Subject_1Expenses Subject_2Jury Trial Subject_3New Trial Subject_4Expense of First Trial — What Included.
Facts:
The expenses of discussing a rule for a new jury trial form part of the expenses of the trial sought to be set aside.
Earl of Fife v. Duff and Others. March 3, 1827,
5 S. 524 (n. ed. 492),
followed.
Headnote:
Thomas Conolly brought an action of damages for personal injury against the North British Railway Company. A jury awarded him £160 of damages. On the motion of the defenders the Second Division allowed a new trial, which resulted again in a verdict for the pursuer and an award of £75 of damages. The defenders again moved for a rule, which was granted, but the Second Division, after the hearing, refused to allow a third trial, and pronounced this interlocutor—“The Lords having heard counsel for the parties on the rule granted by the previous interlocutor, Refuse the said rule, of consent apply the verdict of the jury, and in terms thereof decern against the defenders for payment to the pursuer of the sum of £75 sterling: Find him entitled to expenses, except the expenses of the first trial, and remit the same to the Auditor to tax and report.”
The Auditor allowed the pursuer the expenses incurred by him in connection with discussing the rule which resulted in the first trial being set aside.
The defenders, in a note of objections to the Auditor's report, objected to the allowance of these expenses, and contended that they formed part of the expenses of the first trial—
Earl of Fife v. Duff and Others, March 3, 1827,
5 S. 524.
Judgment:
Lord Justice-Clerk—I think these expenses (except, of course, the expenses which Mr Dickson has given up in connection with precognitions) should not be allowed. These are expenses connected with the first trial, and although the word trial expresses generally the idea of going to a verdict, and getting the verdict of a jury, we all know that a verdict has no weight whatever except in so far as it is applied by the Court, the Court having power if they see fit not to apply it on certain grounds, they having a discretion to judge whether the jury have gone so far wrong in their verdict, either in fact or law, that a new trial ought to be granted on the ground that the verdict was either contrary to evidence or contrary to law. I take that to be part of the proceedings of the first trial, and until that has been done nothing effective has been done in the original trial at all. To say that these expenses, which resulted in the pursuer being compelled to enter upon a new trial, are expenses connected with the new trial, seems to me to be
Page: 312↓
out of the question. They are expenses connected with the trial in which the verdict was bad and had to be set aside, and the party is not allowed the expenses of that trial; and my own opinion, apart from authority, would be that he is not entitled to the expenses incurred when that abortive trial was set aside. But I hold that this view is strongly confirmed by the case quoted to us of the
Earl of Fife v. Duff.
Lord Low—I have great doubts in this case, but I think it seems to have been decided in the
Earl of Fife v. Duff that the expenses of discussing a rule for a new trial are part of the expenses of the trial to which it relates. That being so, I do not think it would be expedient to disturb a decision upon a question of this sort pronounced so long ago. Therefore I agree in the result which your Lordship proposes.
Lord Ardwall—I have no doubt about this matter. I am of opinion that the expenses connected with the setting aside of the verdict in the first trial which have been allowed to the pursuer by the Auditor were really part of the expenses of the first trial. The proceedings in connection with the first trial never came to anything; the verdict was set aside and a new trial was granted. When the Court finds a party entitled or not entitled to certain expenses, that is not necessarily confined to the expenses of the specific piece of procedure mentioned in the finding, but includes expenses properly connected with such piece of procedure. When the Court says a party is to be entitled to the expenses of the first trial, or is not to be entitled to the expenses of the first trial, these expenses consist not merely of the expenses of the proceedings before the Judge at the trial, but of everything properly connected with the first trial, including the expenses of the discussion in this Court in obtaining a new trial. That view is entirely in consonance with what was decided in the case of the
Earl of Fife,
5 S. 524, which has been quoted to us. That was a very clear case of this point coming up for decision, because there were in that case two jury trials which, in consequence of the judgment of the House of Lords, were held to be absolutely useless, and one of the parties got expenses of these trials but no other expenses. Therefore it is a direct decision as to what falls and what does not fall within the expenses of a particular jury trial. On these grounds I am clearly of opinion that the judgment proposed by your Lordships is the right one.
Lord Stormonth Darling was not present.
The Court sustained the objection.
Counsel:
Counsel for the Pursuer—
Orr, K.C.—
Lippe. Agents—
St Clair Swanson & Manson, W.S.
Counsel for the Defenders (Objectors)—
Scott Dickson, K.C.—
Grierson. Agent—
James Watson, S.S.C.
