Scottish Court of Session Decisions

Lord President—The motion before the Court is to modify the expenses upon the ground that the sum which was recovered was £35, and, that being so, the pursuer ought not to have the full expenses of the jury trial. Such cases as this appear to have been dealt with in various ways. I do not think it expedient to lay down any rule that can be rigidly applied to them all, and I should not be disposed to do anything which might cast doubt on the power of the Court to deal with expenses according to its discretion in each particular case. But on the general question of procedure it seems to me that the Court ought to be guided by Act of Parliament; and where Parliament has dealt with the matter it is not for us to do something which is tantamount to altering the law. It would not be impossible to reconcile the decisions in the various cases which have been cited to us, although it might not be possible to reconcile some of the opinions which have been expressed in these cases. But judging, as I propose to do, each case by itself, it seems that here we are dealing with a case which in its nature was quite appropriate for jury trial. The pursuer having according to his statutory right asked for a jury trial I think we should give expenses in the ordinary way.

Lord Adam concurred.

Lord M'Laren—In this particular case I do not think that the circumstances are strong for the modification of expenses. I understand your Lordships wish to consider the question on general grounds, and with regard to the difference in practice between this and the Second Division of the Court I feel bound to say that in my opinion the Second Division are entirely within their powers in laying down the rule with respect to the numerous cases under the Employers' Liability Act, which are of small value and really not suitable for jury trial, that they should be kept within bounds by the application of the power of the Court to modify expenses. The Court has at common law complete control over expenses, and has established two scales of taxation in the Sheriff Court by Act of Sederunt. Without the formality of an Act of Sederunt I see no difficulty in treating questions of taxation in our own Court according to a definite rule provided we apply the rule consistently. We do not claim to exercise an arbitrary discretion in the matter of expenses more than in any other matter.

I am the more inclined to think that the practice of the Second Division should be followed, since the Employers' Liability Act gives a strong indication of how appeals of small value are to be dealt with. That Act by its sixth section provides that any action brought under its provisions may be removed to the Court of Session at the instance of either party in the manner provided by and subject to the conditions prescribed by section 9 of the Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. cap. 50). It was held in the case of Paton v. Niddrie and Benhar Coal Company, 12 R. 538, that this enactment did not by implication exclude the right of appeal under the 40th section of the Judicature Act 1825 as reenacted by the Court of Session Act 1868, section 73. I do not understand how that result was arrived at, for I should have thought that where an Act gives a power of appeal subject to a condition the power could only be exercised subject to that condition. I of course accept the case of Paton. But if it is provided by statute that in a certain class of statutory appeals there is this discretion as to expenses it would be consistent with sound principle that we should have a similar discretion to deal with expenses in cases which do not fall under the statutory power. I make these observations because it is consistent with my experience and that of your Lordships that many accident cases are brought up here from the Sheriff Court which ought never to have left that Court. That is the opinion, I believe, of the legal profession in Glasgow, and also to some extent here. I cannot think it right that the provisions of the Employers' Liability Act as to the conditions of the right of appeal should be reduced to a dead letter by bringing all appeals under the 73rd section of the Court of Session Act 1868 instead of under that Act. I think therefore that something ought to be done by way of modification of expenses towards suppressing this grave abuse.

Lord Kinnear—I agree with all that the Lord President has said, and therefore in expressing my own opinion I need only say that in the circumstances of this case I see no sufficient ground for interfering with the ordinary rule.