Scottish Court of Session Decisions

Lord President—The facts here are that this is a petition by a lady for the custody of certain children, in which she makes some very strong averments against the character of the respondent. At first the respondent resisted the crave of the petition, but afterwards he lodged a minute consenting to the prayer being granted, and the sole question now before us is whether the expenses of the petitioner should be given her as ordinary expenses or as expenses as between party and agent. The only other fact in ths case that it is necessary to mention is that the respondent is a man of ample means, and that the petitioner, though not possessed of such ample means as the respondent, yet is the possessor of a separate estate.

I have looked into the authorities, and it appears to me that the only ground in this class of case for awarding expenses as between party and agent instead of in the ordinary way, is for the purpose of avoiding circuity, and by circuity I mean that a wife, having recovered expenses awarded to her in the ordinary way, should thereafter claim and receive from her husband, as a debt due to her, the difference between the expenses awarded to her as between party and party and the expenses incurred by her as between party and agent. To avoid this circuity the Court will give expenses as between party and agent. The test in all such cases therefore is this—were the expenses “necessary” expenses of the wife.

Now, it has been settled that expenses incurred by a wife in a petition for custody of children are not “necessary” expenses (Fraser, Husband and Wife, i. 646), so I think that the only expenses to which the petitioner is entitled here are expenses taxed on the ordinary scale.

Lord M'Laren—I agree. The only class of cases where a wife gets expenses as between agent and client, instead of on the more moderate scale, are such as were originally consistorial causes. Now an application for custody of children is not a consistorial cause, but is an appeal to the nobile officium of the Court, and the proof of this is that the case does not originate in the Outer House, as consistorial causes do, but in the Inner House. This then is not a case to which either the principle or the practice of awarding expenses in consistorial causes can be applied.

Lord Kinnear—I am of the same opinion, and agree with your Lordship's exposition of the principles on which expenses as between agent and client are generally allowed in consistorial cases. The case cited by Lord Fraser— M'Alister v. Her Husband (1762), M. 4036; Fraser, Husband and Wife, vol. i, 614— as the foundation of the whole practice was that of an action brought, not by the wife, but by the wife's law-agent to recover the difference between the expenses which he had already recovered as taxed between party and party, and the balance of expenses as between agent and client still due by the wife. It was held that expenses incurred by the wife in defending her honour or safety were necessaries for which the husband was bound to provide, and so the claim of the law'-agent was sustained, and as your Lordship has pointed out the Court has thought it expedient in such cases to avoid this circuitous method by giving decree for expenses as between' party and agent in the first instance. But it has never been held that petitions for the custody of children are necessaries for which the husband is bound to pay, and Lord Fraser points out that the contrary has been decided in Ireland. I do not see, therefore, that the rule hitherto followed in consistorial cases is applicable to the present. Whether the principle on which the rule was originally based, namely, that since a wife has no means her justifiable expends must be paid by her husband should be applicable to the case of a wife having a considerable separate estate is a different question which it is not necessary to decide.

Lord Pearson—I concur.