Scottish Court of Session Decisions

Lord Young—In this case the Sheriff-Substitute on 27th February 1900 pronounced the following interlocutor:—“In respect parties concur in stating that the action has been settled except as regards the question of expenses, and on joint motion, sends the case to the motion roll of this day week.” Then following up that interlocutor the Sheriff-Substitute on 17th March pronounced an interlocutor finding the defenders entitled to expenses since the debate, and quoad ultra finding no expenses due. That interlocutor was appealed to the Sheriff, who on 18th June recalled the Sheriff-Substitute's finding as to expenses, and found the pursuers entitled to expenses, subject to a deduction of one-third from the taxed amount, and ultimately decree was pronounced against the defenders for £19, 19s. 7d., being the amount of the expenses to which the pursuers were entitled under the Sheriff's interlocutor, and for £1, 10s. besides, as the expenses of the debate on the Auditor's report.

Now, I confess that my strong impression—indeed more than impression—is that the Sheriff would have acted more judiciously if he had abstained from interfering with the Sheriff-Substitute's judgment in the matter of expenses. But notwithstanding my impression that the Sheriff-Substitute's judgment should not have been interfered with, I have an equally strong impression against the propriety of an appeal to this Court in a case of this sort, especially as we have no precedent for such an appeal except the case of Fleming, where the Court, in face of a strong dissent by Lord Deas, sustained the competency of an appeal against the judgment of a Sheriff on a question of expenses merely. Although I think that the Sheriff ought not to have interfered with the Sheriff-Substitute's judgment, nevertheless upon general considerations of discretion and good sense, to which I think it well to attend in the interests of the public, I am more than indisposed to countenance an appeal to this Court upon a mere question of expenses in such circumstances and for such sums as we have here. The result is, that although I am disposed to think that I myself would have come to a different conclusion from that of the Sheriff, I am of opinion that we ought to refuse this appeal.

Lord Trayner—With regard to the competency of this appeal, I think that the case of Fleming is a sufficient authority for us to sustain the appeal as competently before us. Assuming the competency of the appeal, as I understand your Lordship also to do, I sympathise very strongly with the view expressed by your Lordship as to the inexpediency of an appeal to this Court about a question as to expenses, especially where the amount is so trifling as £19. At the same time I am somewhat embarrassed in reaching the conclusion to which your Lordship has come by reason of the consideration that I think the Sheriff's judgment is wrong and that of the Sheriff-Substitute right. I cannot say that I have a very strong opinion on that point, because I do not feel confident I am fully acquainted with the circumstances and the procedure in the Sheriff Court, but looking at the case as it was presented to us here I think that the interlocutor of the Sheriff-Substitute was right. If the appeal to us is competent, and if I am to exercise my independent judgment on such materials as the parties have brought under our notice, the conclusion to which I should come would be that we should recal the Sheriff's interlocutor and revert to that of the Sheriff-Substitute.

Lord Low—I am of the opinion expressed by your Lordship in the chair. I think that the case of Fleming is a sufficient authority for the competency of an appeal merely on a question of expenses. I think that the judgment in that case is sound, because cases may occur of such serious and obvious injustice as to make it desirable to have an appeal in order to remedy that injustice. But while I think that an appeal on a question of expenses merely is competent, I am of opinion that the Court ought not to sustain such an appeal unless that is necessary in order to set right an undoubted miscarriage of justice in the Court below. Now, in the present case my impression is that the Sheriff-Substitute dealt with the question of expenses in a very reasonable way. At the same time I am not prepared to say that the Sheriff is so clearly wrong as to make it necessary for us to interfere, especially when the amount at stake is only £19. I only wish to add that I think an appeal from the Sheriff-Substitute to the Sheriff stands, in this matter, in a very different position from an appeal from the Sheriff Court to this Court.

The Lord Justice-Clerk and Lord Moncreiff were absent.