Scottish Court of Session Decisions

Lord Adam—In this case we have a reclaiming-note by leave against an interlocutor of the Lord Ordinary by which he has granted decree in favour of the pursuer for the sum of £20 to account of her expenses in the action. It appears from the statement made at the bar that the action is one of separation and aliment brought by a wife against her husband, and the husband, as I understand, denies the jurisdiction of the Court, a matter which will have to be decided in the Outer House. But we have nothing to do with that question just now. The present question is, whether or not the defender is to be allowed to proceed without the imposition of any condition as to payment. It appears to me that we have full power in a matter of this sort, and I think that the demand for £10 to enable the wife to proceed is quite a reasonable proposition, and that the sum asked is quite a reasonable amount.

Lord M'Laren and Lord Kinnear concurred.

The Lord President was absent.

The Court pronounced this interlocutor:—

“The Lords having heard counsel for the parties on the note for the pursuer, Appoint the cause to be put to the Summar Roll: Further decern against the defender for payment to the pursuer of the sum of £10 sterling to enable her to discuss the question raised by the reclaiming-note for the defender.”

Upon the reclaiming-note being called for discussion in the Summar Roll the defender and reclaimer argued—The Court could not give an award where its jurisdiction was challenged, for it might be found that it had no jurisdiction and consequently no right to entertain or consider the cause. Further, the Court would not give an award which could not be made operative, and that was the position here. The defender had no property in Scotland, and no help could be derived from the Judgments Extension Act 1868 (31 and 32 Vict. c. 54), as the defender was in Cape Colony— D'Ernesti v. D'Ernesti, February 11, 1882, 9 R. 655, 19 S.L.R. 436. This case was to be distinguished from Stavert v. Stavert (quoted supra), because there the defender had property in Scotland.

Counsel for the pursuer and respondent were not called upon.

Lord President—It appears to me that the question which has been argued to us was settled by a judgment of high authority pronounced in the case of Stavert v. Stavert ( 9 R. 519), which has regulated the practice ever since. Mr Wilton also told us that in an earlier stage of the case of Stavert an interim award of expenses was given. The decision in that case is really a fortiori of the present case, because the judgment was pronounced after the Court had found that it had no jurisdiction to entertain the action on its merits. The jurisdiction of the Court to deal with a question of expenses differs from its jurisdiction on the merits, and I should be sorry to disturb a rule which has governed the practice of the Court for so long a period, especially as it seems to be a reasonable rule.

Lord Adam—I concur.

Lord M'Laren—The question of the power of the Court to award expenses when the jurisdiction is disputed is by no means confined to consistorial cases. It would be very regrettable if, for example, when an unfounded action was brought against a person over whom there was no jurisdiction, we had not power to award expenses against the party who is found to be in the wrong. In such cases, according to our practice, costs are awarded in the ordinary course against the pursuer. In Stavert's case the judgment was rested on the ground that every Court has power to deal with the costs in such a question on the same conditions as it awards costs in all other litigated questions. Now, if that is so, I am unable to see why the fact that the question of jurisdiction raised is undecided should be any obstacle to the exercise of this power, especially as its exercise is necessary in order to enable the question to be tried.

Lord Kinnear—I also agree. I think the question is decided by Stavert's case, and I think we should follow that decision. The defender has been personally cited, and is here maintaining a plea in support of which he proposes to lead evidence. No doubt it is a plea to jurisdiction, and I assume that it may turn out to be well-founded. But whether the Court has jurisdiction or not to dispose of the action on its merits, we certainly have power to determine the question of jurisdiction which both parties submit for our decision; and since that cannot be done without procedure, it follows that each of the parties puts the other to expense in this Court, and there can be no question of the jurisdiction of the Court to decide upon which of the two such expense shall fall.