Scottish Court of Session Decisions

Peter Reid, pit bottomer, Standburn, by Avonbridge, pursuer, brought an action in the Sheriff Court at Falkirk against James Nimmo & Company, Limited, coal-masters, Glasgow, defenders, for £260 compensation under the Employers' Liability Act 1880 (43 and 44 Vict. cap. 42).

The cause was tried before a jury, who assessed the damages at £246, 7s., and the Sheriff-Substitute ( moffatt) applied the verdict on behalf of the pursuer.

The defenders appealed to the Second Division of the Court of Session, on the grounds, inter alia, that (1) the verdict had been erroneously applied, as the finding of the jury did not warrant it, and (2) was contrary to the evidence.

On 27th June 1913 the Court set aside the verdict on the above grounds and allowed a new trial, whereupon the appellants moved for the expenses of the appeal, and argued—Where the Court granted a new trial on the grounds that the verdict had been erroneously applied and was contrary to the evidence, the pursuer was liable for the expenses of the appeal— Bond v. Dalmeny Oil Company, Limited, July 15, 1909, 46 S.L.R. 920.

Argued for the respondent—Where a new trial was granted the expenses should be reserved— Macdonald v. Wyllie & Son, December 22, 1898, 1 F. 339, 36 S.L.R. 262, followed in Canavan v. John Green & Company, December 16, 1905, 8 F. 275, 43 S.L.R. 200.

The Court (which consisted of Lord Dundas, Lord Salvesen, and Lord Guthrie, the Lord Justice-Clerk being absent), without delivering opinions on the question of expenses, pronounced this interlocutor—

“…Sustain the appeal: Recal the said interlocutor: Set aside the verdict, and remit the cause to the Sheriff to allow the parties a new trial, and to proceed as accords: Find the pursuer liable in expenses in this Court, and remit the same to the Auditor to tax and to report to the Sheriff, to whom grant power to decern for the taxed amount thereof, and the expenses of the first trial to be expenses in the cause and to be disposed of by the Sheriff.”