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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hughes v. Allens [1909] ScotLR 813 (17 June 1909)
URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0813.html
Cite as: [1909] SLR 813, [1909] ScotLR 813
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SCOTTISH_SLR_Court_of_Session
Page: 813↓
Court of Session Inner House Second Division.
v.
Facts:
The Act of Sederunt of 20th March 1907, enacts—section 8—“Where the pursuer in any action of damages in the Court of Session, not being an action for defamation or for libel, or an action which is competent only in the Court of Session, recovers by the verdict of a jury £5, or any sum above £5 but less than £50, he shall not be
Page: 814↓
entitled to charge more than one-half of the taxed amount of his expenses, unless the Judge before whom the verdict is obtained shall certify that he shall be entitled to recover any larger proportion of his expenses, not exceeding two-third parts thereof.” A brought an action of damages for assault against B and C, concluding against B for £150, and against C for £75, and against them jointly and severally, or severally, for expenses. The averment was that on one occasion B, and on another B and C acting together, had assaulted the pursuer. B and C made one defence. The case having been tried before a jury, the jury awarded £40 of damages against B and £20 against C.
Held that, there having been one action with one defence, in which £60 had been recovered, the Act of Sederunt did not apply, and the pursuer was entitled to recover her full expenses.
Mary Hughes, domestic servant, residing at the Manse, Fossoway, brought an action of damages for assault against William Allen, M.D., Glasgow, and against his brother James B. Allen, also resident in Glasgow. She averred that she had been assaulted on 31st August 1908 by Dr William Allen, and that later on the same day she had been assaulted by Dr Allen and his brother James B. Allen. She concluded against William Allen for £150 and against James B. Allen for £75. She also concluded against the two defenders jointly and severally, or severally, for expenses. On 13th March 1909 the case was tried before Lord Ardwall and a jury. The jury returned a verdict for the pursuer against both defenders, and assessed the damages against William Allen at £40, and against James B. Allen at £20. The defenders thereafter applied for a new trial, but this application was refused. The pursuer thereupon moved for full expenses, but the defenders objected thereto, and maintained that section 8 of the Act of Sederunt of 20th March 1907 applied.
Argued for the pursuer—The test put by the Court in section 8 of the Act of Sederunt in order to qualify for an award of full expenses was the amount recovered. In this case the pursuer was not in the position of having recovered less than £50. She had brought only one action and had had compensation awarded to her to the extent of £60. Here there was only one set of expenses on the part of the defenders. Said section 8 tried to regulate the type of case that was to come into the Court of Session, and was not applicable here.
Argued for defenders—Section 8 of the said Act of Sederunt applied to this case. As the pursuer had not recovered £50 from either defender she was not entitled to more than half her taxed expenses, or in any event to two-thirds thereof, if the presiding Judge should grant a certificate to that effect. Here there was no joint and several conclusion. There were separate conclusions against the defenders, and there were separate issues. The defender James B. Allen had nothing to do with the first assault. It was only by putting the two separate conclusions into one action that the pursuer was able to bring this action into the Court of Session. The jury had considered that her claim against William Allen amounted to £40, and against James B. Allen to £20. On their estimate of the action it should not have been brought in the Court of Session, as the Sheriff Court had privative jurisdiction in causes under £50 value—Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 7.
On 5th June 1909 the Court pronounced an interlocutor applying the verdict and reserving meantime the question of expenses.
At advising (on the question of expenses)—
The provisions of the section are as follows:—“… ( quotes v. sup. in rubric)…”
The question arises thus:—The pursuer—brought an action in which in one summons she concluded for decree against William Allen for £150, and against James Allen for £75. The jury in their verdict awarded £40 against the former and £20 against the latter. The contention of the defenders' counsel was that the Act of Sederunt applied, inasmuch as the pursuer had not got £50 from each defender. The question is a novel one, and we thought it right to consult the Judges of the First Division before giving our decision. The conclusion at which we have arrived is that this is not a case to which the Act of Sederunt applies. The pursuer brought one action only, and there was only one defence. In that action she recovered £60, and I do not therefore think that it can fairly be said that she has recovered less than £50 within the meaning of the section. I accordingly propose to allow the pursuer her full expenses.
The Court pronounced this interlocutor—“The Lords having heard counsel and considered the question of expenses reserved by the preceding interlocutor, find the pursuer entitled to full expenses.”
Counsel for Pursuer— Constable, K.C.— Pringle. Agents— Constable & Sym, W.S.
Counsel for Defenders— Morison, K.C.— Macmillan. Agents— Webster, Will, & Company, S.S.C.