Scottish Court of Session Decisions

(Reported on the competency of the appeal November 30, 1910, supra, p. 191, and on the merits December 23, 1910, supra, p. 293.)

The Act of Sederunt regulating the fees of agents and others in the Sheriff Court, dated 10th April 1908, provides, section I — “In the ordinary Sheriff Court, except as after stated, there shall be two scales of taxation, viz., first, for causes where the amount of principal concluded for does not exceed £50, and second, for causes exceeding that amount. In all cases the Sheriff may appoint that expenses shall be subject to modification.” Section II—“(1) The scale of taxation shall in the ordinary case be determined by the principal sum concluded for, but in all cases it shall be competent to the Sheriff to direct that the expenses shall be taxed according to the scale applicable to the amount decerned for. (2) In cases where the principal sum concluded for does not exceed £50, it shall be competent to the Sheriff to direct taxation on the higher scale if he shall be of opinion that such sum does not truly represent the nature and importance of the cause.…”

A. E. Abrahams, Limited, advertising contractors, raised an action in the Sheriff Court at Dumbarton against William Campbell junior, furniture dealer, Dumbarton, for £43, 16s. (subsequently retricted by minute to £39, 18s.) alleged to be due under a contract for advertising.

On 22nd October 1910 the Sheriff ( Lees), after various findings in fact, found in the circumstances as matter of law “that the pursuers are not in titulo to demand implement by the defender of a contract which they have ceased to fulfil, but only reasonable compensation for the amount of advertising display they have obtained for defender's advertisement, and that the sum of £18 would be such reasonable remuneration: Finds the pursuers liable to the defender in his expenses of the cause and of the appeal, and before pronouncing further allows an account thereof to be given in, and remits to the Auditor to tax and to report.…”

The pursuers appealed to the Court of Session, and on December 23, 1910, the Court pronounced this interlocutor—(after various findings in fact): “Find in law that the pursuers are not in titulo to demand implement of the said contract by the defenders, but further, inasmuch as the Sheriff has found £18 due by the defenders for advertising which the pursuers supplied to them, though not under said contract, and the defender acquiesces in this finding, decern against the defenders for the sum of £18: Find the pursuers and appellants liable in the expenses of the appeal, and remit the account thereof along with the account of expenses found due by the Sheriff to the Auditor to tax and to report.”

On 8th March 1911, when the case appeared in Single Bills for approval of the Auditor's report, which, inter alia, taxed the defender's expenses in the Sheriff Court on the higher scale, counsel for the pursuer moved to deduct from the expenses allowed the sum of £6, 17s. 4d., being the difference between the lower scale as allowed by the Auditor of the Sheriff Court and the higher scale as allowed by the Auditor of the Court of Session, and argued—The defender, if he wished expenses on the higher scale, should have asked for them from the Sheriff. It would be an unfortunate practice to introduce that expenses already taxed in the Sheriff Court on the one scale should be retaxed in the Court of Session on the other. In any case, if the matter was to have been re-opened it should have been brought to the notice of the Court at advising.

Argued for the defender—Contrary to his contention, it had been held that this was not a summary cause (48 S.L.R. 191), and accordingly the defender was entitled to expenses on the higher scale. In the Sheriff Court, however, it would have been inconsistent for the defender to have asked for expenses on the higher scale, as his position then was that it was a summary cause.