Scottish Court of Session Decisions

On 28th April 1902 the Right Honourable Frederick Henry Earl of Lauderdale brought an action against Henry Scrymgeour Wedderburn Esquire of Wedderburn, and another, for declarator that he was entitled to the office of Hereditary Standard Bearer of Scotland. Mr Wedderburn lodged defences, in which he pleaded, inter alia, (1) the action is incompetent, (2) res judicata, and (3) no jurisdiction.

On 13th December 1902 Lord Kyllachy (Ordinary), after a hearing in the Procedure Roll, repelled the first, second, and third pleas-in-law for the defender, and appointed the cause to be put to the roll for further procedure. Thereafter, on 4th December 1903, his Lordship granted decree in terms of the conclusions of the action. The defender reclaimed to the First Division, who on 18th July 1908 granted decree in the pursuer's favour, and found him entitled to expenses. Mr Wedderburn appealed to the House of Lords, who on 7th April 1910 reversed the interlocutors of 13th December 1902 and 18th July 1908 so far as complained of, and found the appellant entitled to costs both in the House of Lords and in the Court below. A petition to apply the judgment was presented by Mr Wedderburn on 4th June 1910, and on 7th June 1910 their Lordships applied the judgment, found “the pursuer liable to the defender in the expenses incurred by him in this Court,” and remitted the account thereof to the Auditor to tax and to report.

In taxing the petitioner's account the Auditor disallowed, inter alia, the expenses connected with the defender's pleas of incompetency, res judicata, and no jurisdiction, which formed the subject of discussion at the first Procedure Roll debate, and in which the defender had been unsuccessful, amounting in all to £34 odd. To this disallowance the petitioner objected.

Argued for petitioner—The finding of the House of Lords as to costs was equivalent to a general finding of expenses in his (the petitioner's) favour, and that being so the petitioner was entitled to his whole expenses in fighting the case, even though in the course of doing so he had unsuccess fully stated certain pleas.

Argued for respondent—The Auditor was right. The petitioner had been unsuccessful

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in his preliminary pleas, and therefore in a separate branch of the case in the sense of Article V. of the General Regulations as to the taxation of judicial accounts. That being so, the expenses connected therewith had been rightly disallowed. He cited Alston & Orr v. Allan, 1910, S.C. 304, 47 S.L.R. 255.