Scottish Court of Session Decisions

No. 3 of the General Regulations appended to the Act of Sederunt 15th July 1876 provides—“The expenses to be charged against an opposite party shall be limited to proper ‘expenses of process,’ without any allowance (beyond that indicated in the table) for preliminary investigations, subject to this proviso, that precognitions (so far as relevant and necessary for proof of the matters in the record between the parties), although taken before the raising of an action or the preparation of defences, and although the case may not proceed to trial or proof, may be allowed where eventually an interlocutor shall be pronounced either approving of issues or allowing a proof.”

In two conjoined actions of salvage at the instance of (1) J. S. Boyle, trawl owner, Aberdeen (owner of the steam trawler “Glenogil” of Glasgow), against Fred. Olsen, Christiania, Norway (owner of the s.s. “Balduin”), and (2) The Lindsey Steam Fishing Company, Limited, Grimsby (owners of the steam trawler “Lacerta” of Grimsby), against Actieselskabet Bonheur, Christiania (owners of the s.s. “Balduin”), the Lord Ordinary, before pronouncing an order for proof, allowed the defenders three days to consider whether they would lodge a tender which they had proposed making. The three days having expired without the tender having been lodged, his Lordship, on 16th July 1912, on the motion of the pursuers, pronounced the usual order for proof. Shortly thereafter, and before the interlocutor was signed, the defenders lodged a tender, which the pursuers accepted. The order for proof was thereafter discharged, the defenders being found liable in expenses up to the date of the tender. In taxing the pursuers' accounts of expenses the Auditor allowed, under the heading “preparations for proof,” certain charges, amounting in Boyle's case to £18 odd, and in the Lindsey Steam Fishing Company's case to £28 odd. The nature of the items in question sufficiently appears from those objected to in Boyle's case, which were as follows:—

“Preparations for Proof.

1911—Dec. 4.
Instructions for precognitions	£1	11	6
Meeting and instructing Mr David Anderson, consulting engineer, to value the “Balduin”	0	10	0
Paid him fee	4	4	0
Drawing precognition, 1 sh	0	3	0
Meeting and instructing Mr John Rust to value the cargo of the “Balduin”	0	10	0
Paid him fee	3	3	0
Drawing precognition, 1 sh.	0	3	0
Meeting and instructing Captain W. L. Main to survey damage to “Glenogil”	0	10	0
Paid him fee	3	3	0
Drawing precognition, 1 sh.	0	3	0
Drawing precognition of Captain Rix, 5 shs.	1	10	0
Drawing precognition of F. A. Morton (mate), 5 shs.	1	10	0
Three copies precognitions, 13 shs.	1	19	0
	£18	19	6”

The Auditor having lodged his report the defenders objected to his allowance of these items, and on 31st October 1912 the Lord Ordinary ( Dewar) sustained their objections.

[ His Lordship sustained similar objections in the Lindsey Steam Fishing Company's case.]

The pursuers reclaimed, and argued—The Lord Ordinary was in error in disallowing the items in question, for where, as here, an order for proof had been pronounced the pursuers were entitled to such expenses as had been necessarily and properly incurred in preparing therefor—General Regulation No. 3, appended to A.S., 15th July 1876.

Argued for defenders—Where, as here, the lodging of the tender was simultaneous with the order of proof the pursuers were not entitled to the charges made. Certain of these items were for precognitions, and where, as here, the pursuers were aware that a tender was about to be lodged they were not entitled to incur such expense, or at any rate to charge their opponents therewith— Walker and Others v. Barclay, 1909, 1 S.L.T. 500. The practice had been otherwise— Mica Insulator Company, Limited v. Bruce Peebles & Company, Limited, 1907 S.C. 1293, 44 S.L.R. 674.