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Cite as: [1907] SLR 44_364, [1907] ScotLR 44_364

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SCOTTISH_SLR_Court_of_Session

Page: 364↓

Court of Session Inner House First Division.

(Single Bills.)

Tuesday, January 22. 1907.

44 SLR 364

Lochgelly Iron and Coal Company, Limited

v.

Sinclair.

( Ante, 1907, S.C. 3, 44 S.L.R. 2.)

Subject_1Expenses
Subject_2Decree in Name of Agent-Disburser
Subject_3Compensation
Subject_4Expenses of an Action for Reparation and of an Application for Order to State a Case under Workmen's Compensation Act Arising out of Same Accident—Pars Ejusdem Negotii.
Facts:

In an action of damages at common law at the instance of a workman against his employers, the defenders were, on 8th July 1905, assoilzied with expenses, on the ground that the workman had already agreed to accept compensation
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under the Workmen's Compensation Act 1897. The Sheriff-Substitute having granted on 18th May 1906 a special warrant to record a memorandum of the agreement, the employers, who maintained that the period of its duration had expired, applied for an order on the Sheriff-Substitute to state a case for appeal. The Court refused the application and found the workman entitled to expenses.

Held that the decree for the expenses awarded to the workman in the application under the Workmen's Compensation Act could not go out in name of the agent-disburser, as that would prevent the employers setting off against such expenses the expenses awarded them in the common law action.

Headnote:

This case is reported ante, ut supra.

The Lochgelly Iron and Coal Company, Limited, applied to the Court for an Order on the Sheriff-Substitute ( Shennan) at Dunfermline to state a case under the Workmen's Compensation Act, the question sought to be brought up being whether the Sheriff had rightly, on 18th May 1906, granted special warrant for the registration of an agreement to pay compensation which the appellants said was not genuine, its duration having expired.

On October 23, 1906, the Court refused the application with expenses ( v. sup., p. 2). The case now appeared in the Single Bills on the Auditor's report.

Decree in name of the agent-disburser for the taxed amount of expenses was moved for.

Counsel for the Company objected to decree going out in name of the agent-disburser. He stated that they held, dated 8th July 1905, a decree for expenses against the respondent in a common law action for reparation, based upon the same accident as the compensation, in which he had been unsuccessful owing to his having already agreed to accept compensation under the Workmen's Compensation Act. If the motion now made were granted the appellants would lose their right of set-off. Decree in name of the agent-disburser was a privilege originally granted in the case of poor litigants out of favour to them. This privilege would not be allowed where, as here, the result would be to defeat the opposite party's right of set-off. Compensation was no doubt originally limited to cases where the decrees for expenses sought to be set off had been given simultaneously, but the right had been subsequently extended to awards of expenses which, though not pronounced together, nor yet in the same action, were made in cognate actions. The two actions here were cognate in their subject-matter and might have been conjoined — Gordon v. Davidson, June 13, 1865, 3 Macph. 938; Portobello Pier Co. v. Clift, March 16, 1877, 4 R. 685, 14 S.L.R. 435; Paolo v. Parias, July 3, 1897, 24 R. 1030, 34 S L.R. 780; Oliver v. Wilkie, December 12, 1901, 4 F. 362, 39 S.L.R. 251; Workmen's Compensation Act 1897 (60 and 61 Vict. c. 37), sec. 1, sub-sec. (4).

Argued for respondent—He had been brought here as respondent and had been successful; having been awarded expenses, his agent was entitled to decree in his own name—Begg on Law Agents, pp. 190–192. The two actions were separate and distinct in their nature. The ground of the common law action was fault and that of the compensation the statutory obligation.

Judgment:

Lord President—The point now before us arises on the Auditor's report in a note for the Lochgelly Iron and Coal Company for an order to state a case under the Workmen's Compensation Act 1897, in which the determination of the Sheriff has been affirmed and the respondent found entitled to compensation, and consequently to the expenses in this Court. His counsel, upon the approval of the Auditor's report, moved that decree should be allowed to go out in name of the agent-disburser, and of course if there were no peculiar circumstances that motion would be granted. But counsel for the appellant resists the motion upon the ground that this procedure was not the only procedure in connection with this accident. The present respondent first denied that any agreement had been come to between the parties as to compensation, and raised an action in the Court of Session at common law for recovery of a much larger sum of damages. In that action defences were lodged in which it was pleaded that as he had agreed to take compensation under the Workmen's Compensation Act he had debarred himself from proceeding at common law. That defence was given effect to by the Lord Ordinary in the Outer House, and accordingly the present appellant was assoilzied from the conclusions of that action, and was found entitled to expenses against this respondent. Accordingly the present appellant naturally enough objects to decree in this process going out in name of the agent-disburser, because if it does so it will prevent him obtaining the expenses to which he has been found entitled.

I have come to the conclusion that the point made by the appellant in this case is a good one. The privilege of obtaining decree in the name of the agent disburser is truly based upon this, that it was by the agent's exertions that the fund in question, so to speak, has been brought into practical existence, and that it would be hard upon the agent, who had necessarily incurred expense in order to do so, if that fund were carried away in reference to old debts having to do with other transactions which existed between the parties. But when the matter is truly pars ejusdem negotii the other doctrine prevails. I need not go through the authorities; they were stated to us in course of the discussion. It is quite clear that where there are cross expenses in the same action no question arises, and it is a very easy amplification of that doctrine to hold that where the two sets of expenses arise out of the same matter compensation ought also to apply. It is quite true, as I think

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was said by one of the learned Judges in deciding a case, that where a decree for expenses has become a sort of historic fact, then the same rule will not apply. But in the case before us, which though novel in the facts is not novel in the principle to be applied, I do not think any such expression could be fairly said to apply. The whole expense of the litigation arose out of the same accident. The present respondent was quite wrong in the proceedings he first took, and I think it would be a matter of great hardship and injustice for the present appellant if the respondent, having been wrong in his first action and right in his second, could escape all liability for expenses by the device of getting decree in name of his agent. After all the agent's claim is never more in its essence than a rider on his client's claim; and although in the circumstances I have explained decree in his name is allowed in order to remunerate him for his trouble in almost, so to speak, creating the fund in question, I do not think that would be a safe course where, as here, the whole expenses on both sides really arise out of what is one and the same transaction.

I am therefore for refusing to allow decree to go out in name of the agent-disburser. It will go out in name of the client in ordinary form.

Lord Kinnear—I am of the same opinion.

Lord Pearson—I concur.

Lord M'Laren was absent.

The Court, refusing the motion that the decree should go out in name of the agent-disburser, gave decree in ordinary form.

Counsel:

Counsel for Appellants— Horne. Agents — W. & J. Burness, W.S.

Counsel for Respondent— A. M. Anderson. Agents— Clark & Macdonald, W.S.
1907