Scottish Court of Session Decisions

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61), sec. 1, provides:—“Where, after the commencement of this Act, any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, duty, or authority, the following provisions shall have effect … ( b) Wherever in any such action a judgment is obtained by the defendant, it shall carry costs to be taxed as between solicitor and client.”

On February 20, 1905, Robert Aird, headmaster of Tarbert Public School, residing at Bank Buildings, Tarbert, Lochfyne, and others, raised an action against the School Board of the Parish or District of Tarbert, and its members as individuals, to have it declared that the election of one of them, viz., John Campbell, joiner, Tarbert, was null and void, and for interdict against his acting as a member of the said School Board, and, further, the pursuers sought to have a certain minute of the School Board dated 28th January 1905, dismissing and suspending the said Robert Aird, reduced.

On September 29, 1905, the pursuer Robert Aird died, and on January 23, 1906, the Lord Ordinary ( Ardwall) pronounced an interlocutor sisting his executors-dative qua next-of-kin, Mrs Margaret Aird and John Aird, as pursuers in the cause, as executors and as individuals. They subsequently lodged a minute of abandonment in the following terms:—“Jameson for the pursuers stated that this action had been originally raised by the pursuers in the interests, as they conceived them, of education in Tarbert, and for the purpose of reinstating the late Robert Aird in his position as headmaster of the public school, but that in view of the altered situation caused by Mr Aird's death on 29th September last the pursuers did not think it desirable that the action should proceed to proof solely with the view of determining the question of the expenses of process, and they accordingly, for the reasons stated, consented and hereby consent to the defenders being assoilzied from the conclusions of the summons and respectfully moved the Court to dispose of the question of expenses as shall be just.”

On 6th February 1906 the Lord Ordinary ( Ardwall) pronounced this interlocutor:—“The Lord Ordinary having considered the minute for the pursuers, in respect thereof assoilzies the defenders from the conclusions of the summons, and having heard counsel for the parties and taken into consideration the question of expenses, finds no expenses due to or by either party, and decerns.”

Opinion.—“I am not without judicial knowledge of the merits of this case, having dealt with the inception of the proceedings against the late Mr Aird by the defenders in a suspension and interdict in the Bill Chamber on 27th January 1905. Subsequently to the disposal of that note of suspension and interdict the defenders passed another minute on 28th January 1905, which purported to record the adoption of the motions and minutes which had been held to be inept in the first suspension and interdict. There was further an action of damages for slander at the instance of the defenders in this action against a newspaper regarding the proceedings in which the deceased Mr Aird was interested. The result of it was adverse to the present defenders. Throughout the whole proceedings there were two parties in the School Board. Though the defenders represent the majority I am far from being satisfied that they were in the right. Mr Aird, the principal pursuer, died on 29th September 1905. How far his death was accelerated by the proceedings taken against him by the votes of the defenders I have no means of knowing, but now that he is dead I think that his executors and the remaining pursuers have very wisely consented to absolvitor, as no judgment in this case can do any good to the deceased, and to proceed with the action would involve expense to his estate, which I presume is ill able to bear it. Having regard to the whole circumstances of this case as appearing in the proceedings before this Court, and in the exercise of the discretion which the Court always has in dealing with the question of expenses, I consider it proper in the present case to find no expenses due to or by either party, and I confess I was a little surprised at the persistency with which the public board insisted for these against the representatives of a deceased teacher, who, whatever may have been his faults, had apparently done some good work for the school, as it appears to have been under his headmaster-ship that it had advanced from the position of a merely elementary school to that of a secondary school.”

The defenders reclaimed on the question of expenses, and argued—The Public Authorities Protection Act, section (1) ( b), entitled the defenders to expenses as successful defenders— Christie v. Glasgow Corporation, May 31, 1899, 36 S.L.R. 694, per Lord President (Robertson) at p. 698. Further, the minute lodged by the pursuers was a minute of abandonment, and payment of expenses was a condition of the right to abandon—Judicature Act 1825 (6 Geo. IV, cap. 120), section 10. Moreover, the defenders had been in part successful so far as the case had gone.

Argued for the pursuers and respondents—The application of the Public Authorities Protection Act had not been argued before the Lord Ordinary, and the point could not

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be taken now. That Act, further, merely prescribed a scale and did not deprive the Court of its discretion. The intention was to protect public bodies against extrajudicial expenses. Had the statute aimed at taking away the Court's discretion it would have been more explicit.