Scottish Court of Session Decisions

Lord President—It appears to me that there is no ground whatever for modifying the expenses. The pursuer in exercise of a legal right under the Judicature Act appealed to this Court. Down to this point the Corporation denied liability and made a serious defence on that ground, but after the case was brought here they, on advice, admitted liability. That was an important gain to the pursuer obtained by coming here, but apart from that, unless it could be shown that there had been some abuse in the procedure in this Court, I do not see how we can deny the pursuer the expenses which she has incurred in the exercise of what was her legal right. Having tried the case, I may say that I am quite clear that there was no abuse or misconduct of any sort in the way of leading excessive evidence, or in any other way. If it had been thought by the Corporation, when they saw their way to admit liability, that the case should go back to the Sheriff Court for the assessment of damages—that being the only question left—they might have made a motion to that effect. I do not say what the result of such a motion might have been, but they did not do so.

Lord Adam—I am of the same opinion. Mr Fraser's objection is more applicable as an objection to the Judicature Act than to anything else. But the Legislature were of opinion that a jury was an appropriate tribunal for determining the amount of a pecuniary claim in a personal action for damages, and accordingly gave a pursuer the right to come to this Court to get his claims so settled by the verdict of a jury. It appears to me that the Legislature must have intended that the expenses of having this question so settled should follow as a necessary consequence. That is absolutely a different point from our power to modify expenses in a case where anything in the conduct of the case has not been what it should be, either by the calling of too many witnesses or in some other way. That is a proper question for discussion, but I agree with your Lordship that in the present case there is no possible ground for not allowing the pursuer the expenses of coming here, as he had a perfectly legal right to come.

Lord M'Laren—I shall say nothing to the contrary of what has been proposed as the ground of judgment by your Lordships, because I agree that in the present state of the rules of Court it would not be fair to cut down the pursuer's claim for expenses. But I venture to say, speaking now from long experience of such cases, that there is a real hardship to public bodies, employers of labour, and others, when they have to contest claims which never could be valued at more than a few pounds under the penalty of paying a sum of expenses altogether disproportionate to the amount found due. I may add that this liability extends even to the case where the defender is successful, for in such cases he is unable to recover his expenses from the other party. It has been found practicable to establish two scales of taxation in the Sheriff Court, and I do not know of any insuperable difficulty in the way of doing the same thing in this Court. This has not been proposed; at all events it has not been done. As there is only the one scale of taxation it must be applied.

Lord Kinnear—I agree with your Lordship in the chair and with Lord Adam. It may be that under the existing rule there are hardships in certain cases, but whether the enactment in question would involve hardship or inconvenience and what provisions should be made in consequence were questions for the Legislature when the Judicature Act was passed, and may be questions for the Legislature again if it is proposed to alter the law. But it cannot be altered by this Court. In the meantime we must follow the rule laid down for us. I can see no ground for modifying expenses,

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