Scottish Court of Session Decisions

Lord Trayner—The pursuer raised two actions of damages for slander, one against the defender Adams as having authorised and instructed the other defender (who was his law-agent) to write the letters complained of, and the other against the law-agent on account of statements in one of the letters made as of his own knowledge, and not merely as the agent of Adams. Separate issues were adjusted, but the trials were taken together. In the case against Adams the pursuer was successful; in the other case the verdict was for the defender.

In taxing the account of the pursuer's expenses in the case against Adams the Auditor has allowed the whole expenses; but in taxing the account for Dunlop he has allowed the full expenses down to the trial, but only half of the expenses after that date. The defenders object to this mode of dealing with the accounts, and maintain either that only one-half of the expense of the trial should be allowed to the pursuer, or that the whole expense of the trial should be allowed to Dunlop. I think the Auditor is right in what he has done, and that the objection to his report should be repelled. It is the fact, not disputed, that the expense allowed to the pursuer by the Auditor is just what it would have been had there been only one defender. That expense is what Adams has been found liable for, and for that expense accordingly the pursuer is now entitled to decree. On the other hand, Dunlop, being associated in his defence with Adams, had to pay, and only did pay, one-half of the amount of counsel's fees and other expenses of the trial. If he gets that half of these expenses, he gets all he expended, and all that the pursuer occasioned by his action in which he was unsuccessful. If the whole of Dunlop's account as stated by him was allowed, that would be giving him more by one-half than the expense he has incurred, or if he shared the surplus with Adams, that would be in effect giving decree in favour of Adams for one-half of the expense of the trial, to which he is not and has not been found entitled. The Auditor has given the pursuer the whole expense to which he was put by having to proceed against Adams—nothing more. He has given Dunlop the whole expense to which he was put, and which he disbursed, in the action in which he was successful—nothing less. The result in my opinion is that the Auditor has carried out exactly what we determined in the matter of expenses, and that the principle on which he has proceeded is right.

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