Scottish Court of Session Decisions

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Cite as: [1900] ScotLR 37_282, [1900] SLR 37_282

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SCOTTISH_SLR_Court_of_Session

Page: 282↓

Court of Session Inner House First Division.

Thursday, January 11. 1900.

37 SLR 282

Teacher's Trustees

v.

Calder.

( Ante, July 24th 1899, 36 S.L.R. 949, 1 F. 51.)

Subject_1Expenses
Subject_2Divided Success
Subject_3Petition to Apply Judgment of House of Lords.
Facts:

A petition was presented to apply the judgment of the House of Lords by the appellant in a case in which there was divided success, the order of the House of Lords being that “neither of the parties is entitled to decree for the expenses of process incurred in the Court of Session.” The appellant, however, was found entitled to the expenses of the appeal to the House of Lords. In a question as to the expenses of the present application, the Court allowed no expenses to either party.

Headnote:

This case is reported ante, ut supra.

On 10th March 1896 an action was raised at the instance of Adam Teacher, wine merchant, Glasgow, against James Calder, timber merchant, Glasgow, concluding for an accounting as to the business of Calder & Company, for payment to the pursuer of two sums of £10,000 and £15,000, and for reduction of certain certificates granted by Mr Gairdner, C. A., as auditor of the books of the firm.

The Lord Ordinary ( Low) on 28th May 1897 dismissed the action.

The First Division on 25th February 1898 recalled the Lord Ordinary's interlocutor, and decerned against the defender for payment of £250 of damages, and quoad ultra dismissed the action.

The petitioner appealed to the House of Lords, who on 24th July 1899 made the following order:—“That the said interlocutor of the Lords of Session in Scotland of the First Division of the 25th of February 1898,
Page: 283↓
except in so far as recals the interlocutor of the Lord Ordinary dated 28th May 1897, and decerns against the defender for payment to the pursuer of £250 sterling of damages, be and the same is hereby reversed, and this House finds, and it is hereby declared, that the audits made by Mr Charles D. Gairdner for the years ending upon the 30th day of April in the years 1890, 1891, 1892, and 1893, and the relative certificates granted by his firm, were not made or granted in accordance with the terms of the minute of agreement dated 11th April 1889: And it is further ordered that subject to the said finding and declaration, the cause shall be and the same is hereby remitted back to the Court of Session in Scotland, with directions (1) to take an account in terms of the said minute of agreement of the nett profits of the firm of Calder & Company for the year ending 30th April 1890, and for the four following years; and (2) to assoilzie the respondent (defender) from the whole conclusions of the summons, in so far as the same are founded upon the alleged fraud or fraudulent misrepresentation of the respondent; and it is further declared that neither of the parties is entitled to decree for the expenses incurred in the Court of Session; and it is further ordered that the said respondent do pay or cause to be paid to the said appellants by revivor the costs incurred by them in respect of the said appeal to this House.”

The pursuers applied to the First Division to apply the judgment of the House of Lords, and craved the Court to find them entitled to the expenses of the present application.

The respondents contended that as this was a case of divided success, no expenses should be allowed.

Judgment:

Lord M'Laren—I think the key to the solution of this question of the expenses of the petition to apply the judgment, is to be found in the judgment itself. According to this test, the case is shown to be one of divided success, because the order is that “neither of the parties is entitled to decree for the expenses of process incurred in the Court of Session.” Now, it is necessary that one of the parties should present a petition to apply the judgment of the House of Lords, and that the other should appear in order to see that everything is in order. No doubt the former will be subjected to the small extra expense of printing the petition, but I think that this is a proper case for allowing no expenses to either party.

The Lord President, Lord Adam, and Lord Kinnear concurred.

The Court pronounced this interlocutor:—

“Apply the said judgment of the House of Lords, and (1) remit the cause to the Lord Ordinary to take an account, in terms of the minute of agreement set forth in the petition, of the net profits of the firm of Calder & Company for the year ending 30th April 1890, and for the four following years, and (2) assoilzie the defender from the whole conclusions of the summons in so far as the same are founded upon the alleged fraud or fraudulent misrepresentation of the defender, and decern: Find neither party entitled to the expenses of the petition.”

Counsel:

Counsel for Petitioners— Cullen. Agents— Carmichael & Miller, W.S.

Counsel for Respondent— Salvesen, Q.C. Agents— Alexander Morison & Co., W.S.
1900