Scottish Court of Session Decisions

Lord President—This is an action of damages by the Clippens Oil Company against the Edinburgh and District Water Trustees in respect of a wrongous interdict obtained against the company. The matter was the subject of a proof, and the Lord Ordinary decerned against the defenders for £15,000. A reclaiming-note has been lodged against this interlocutor, but before the case comes on for discussion the reclaimers ask leave to amend their record by adding a plea founded on the Public Authorities Protection Act 1893. The effect of such a plea, if sustained, is to render the action incompetent, and the respondents in this case, while admitting that the amendment is competent, ask for the payment of full expenses up to date as a condition of its being received. A considerable number of authorities were quoted to us by Mr Clyde, who contended that in no case where the result of a new plea if successful would be to put an end to the action had the amendment been allowed without the payment of the whole expenses up to date. I think Mr Clyde's statement on the authorities is correct. But a generalisation may be true of all cases up to date and yet not found a proposition universally applicable to all cases, and in looking into the matter I have come to the conclusion that it does not apply here. I think this observation may be made, that if the Legislature had intended that these late amendments should be allowed only on condition of the payment of all expenses up to date, it would have said so. But the matter is left entirely to the discretion of the Court. There are amendments and amendments. Some are only amendments to the effect of bringing to a clearer issue points already pleaded on record, others cut deep into the substance of the action. Each one must be dealt with as it arises. The cases quoted were nearly all cases in which the amendment was made by the pursuer introducing a new ground of action sweeping away the complexion of facts on the old record. Apart from authority, I should hold that the judgments in these cases was right. The case of Keith v. Outram & Company, Limited, 4 R. 958, is nearest to the present case. This was an amendment by the defenders, and consisted in adding an averment and plea of veritas after an issue had been adjusted and notice of trial given in an action of damages for slander. Lord President Inglis in imposing as a condition of allowing the amendment the payment of all expenses since the closing of the record said—“All that the pursuer has since done may be thrown away. This rule is not confined to this defence, but applies to all defences which put it upon the pursuer to consider whether or not he will go on with his action. When we allow such an amendment the payment of all expenses incurred since the defence ought to have been stated must be imposed on the defender.” These words carry Mr Clyde all the way he wishes, but the Lord President, with great prescience, adds—“At the same time, the particular circumstances of any case will always fall to be taken into consideration.” So it is clear that the Lord President is laying down a general and not a universal rule. The general principle is well stated by Lord Adam in the case of Murdison, 23 R. 449—“The true principle is that the expenses caused by amendments should be put upon the party desiring to make these amendments.” In some cases it is easy to apply this principle, in some not. If the amendment is allowed and is successful, then I concede Mr Clyde is entitled to the whole expenses, because, if the plea had been timeously stated the proof which has been led would have been unnecessary. So we are deciding nothing which will prevent the pursuers getting expenses if the plea is successful. If the plea is unsuccessful, then the case must be decided on the merits, and, in the event of our deciding to reverse the judgment of the Lord Ordinary, then, if we had at this stage allowed all expenses against the reclaimers, we should be allowing expenses in modum pœnœ and not merely with a view to seeing that the person against whom the amendment is made should not have been put to unnecessary expense. I am therefore of opinion that the amendment should be allowed and the question of expenses reserved.

Lord Adam—I have also read all the cases quoted by Mr Clyde. I cannot find anything in them to the effect that where a plea is proposed to be added to the record which goes to exclude the action, it can only be allowed on condition of payment of the whole expenses irrespective of the circumstances of the particular case. There is nothing in the cases to fetter the discretion of the Court in dealing with each case on its own merits. Accordingly in the special circumstances of the present case I concur in the judgment your Lordship has expressed.

Lord Kinnear—I agree. The most general rule in these cases—and they form a consistent and harmonious series of decisions—is the rule laid down by the Lord President in the case of Keith v. Outram & Company, 4 R. 958, that where a plea of this kind is brought forward by a defender at a late stage of the process it is the duty of the Court in allowing it to place the pursuer in the same position with regard to expenses as if the plea had been stated at the proper time. In many cases the practical application of this rule will be, as it was in the case of Keith, to allow the amendment only on condition of the payment of all expenses except the expense of actually bringing the action into Court. This proceeds on the view that the expense incurred previous to the amendment must be thrown away if the plea is a good one, since the action must have been thrown out if it had not been abandoned without further proceedings. This creates the one difficulty in the application of the rule to particular cases, which is that we must

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