Scottish Court of Session Decisions

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Cite as: [1913] ScotLR 54, [1913] SLR 54

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SCOTTISH_SLR_Court_of_Session

Page: 54↓

Court of Session Inner House Second Division.

(SINGLE BILLS.)

Tuesday, November 18. 1913.

51 SLR 54

Bonnar

v.

Bonnar.

Subject_1Expenses
Subject_2Husband and Wife
Subject_3Parent and Child
Subject_4Expenses of Wife in Note for Access to Child — Interim Award — Guardianship of Inf ants Act 1886 (49 and 50 Vict. cap. 27), sec. 5.
Facts:

The Guardianship of Infants Act 1886 enacts—Section 5—“The Court … in every case may make such order respecting the costs of the mother and the liability of the father for the same, or otherwise as to costs as it may think just.”

In a note for access to a pupil child at the instance of the mother, arising in a petition for custody at her instance, the Court granted her an interim award of expenses.

Headnote:

The Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 5, is quoted supra in rubric.

Mrs Agnes Swift or Bonnar, Main Street, Neilston, wife of Neil Bonnar junior, residing at Langside Road, Glasgow, presented a note to the Court. She stated that on 24th October 1911, in a petition for the custody of her pupil son at her instance, the Court refused her the custody but allowed her access, subject to arrangement between the parties, and that the respondent had refused her reasonable access. She craved the Court to allow her access to her child. The respondent having lodged answers, a proof was allowed on the note and answers, and the petitioner thereafter in Single Bills moved for an interim award of expenses.

Argued for the petitioner—The Court had power under the Guardianship of Infants Act 1886 (49 and 50 Vict. cap. 27), sec. 5, to make an interim award of expenses. The case of A B v. C D, June 27, 1906, 8 F. 973, 43 S.L.R. 731, was not authoritative, because the statute was not referred to as the foundation of the claim.

Argued for the respondent—Ah interim award of expenses would only be granted in consistorial causes, and a petition for custody was not a consistorial cause. The principle on which such an award was based was that the husband was liable for the “necessary” expenses of the wife, but the wife's expenses in a petition were not “necessaries”— A B v. C D) ( cit. sup.). There was no precedent for giving an interim award of expenses in a case where expenses would only be given as between party and party. The Act, no doubt, gave a general power to deal with expenses, but this could not cover interim expenses unless per expressum.

Judgment:

Lord Justice-Clerk—I am clearly of opinion that section 5 of the Guardianship of Infants Act 1886 gives us absolute discretion in cases such as this to deal with the question of expenses, and I am unable to hold that we are excluded from dealing with this question of interim expenses which is now before us. If, as was argued, the intention of that section was that we should only have a discretion in pronouncing a final decree for expenses, that should have been expressly stated, because the general power of the Court to award expenses includes the power of dealing with expenses at any stage of a case if occasion arises making it right to deal with any expenses before final judgment. [ His Lordship then dealt with the circumstances in which the application was made.] Holding, as I do, that the motion is competent, I think that in this case there ought to be an award of expenses, and I would propose to your Lordship to grant a modified sum of seven guineas.

Lord Dundas—I agree in thinking that we have an absolute discretion in this matter; that the petitioner is entitled in the circumstances to a reasonable award of expenses to enable her to bring her witnesses to the proof which has been allowed at the instance of the husband; and that seven guineas would be a reasonable amount to award her.

Lord Salvesen—I agree. If this were an application at common law, I think that there would be great force in Mr Stevenson's argument. We are certainly not in the habit of granting interim awards of expenses except in consistorial causes. But this application is based on a statute which expressly gives us very wide powers in dealing with the matter of expenses. Moreover, although the action is not a consistorial one, it is a process between husband and wife with reference to the issue of the marriage in which the wife's rights have now been placed more or less on an equality with those of the husband. [ His Lordship then dealt with the circumstances of the application.]

Lord Guthrie concurred.

The Court found the petitioner entitled to seven guineas expenses.

Counsel:

Counsel for the Petitioner— King Murray. Agent— James M'William, S.S.C.

Counsel for the Respondent— James Stevenson. Agent— Campbell Faill, S.S.C.
1913