Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0431.html
Cite as: [1911] SLR 431, [1911] ScotLR 431

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SCOTTISH_SLR_Court_of_Session

Page: 431↓

Court of Session Inner House Second Division.

(Single Bills.)

Tuesday, February 7. 1911.

48 SLR 431

Mackendrick

v.

National Union of Dock Labourers of Great Britain and Ireland.

(Reported ante, November 1, 1910, at p. 17.)

Subject_1Expenses
Subject_2Appeal to House of Lords
Subject_3Withdrawal of Appeal
Subject_4Respondent's Additional Expenses Prior to Withdrawal.
Facts:

Where a cause had been disposed of on a reclaiming note and the pursuer found entitled to expenses, held that the Court had no power to award additional expenses incurred by the pursuer in consequence of an appeal to the House of Lords having been taken by the unsuccessful defenders and afterwards withdrawn.

Headnote:

The case is reported ante ut supra.

Alexander Brownlie Mackenarick, writer, Glasgow, sued the National Union of Dock Labourers in Great Britain and Ireland for £425, 5s.1d., being the amount of certain accounts for professional work.

On 1st November 1910 the Second Division found, inter alia, that the defenders were liable in payment of the accounts sued for in so far as the same were properly charged, remitted the same to the Auditor of Court to tax and report, and found the pursuer entitled to expenses, both in the Outer and Inner House, so far as not already disposed of by a previous interlocutor.

On 12th November 1910 the defenders presented a petition for leave to appeal to the House of Lords, and on 15th November leave to appeal was granted as craved.

On 20th January 1911 defenders' agents
Page: 432↓
intimated to pursuer's agents that their clients were not to proceed with the appeal.

Thereafter the pursuer presented a note to the Lord Justice-Clerk, in which he stated, inter alia, that after leave to appeal to the House of Lords had been granted, defenders' agents requested to know the names of the London solicitors who were to act for the pursuer in the appeal, in order that they might advise their London solicitors accordingly; that pursuer's agents thereupon instructed London solicitors to act for him, and advised the defenders' agents thereof; that various meetings and some correspondence took place between the London solicitors of the defenders and the London and Edinburgh solicitors of the pursuer, and that in consequence thereof pursuer had incurred legal expenses to his Edinburgh and London solicitors which could not be recovered in his account of expenses in the action at his instance against the defenders. The pursuer therefore craved the Court, “in respect of such leave to appeal to the House of Lords having been granted to [the defenders], and they having intimated that they are not to proceed with an appeal, and in consequence [the pursuer] having been put to legal expenses, to allow him to make up an account thereof, and to remit the same to the Auditor to tax and report. …”

On the note appearing in Single Bills, counsel for the pursuer moved that the prayer be granted.

There was no appearance for the defenders.

Judgment:

Lord Justice-Clerk — I do not think that this note should receive effect. The condition of matters is this. The case before us has been finally disposed of by a judgment which took it entirely out of our hands. The only thing that remains to be done is to decern for expenses, and a petition for leave to appeal to the House of Lords having been granted, there can be no further proceedings in this Court. That being so, and the appeal having been dropped, we are now asked to give a decerniture allowing or modifying expenses incurred by the petitioner in connection with the appeal. I think that is out of the question, and I am clear that we have no power to do any such thing.

I may add that it is very doubtful, indeed, even if the case had proceeded, whether these expenses would have been included in the costs as they might be granted by the House of Lords.

Lord Ardwall—I entirely concur. We have asked for authority, but counsel has frankly stated that there is no authority for the prayer of this note, and, apart from authority, it appears to me that the prayer asks us to do something which it is incompetent for us to do, viz., to deal with the expenses of an appeal to the House of Lords after we have exhausted the case so far as this Court is concerned. If the appeal had gone on these expenses would have formed part of the expenses to be dealt with by the House of Lords when the case came before them, and the fact that the appeal has not been proceeded with does not give this Court any right to deal with them.

Lord Mackenzie—I concur.

Lord Dundas was absent and Lord Salvesen was sitting in the Lands Valuation Appeal Court.

The Court refused the prayer of the note.

Counsel:

Counsel for the Pursuer— Macdonald. Agents— Paterson & Salmon, Solicitors.
1911