Scottish Court of Session Decisions

The Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii) enacts—Section 134—“Where any order or sentence of the Magistrate or Dean of Guild, following on an application by the Procurator-Fiscal, is brought under review, or where any action is brought against the Fiscal, or against any officer or constable, in consequence of anything done in pursuance of this Act or of the order or sentence of the Magistrate or Dean of Guild, the Procurator-Fiscal shall immediately make a report of the facts and circumstances to the Magistrates' Committee, and such committee shall thereupon resolve either that such order or sentence so brought under review, or such action, shall be defended at the expense of the Board, or that it shall not be so defended; and if they resolve that it shall be so defended, the Magistrates' Committee shall thenceforth take the superintendence and control of the case, and the Board shall relieve the Fiscal or other defender from liability for all or any of the conclusions thereof; and if the Magistrates' Committee resolve that it shall not be so defended, they may, if they see cause, agree that the Board shall relieve the Fiscal, or other defender, from the consequence of not defending the same, and the Board shall in such case relieve them accordingly.”

Duncan Harvey, coppersmith and brass-founder, Glasgow, pursuer, brought an action against the Corporation of the City of Glasgow, defenders, for payment of a sum of £150, 1s., being the expenses due to him in an action of damages against two police constables of the city in which he had obtained a verdict, and in which he averred the Corporation had acted as dominus litis.

The pursuer pleaded, inter alia—“(1) The defenders having become responsible for the defence of the two police constables in the action mentioned on record, and being the true domini litis of the defence therein, are liable to the pursuer in the expense thereby occasioned. (2) The defenders, in virtue of the powers conferred upon them by the Glasgow Police Acts, having relieved the said constables of the expense of defending said action, are liable to the pursuer in the expenses of said action, and decree should be pronounced as craved.”

The defenders pleaded, inter alia—“(1) The defenders, not being liable to the pursuer in respect of the defence to the action condescended upon, should be assoilzied from the conclusion of the summons. (2) The averments of the pursuer so far as material being unfounded in fact, the defenders should be assoilzied.”

The Lord Ordinary ( Dewar) before answer allowed parties a proof of their respective averments. The facts of the case and the import of the proof appear from the opinion of the Lord Ordinary, who on 19th February 1914 decerned against the defenders in terms of the conclusions of the summons.

Opinion.—On 23rd October 1910 the pursuer was apprehended without a warrant in Apsley Place, Glasgow, and conveyed to the Southern Police Office by Alexander Sturgeon and Andrew Stirling, both Glasgow police constables. The pursuer regarded his apprehension as illegal, and after corresponding with the Town Clerk and Chief-Constable in Glasgow he brought an action, concluding for £500 damages, against the constables in the Glasgow Sheriff Court in February 1911. After sundry procedure this action was remitted to the Court of Session for jury trial, and was tried before Lord Skerrington and a jury on 18th July 1912. A verdict was returned for the pursuer with damages assessed at £40. The verdict was applied and decree pronounced in the pursuer's favour for the damages and expenses, which were taxed at £150, 1s. The defenders have declined to pay the expenses, and maintain that they are not liable therefor. Hence this action. The defenders admit that they supplied the funds to enable the constables to defend the action, but they deny that they had such interest in the subject-matter thereof or such control of it as to render them liable as domini litis.

It may be convenient if I state, before considering the evidence, what in my opinion must be proved to establish liability against the defenders as domini litis. It is not sufficient that they took an interest in the case, and gave encouragement and advice, and supplied the funds to carry it on. To render them liable it must be shown that they had practically the entire interest in the subject-matter of the action, and through that interest had a proper control over the conduct of the defence, with power to push it on or retard it, or put an end to it altogether. If that is established, then they were parties to the suit and under an implied obligation to the pursuer to perform the judgment and, inter alia, to pay such expenses as might be awarded. The question therefore is whether the defenders had in point of fact such an interest in the subject-matter of the action and power of control over it. I think they had. Their defence is that as the subject-matter was a claim directed against the constables, they were not, and could not be, concerned with that; that their only interest was to see that the constables got a fair trial, and with a view to that they provided funds for the defence. If that had been the true position of matters I should have had no difficulty in agreeing with them. But I do not think it is. It is true that the claim is directed against the constables, and originally they and they alone were interested. But the defenders intervened, and by their intervention I think they relieved the constables from all liability and undertook responsibility themselves. They are not in the position of ordinary employers who supply funds and give advice to a servant to enable him to defend himself against what they regard an unjust claim. The defenders' power to intervene, and their duties and responsibilities arising in respect of such intervention, are regulated

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by the 134th section of the Glasgow Police Act 1866. It provides that—‘…[ quotes, v. sup.] …’

Now on 23rd March 1911 the Magistrates’ Committee passed a resolution by which they ‘agreed to recommend the Corporation to relieve the said defenders of the expense of defending the case.’ When such a resolution is passed the 134th section provides that two things shall follow—(1) the Magistrates’ Committee shall henceforth take control of the case, and (2) they shall relieve the defenders from all liability for all or any of the conclusions of the action. That is to say, the constables cease to have any interest in the subject-matter or power of control. Both are vested in the defenders, and they become the true domini litis, liable for all the conclusions, including the conclusion for expenses.

“But it is said that section 134 does not apply in this particular case, because before the committee passed the resolution the constables had already engaged a solicitor of their own, who conducted the case for them throughout, and that the Town Clerk, who invariably conducts cases to which this section applies, had no opportunity of conducting the case on behalf of the Corporation, and did not in point of fact do so. Even if this had been proved in evidence I doubt whether it would have helped the defenders' case. As I read the section, when the committee resolve to defend at the expense of the Board they are directed to take control. It is a duty imposed upon them; and I do not see how neglect of this duty could relieve them from responsibility. But in any case I am satisfied on the evidence that they by no means neglected this duty. Mr Lindsay, who was then Depute, and is now Town Clerk, although not nominally in charge directed and controlled the defence from beginning to end. When the pursuer's solicitor wrote to the constables threatening an action they took the letters to Mr Lindsay, and he drafted suitable replies, which the constables sent to the pursuer's agent. Mr Lindsay then wrote to the Chief-Constable asking him to report on the facts of the case for submission to the Corporation. The Chief-Constable did so, and his report was submitted on 29th September 1911. The committee then resolved to defend any action raised against the Corporation, and instructed the Town Clerk to watch any action which might be brought against the constables. In the end of January an action was raised against the constables. They at once took the service copies to Mr Lindsay, and he asked Mr Mackenzie, solicitor, Glasgow, who had defended the same two constables on a previous occasion, to undertake the defence. Mr Mackenzie did so, and was in charge of the defence until he was made assistant Town Clerk on 1st December 1911, and the action was then handed over to Mr Rosslyn Mitchell, solicitor. The constables were not consulted as to the change of agency. Mr Mackenzie says that he looked upon the constables as his clients, and so they were in a sense, but it is quite clear on the evidence that it was to Mr Lindsay that he looked for instructions. Mr Lindsay revised and adjusted the defences; he advised on all points of difficulty, including a proposal to settle, when the constables do not appear to have been consulted; he decided when counsel should be employed and selected the counsel: he attended debates in court and consultations with counsel. He was consulted in everything and controlled the whole defence, just as if one of his subordinates in the Town Clerk's office had been in charge of the case. It is suggested that he did all this not as representing the Corporation but partly because of benevolent interest in the constables, and partly on account of his friendship with Mr Mackenzie. I have no doubt he was interested in the constables, and that he would gladly help Mr Mackenzie or anyone else who required help. But Mr Mackenzie is a solicitor of experience who did not require help, and the constables’ interests were safe in his hands. I am certain that he would not have asked for the assistance he received, nor would Mr Lindsay have given it from the Town Clerk's office, unless they had both known that the Corporation was interested in the defence. And the nature of that interest is disclosed in the minute of 23rd March, to which I have referred. It proceeds on the narrative that the Town Clerk reported that an action of damages for £500 had been raised against the constables, and that Mr Mackenzie, the law agent, had written to explain that he had received intimation that the pursuer was to be represented by counsel in the case, and that the defenders were unable on account of the expense to retain counsel. The committee then reconsidered the whole case, and having regard to the approved service of the defenders in the force, and the fact that the action had arisen in the honest discharge of their duty as reported on by the Chief-Constable, who had held a searching inquiry and had acquitted the constables of wrongous or reckless action, they agreed to relieve the defenders from the expense of defending the case. All this, I think, shows that after full consideration the defenders reached the conclusion that this was one of the cases in which they ought to exercise the powers conferred upon them by section 134, and relieve the constables from all liability under the conclusions of the action, and they accordingly resolved to do so. This was evidently their own view at the time, for my attention has been directed to the open record, where it is ‘Admitted that the defenders, in agreeing to relieve the said constables of the expense of defending the action in question, acted under the authority contained in the section referred to.’ The defenders have changed this view, and have deleted this admission from record; but I think their first impressions were correct, and that they really intended to relieve and did relieve the constables of approved service, who in the honest discharge of their duty had done nothing reckless or wrong, from all liability. But they could only do this by accepting liability themselves. I am

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accordingly of opinion that the pursuer is entitled to decree in terms of the conclusions of the summons, with expenses.”

The defenders reclaimed, and argued— Esto that the Corporation had acted under section 134 of the Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), that fact did not per se make them liable as domini litis. Liability as such depended on other facts. All that the Corporation had done under the section was to agree to pay the expenses of the constables, and a mere agreement to pay expenses did not infer liability as dominus litis— Stevens v. Burden, November 21, 1823, 2 S. 507 (447); Waddel v. Hope, December 2, 1843, 6 D. 160; Mathieson v. Thomson, November 8, 1853, 16 D. 19; Fraser v. Malloch, February 8, 1896, 23 R. 619, 33 S.L.R. 594 M'Cuaig v. M'Cuaig, 1909 SC 355, 46 S.L.R. 287. The true test was whether the alleged dominus had power to compromise the action, and the Corporation had no such power in the present case— M'Cuaig v. M'Cuaig ( cit. sup.), per Lord Dunedin at p. 357. They had no such direct and continuous control of the action as was necessary, and they had not the entire interest in the subject-matter of the action, which was one in which character was involved. The fact that the action was one involving character was important. It was to be remembered that the alleged dominus litis was dominus litis for the defender. Where the pursuer had selected his defender, in such a suit, the presumption was against his being able to show that anyone else had undertaken the control of the defence. Further, the interest of the dominus must be material, e.g., in money at stake, and through that interest there must be full and exclusive control. Joint control and interest not material would not infer such liability— Kerr v. Employers’ Liability Insurance Corporation, Limited, October 20, 1899, 2 F. 17, 37 S.L.R. 21. In any event section 134 was not carried out in terms, and the Corporation could not be bound by any actions of the Town Clerk out with his mandate. The Corporation had power to act as they did at common law, and to meet the expenses out of the police rates under their general police powers.

Argued for the pursuer—The defenders were liable. As a Corporation their powers were limited by statute, and they could only act here under section 134 of the Glasgow Police Act 1866 ( cit). Only under that Act could they meet the expenses out of the police rate as they had done. From first to last the proceedings had been controlled by the Town Clerk, and the Corporation could not plead as against the present pursuer that that official was acting ultra vires. But in any event section 17 of the Glasgow Corporation Act 1895 (58 and 59 Vict. cap. cxliii) gave express power to employ outside agents. Exclusive control was not necessary to infer liability as dominus. It was sufficient if there was joint control— Maxwell v. Young, March 7, 1901, 3 F. 638, 38 S.L.R. 443; Fraser v. Cameron, March 8, 1892, 19 R. 564, 29 S.L.R. 446; Walker v. Walker, January 20, 1903, 5 F. 320, 40 S.L.R. 271. If this were not so the Corporation would really become a party to the cause, but a dominus litis was something different, and could not be sisted as a party to the cause— Hepburn v. Tait, May 12, 1874, 1 R. 875, 11 S.L.R. 502. Even if all that the Corporation undertook was to relieve the defenders of their expenses, this included the expenses which the defenders might have to pay to the successful pursuer. Apart from the statute, there was ample ground for holding that at common law the Corporation had the active interest in the case.

At advising—