Scottish Court of Session Decisions

The question in this case was whether, in an action at the instance of pupil pursuers against their father, the successful defender or a party alleged to have been dominus litis, and who admittedly had instructed the action, was liable in the expenses of a curator ad litem appointed to the pursuers.

The action was at the instance of Christian Margaret Knox Walker and George Stewart Walker junior, the pupil children and next-of-kin of the deceased Mrs Alice Knox or Walker, against their father George Stewart Walker, residing at 62 High Street, Dunbar, as alleged executor of his deceased wife, and Mrs Susan Forsyth Kerr Knox or Murray, widow, for any interest she might have.

The summons concluded for reduction of a pretended will of the deceased Mrs Walker dated 13th October 1900, under which her husband was executor, on the ground, inter alia, of facility and circumvention on his part, and for count and reckoning and payment of legitim.

The pursuers averred that Mrs Murray, who was their aunt, was called for her interest as executrix of the deceased under a deed dated 22nd October 1892, and for her interest under a deed of gift dated 17th October 1900, and they also averred as follows:—“This action is raised in the names of the pursuers upon Mrs Murray's authority and instructions. She was specially charged both verbally and by the said deeds with their interests by hersister before she died. She has no personal interest of her own in seeking to vindicate the rights of the pursuers, and she desires that a curator ad litem should be appointed to the pursuers” as the interests of their father and tutor-in-law “are antagonistic to their interests.”

The defenders answered—“(Ans. 16) Denied that the defender has interests antagonistic to those of his children, or such as to warrant the appointment of a curator ad litem.”

A curator ad litem was appointed, and he restricted the conclusions of the summons to a demand for payment of legitim.

On 2nd July 1902 the Lord Ordinary ( Stormonth Darling) assoilzied the defender upon the ground that there was no free moveable estate available for payment of legitim, and found him liable in expenses to the curator ad litem from the date of his appointment.

Opinion.—[After dealing with the merits of the cause his Lordship proceeded]—“This is one of those exceptional cases in which success, instead of being followed by a finding for expenses in favour of the successful party, must entail a finding for expenses against him. The result arises from the circumstance that the party with whom the defender has been litigating is a curator ad litem appointed by the Court, and entitled to the protection of the Court. The question at issue was a perfectly proper one to litigate, and the curator who was appointed to consider it decided, in the exercise of his discretion, to test it in the Outer House. In the event his contentions have proved unsuccessful, but he is none the less entitled to recover his expenses, and I must give decree for the amount of them when ascertained against the only other person who is in the process, and can be made liable for them. That person is the administrator-in-law of the curator's wards. He also happens to be the successful party, but that is an accident which I cannot help.

“It may be, and from certain statements on record it appears very probable, that an aunt of the pupil pursuers is the true domina litis. But that question, if contested, must be raised in a separate process, for there are no materials for an operative decree against her in the present action. The dicta of Lord Adam in Kerr's case were certainly obiter, but I have no wish to call them in question, for they seem to figure a case where the dominus litis either appears in the process originally or is brought into it in some way, while here Mrs Murray is in no sense a party to the process, however much she may have inspired it. I shall accordingly find the curator ad litem entitled to his expenses from 28th June 1901 against the defender.”

The defender Walker reclaimed, and argued—The curator ad litem had been appointed at the instance of Mrs Murray, and the defender was under no obligation to pay his expenses— Studd v. Cook, May 8, 1883, 10 R. (H.L.) 53, 20 S.L.R. 566; Johnstone January 9, 1885, 12 R. 468, 22 S.L.R. 291. Mrs Murray was domina litis, and even if she had not been named in the summons she might have been held liable in expenses— Mitchell v. Baird, May 21, 1902, 4 F. 809, Lord Kinnear, p. 811, 39 S.L.R. 682; The pursuers had sued as her agents— Kerr v. Employers' Liability Assurance Corporation, October 20, 1899, 2F. 17, 37 S.L.R. 21.

Argued for Mrs Murray—Though charged with the interests of the pursuers by the deceased, Mrs Murray had been superseded by the curator ad litem, who was the real dominus litis and controlled the action. There was no case in which a party had been held liable in expenses as dominus litis unless he not only inspired the action but also controlled it and had a personal interest in it— Kerr v. Employers' Liability Assurance Corporation, cit. sup.

Counsel for the curator ad litem stated that he had no objection to decree being pronounced against Mrs Murray for his expenses.

At advising—