante, July 19, 1898, vol. xxxv, p. 924.)
Facts:
In an action of damages for personal injuries brought originally in the Court of Session the pursuer obtained a verdict for £25. The Court, in respect of the smallness of the sum recovered, modified the expenses from £139, 5s., the amount as taxed, to the sum of £100.
This case, which is reported ut supra, was tried before the Lord Justice-Clerk and a jury, when a verdict was returned for the pursuer, damages £25.
On 17th December 1898 the pursuer moved the Court to apply the verdict, and for expenses.
Counsel for the defender moved the Court to allow only expenses on the Sheriff-Court scale, in respect of the smallness of the sum recovered, which showed that the action should not have been brought in the Court of Session, and referred to the case of Jamieson v. Hartil, February 5, 1898, 25 R. 551.
Counsel for the pursuer maintained that he was entitled to full expenses. This was not an appeal for jury trial as in Jamieson, cit. The pursuer had recovered a sum for which she was entitled to sue in the Court of Session.
The Court pronounced this interlocutor:—
“Apply the verdict: Decern against the defender for payment to the pursuer of the sum of £25 sterling: Find the pursuer entitled to expenses subject to modification, and remit to the Auditor to tax the same and to report, reserving the amount of modification.”
The amount of the account as taxed was £139, 5s.
Counsel for the pursuer maintained that the modification should be slight, otherwise the pursuer, who had succeeded in an act ion which she was entitled to bring in the Court of Session, would be out of pocket as the result of her success. It was to be observed that in this case the defender had never offered to pay anything by way of compensation to the pursuer for the injuries which she had sustained through his fault. He referred to Lumsden v. Great North of Scotland Railway Company, May 24, 1870, 8 Macph. 791.
Counsel for the defender asked for a substantial modification.
The Court pronounced this interlocutor:—
“Approve of the Auditor's report on the pursuer's account of expenses: Modify the said expenses to the sum of £100 sterling, for which decern against the defender, and allow this decree to go out and be extracted in name of Messrs Sibbald & Mackenzie, agents—disbursers.”
Counsel for the Pursuer— Munro. Agents— Sibbald & Mackenzie, W.S.
Counsel for the Defender— Graham Stewart. Agents— Mylne & Campbell, W.S.