Scottish Court of Session Decisions

Lord President — In this case Lord Salvesen on 22nd April 1910 pronounced an interlocutor assoilzieing the defenders and finding them entitled to expenses, reserving as to modification if any, and, the expenses having been taxed, Lord Dewar on 19th July approved of the Auditor's report and decerned against the pursuer for the amount of the taxed expenses. The pursuer has presented a reclaiming note against Lord Dewar's interlocutor, and the question which has been raised is whether that reclaiming note is competent.

In the argument at the bar it was urged that the cases of Crellin's Trustee v. Muiread's Judicial Factor, October, 21, 1893, 21 R. 21, 31 S.L.R. 8; and Earl of Kintore v. Pirie & Sons, Limited, October 21. 1904, 42 S.L.R. 5, were not reconcilable; but when these cases are closely examined I do not think that they will be found to be at all inconsistent. The rules as to reclaiming may not be strictly logical, but for practical purposes there is no doubt as to how the matter stands.

These rules can be stated very shortly. The first is that although in one sense there cannot be more than one final interlocutor in a case, yet in another sense there may be, because there may be an interlocutor which is not final according to the strict meaning of that term but yet is final in the sense of the statutory definition for the purpose of allowing it to be reclaimed against within twenty-one days without leave. This was the position in the Kintore case, and this was all that was decided there. The interlocutor in that case disposed of the merits of the cause but left over the matter of expenses for the purpose of modification. Now if anyone were asked whether, without reference to any statute, that was a final interlocutor, the answer would be “No,” for something was still to be done—the expenses had to be dealt with. But then, according to section 53 of the 1868 Act, it was final, because that section provides that it shall not prevent a cause from being held as wholly decided that expenses have not been taxed, modified, or decerned for. Now the interlocutor in the Kintore case satisfied this definition, and accordingly the reclaiming note was held to be competent. That is the explanation of the case.

The next rule is that according to section 52 of the 1868 Act every reclaiming note has the effect of submitting to review the whole of the prior interlocutors in the case.

The third and last rule is one which does not depend on the precise provisions of any statute; and it is this, that where at the end of a case there is an interlocutor which is merely executorial, and does not represent the determination of any contention between the parties, that interlocutor cannot be reclaimed against. This rule is based on a series of decisions, of which Stirling Maxwell's Trustees v. Kirkintilloch Police Commissioners (October 16, 1883, 11 R. 1) is one. The typical example of a case falling under this rule is that in which one party has succeeded in the cause and has been found entitled to expenses and a remit is made to the Auditor, and then when the case comes back from the Auditor the Lord Ordinary pronounces an interlocutor approving of the Auditor's report and decerning for the taxed amount of the expenses. This last interlocutor cannot be reclaimed against, and the reason for this is just to prevent the statutory rule that a reclaiming note from an interlocutor brings up for review all the previous interlocutors in the case coming into operation, because if an executorial interlocutor could be reclaimed against, the result, under the rule, would be that the whole matter would be brought

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