Scottish Court of Session Decisions

Now, one of the obvious disadvantages of raising that question in the present case is that the reclaimer, to wit, the Crown, has not thought fit to open the case upon the merits, so that we are denied an opportunity of considering the question of the construction of this settlement. But I think we see enough of the case from the opinion of the Lord Ordinary, which was read to us by Mr Smith Clark, clearly to discern that his Lordship may—not necessarily that he must—he may have considered that the case of Jack's Executor v. Downie, 1908 S.C. 718, raised and decided the point which was before him, and in that view he may have—again I do not say he must—he may have thought that the question raised by the Crown was so hopeless that it ought never to have been raised. The Lord Ordinary may have come to that conclusion, but I do not think we ought, having the question of expenses merely before us, to interfere with his discretion, and in saying so I for my part have treated the Crown exactly as I would treat one of His Majesty's subjects.

I am therefore for affirming the interlocutor of the Lord Ordinary.

Lord Mackenzie—I am of the same opinion. It was admitted by the counsel for the Crown, in answer to a question, that the Lord Advocate was in exactly the same position as any ordinary litigant, and that admission could not be withheld in view of the terms of section 24 of the Court of Exchequer (Scotland) Act 1856, which provides that in a question with the Crown, the rules, regulations, and provisions touching expenses of process are to apply just as if the litigation were between subject and subject.

Accordingly we have here a reclaiming note by one who, in the matter in hand, is in exactly the same position as a subject, and for my part I am prepared to accent the rule—the salutary rule—which Lord Shand laid down in the case of Fleming v. North of Scotland Banking Company (1881) 9 R. 11, at p. 14. His Lordship there says—“It has been frequently said in this Court that a party seeking review of a question of expenses only is in very unfavourable circumstances, and the Court will discourage appeals on reclaiming notes on expenses merely. But I know of no authority for saying that where a case of obvious or gross injustice can be made out a party is precluded from bringing such a question before us.”

Now what the Lord Ordinary has done in this case is to negative an argument maintained on behalf of the Crown as ultimus hæres—that the words in the will under consideration differ from the words used in Jack's Executor v. Downie, 1908 S.C. 718.

The Lord Ordinary held that the description of the estate in Mrs Watson's settlement, “my whole means and estate,” was not narrower than the words used in Jack's case, “all my estate.” He therefore held that the claim by the Crown was negatived by an express judgment of this Court, and in those circumstances it appears to me out of the question to say that he was not entitled in the exercise of his discretion to say that the Crown must pay the expenses of the party with whom they had been contesting that question of right, and that is sufficient for the determination of the present question. It is a question solely upon the special circumstances of this case. It raises no question of general principle whatever.

I accordingly agree with your Lordship.

Lord Skerrington—I agree with your Lordship on both points. In the first place I think that the Crown falls to be dealt with in the same way as a private litigant. In the second place, I agree that a person who appeals or reclaims purely on a question of expenses is in an unfavourable position in this respect, that the Court cannot possibly have such an intimate knowledge of the circumstances and merits of the action as if the case had been discussed in the ordinary way. It necessarily follows that the Court will be more slow to interfere with the discretion of the Lord Ordinary on the question of expenses than it would have been if it had heard a full debate and had been disposing of the merits also. On the other hand I demur to any such view as that the Court is entitled for reasons of expediency to discourage appeals purely on the question of expenses. The duty of the Court is to consider any question which comes competently before it.