Scottish Court of Session Decisions

Lord President—We have found that there has been considerable diversity in practice and fluctuation of judicial opinion relative to the allowance of expenses to a respondent in cases where appeals or reclaiming notes have been withdrawn before hearing. Accordingly we thought it advisable to consult the Judges of the Second Division, and the conclusion we have arrived at is this:—[ v. sup. passage quoted in rubric. ]

It is of course impossible to lay down any hard and fast rule with regard to the time within which such preparation may be considered justified and the expenses allowable. Each case must depend upon its own special circumstances.

We think that it ought to be a general rule, but not an invariable rule, that communication with the other side on the question of printing is indispensable, if there is to be a remit of the respondent's expenses to the Auditor.

The present case we think falls under the general rule, and the respondents should have two guineas of expenses, because they had not communicated with the other side before making such preparations as they say they had made in anticipation of the the hearing.

Lord Johnston—I am of the same opinion. There is one aspect of this matter which has always impressed itself upon me in considering such questions, and that is the impropriety of sending to the Court a series of separate and supplementary prints of documents, confusing the process and making it extremely difficult for the Court to follow the speeches of counsel. There was a time in which what used to be called joint prints were quite common. It seems, so far as my experience goes, that recently agents have deemed it their interest rather to avoid a joint print, if not to resent the suggestion that there should be one.

When one considers the matter in principle and practice, there is no doubt in principle that documents put in evidence are part of the proof, and that strictly the reclaimer would be bound to print the documents just as much as the proof. But there is equally little doubt that the reclaimer is by practice allowed to select the documents which he considers necessary for his own case; still he cannot but know that the documents selected by him may require to be supplemented to include his opponent's case, and common sense, if not professional courtesy, requires that the reclaimer should submit to the respondent what he proposes to print in order that it may be supplemented if necessary.

Now that appears to me to be a duty the performance or non-performance of which should affect the question of expenses. But then I do not think that the respondent is entitled to incur expenses without communicating with the appellant as to what he wishes, and with a proper intimation that if he is not met he is to protect himself by printing what he requires. I think there ought to be reasonable communication between the parties, and that only on proof of such communication and intimation as I have referred to can a respondent claim expenses in such circumstances as we have here.

Lord Skerrington—I concur.

Lord Mackenzie was sitting in the Extra Division.