Scottish Court of Session Decisions

On 14th April 1903 William Sommerville & Son, Limited, brought an action of declarator and interdict against the Edinburgh and District Water Trustees. The action proceeded in the first instance before Lord Low, who after proof on 13th July 1904 pronounced the following interlocutor—“The Lord Ordinary having considered the whole cause, assoilzies the defenders from the conclusions of the summons and decerns: Finds the defenders entitled to expenses: Allows an account thereof to be given in, and remits the same, when lodged, to the Auditor to tax and report.” The pursuers reclaimed, and on 10th March 1905 this interlocutor was pronounced by their Lordships of the Second Division The Lords having heard counsel for the parties on the reclaiming note for the pursuers against the interlocutor of Lord Low, dated 13th July 1904, Recal the said interlocutor reclaimed against: Find the defenders liable to the pursuers in damages, and assess the same at the sum of two thousand pounds (£2000) sterling, for which decern: Find the defenders liable in expenses, and remit the same to the Auditor to tax and to report.”

Against this judgment the defenders appealed to the House of Lords, who sustained

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the appeal, pronouncing upon 23rd July 1906 the following judgment—“… It is ordered and adjudged by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled that the said interlocutor of the Lords of Session in Scotland, of the Second Division, of the 10th day of March 1905, complained of in the said appeal, be and the same is hereby reversed, and that the interlocutor of the Lord Ordinary there, of the 13th day of July 1904, thereby recalled, be and the same is hereby restored: And it is further ordered that the respondents do pay or cause to be paid to the said appellants the costs of the action in the Court of Session, and also the costs incurred by them in respect of the said appeal to this House, the amount of such last-mentioned costs to be certified by the Clerk of the Parliaments: And it is further ordered that the said cause be and the same is hereby remitted back to the Court of Session in Scotland to do therein as shall be just and consistent with this judgment.”

Neither in the Outer House, nor in the Second Division, nor in the House of Lords was any reference made to the Public Authorities Protection Act 1893, or any request made by the successful parties that expenses should be taxed as between agent and client. Before, however, the judgment of the House of Lords was actually issued, the parties' agents appeared before the Appeal Committee, and the defenders moved that their account of expenses should be taxed as between agent and client under sec. 1 ( b) of the Public Authorities Protection Act 1893. The Appeal Committee indicated their opinion that the appropriate time to make the motion was when the case came before the Court of Session on a petition to apply the judgment of the House of Lords.

Accordingly in December 1906, the Edinburgh and District Water Trustees presented a petition, the prayer of which was in the following terms—“May it therefore please your Lordships to apply the above judgment of the House of Lords, and to assoilzie the defenders from the conclusions of the summons and to decern; and further, to find the pursuers liable to the defenders in the expenses incurred by them in the Court of Session, including the expenses of this application; to allow an account thereof to be lodged, and to remit the same to the Auditor of Court to tax and to report, to direct the Auditor of Court to tax the said account of expenses in accordance with the provisions of the Public Authorities Protection Act 1893, sec. 1 ( b), and to decern for the taxed amount of said account; or to do further or otherwise in the premises as to your Lordships may seem just.”

Counsel for the petitioner appeared and restricted the prayer to the expenses of the Outer House, arguing—They had obtained a “judgment” in their favour, and were thus ipso facto and automatically entitled to expenses as between agent and client, the provision in the Act being peremptory— Christie v. Corporation of City of Glasgow and Others, May 31, 1899, 36 S.L.R. 694; M'Fadzean v. Corporation of Glasgow, January 30, 1903, 40 S.L.R. 339. Accordingly, even on the view that the ‘judgment” which they had was the “judgment” of the Lord Ordinary and not of the House of Lords, there was no force in the objection that the motion was too late, for no motion at all was required. But as a matter of fact their judgment was the “judgment” of the House of Lords, and their motion had been made at the earliest opportunity. Their opponent's argument postulated the necessity of special averments and a special plea as to expenses, which would be a complete innovation.

Argued for the pursuers—The motion was too late. The Act did not in any way affect the ordinary rules and practice of the Court governing expenses— Bostock v. Ramsey Urban District Council, [1900] 2 QB 616. It accordingly did not derogate from the well-established rule that all questions as to expenses must be raised at the time of judgment, not subsequently— Aird and Others v. Tarbert School Board and Others, November 1, 1906, 44 S.L.R. 26; Magistrates of Arbroath v. Dickson, March 19, 1872, 10 Macph. 630, 9 S.L.R. 389—nor did it debar the Court from refusing, in its discretion, to allow any expenses— Bostock, supra. The “judgment” in this instance was the judgment of the Lord Ordinary, and it was now impossible to say what his decision would have been, or how he would have dealt with expenses had the question been brought before him. The pursuers might have argued, and the Lord Ordinary might have held, that the defenders were not a body of persons entitled to the privileges conferred by the Act. The matter was settled by the Magistrates of Aberchirder v. Banff District Committee, March 3, 1906, 8 R. 571, 43 S.L.R. 409, which was exactly in point. The following cases were also referred to by parties during the debate— Young v. North British Railway Co., March 8, 1888, 15 R. (H.L.) 32; Whitehead & Morton v. Cullen, January 11, 1861, 23 D. 265; Fielden v. Morley Corporation, [1900] A C 133: Jeremiah Ambler & Sons, Limited v. Bradford Corporation, [1902] 2 Ch 585; and Macqueen's Appellate Jurisdiction, p. 33.