Scottish Court of Session Decisions

The Lord President intimated that they would dispose of the second point after consultation with the Judges of the Second Division.

Lord President—In this case a boy of the name of James Geddes was injured in Glasgow by a lorry, and an action was raised in the Sheriff Court by his father as his tutor and administrator-in-law—the boy being a pupil—concluding for £500 damages. The case was appealed to the Court of Session for trial by jury, and was tried before Lord M'Laren and a jury, with the result that the jury assessed the damages at £25. The motion before the Court now is to apply the verdict and to find the defender entitled to expenses. As to that there is no difficulty, but the question which arises is upon the motion of the defenders to have the expenses modified. We had cited to us the case of Gorman v. Hughes, 1907 S.C. 405, where certain remarks were made in this Division about the rules which would guide the Court in modifying the expenses when it was clear upon the evidence that the action was not appropriate for jury trial. I am bound to say in regard to these remarks that while there is nothing to take back from them, they have been necessarily displaced by the Act of Sederunt, dated 20th March 1907, which was not in force at the time when Gorman v. Hughes was decided. In section 8 the Act of Sederunt deals directly with this matter, and this particular Act of Sederunt has by Act of Parliament the force of an Act of Parliament. So here I think the only question for determination—the verdict being for less than £50—is whether the judge shall certify that the pursuer is entitled to recover any larger proportion of his expenses than one-half. Lord M'Laren informs us that he does not see his way to grant such a certificate. That ends the matter for me, and our finding will be accordingly. I think it right, however, for the guidance of the profession to say that the certificate in such cases ought to be applied for either at the trial or within a short time, not exceeding eight days thereafter, as is done in the case of an application for a certificate for the expenses of skilled witnesses. That enables the question to be gone into while the matter is fresh. We should not, of course, have visited the delay upon the parties in this case, but we wish to have it known that this is the rule which will be followed in the future.

Lord M'Laren—I concur in the interlocutor proposed by your Lordship finding the pursuer entitled only to expenses modified to one-half the amount. In this case I had really no difficulty in refusing to grant a certificate for expenses, because I found that in a note written for my own guidance in charging the jury I had said that it was very unfortunate that the case had been brought into the Court of Session, and that the pursuer ought to have known that he could not recover any sum exceeding the £50 minimum limit laid down by the Act of Sederunt of 1907. While in this case no difficulty has been occasioned I agree that the proper time for applying for a certificate is at the close of the trial or within a few days thereafter, for there might be cases when the circumstances were not so clear, and in which the judge could deal more satisfactorily with the application while the facts were fresh in his mind than after such an interval as the spring vacation.

Lord Kinnear—I agree with your Lordship as to the disposal of the present application. I also agree as to the general rule that a judge who is asked to grant a certificate should be asked to do so as a rule immediately after the trial.

Thereafter on 10th June 1908 the case was by order put out in the Single Bills.

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