Scottish Court of Session Decisions

A B, pursuer, brought an action of divorce for adultery against his wife, C B., defender.

On 28th March 1917 the Lord Ordinary ( Anderson) pronounced this interlocutor—“The Lord Ordinary … finds facts, circumstances, and qualifications proved relevant to infer that the defender has committed adultery: Finds her guilty of adultery accordingly: Therefore divorces and separates the defender from the pursuer, his society, fellowship, and company in all time coming…. Finds the pursuer entitled to expenses against the defender,” &c

The pursuer lodged a note of objections to the Auditor's report in the following terms:—“… That under said interlocutor [of 28th March 1917] the business accounts incurred by the pursuer to (1) Messrs Warden & Grant, S.S.C., and (2) Mr C. A. M'Grady, solicitor, Dundee, amounting together to £160, 5s. 8d. were lodged with the Auditor for taxation. That the Auditor in his report proposes to tax off the sum of £87, 1s. 8d. Leaving the sum of £73, 4s. That the pursuer's agent, who attended the audit, contended that the taxation as between spouses ought to proceed upon what is known as the consistorial or matrimonial scale, and that after asking for authority for the application of that scale as between a successful husband and an unsuccessful wife, the Auditor sustained the contention of defender's agent, who appeared at the diet, to the effect that the matrimonial scale is limited in its application to cases of wives, whether guilty or innocent, obtaining decree for expenses against their husbands, and is inapplicable to husbands' accounts against wives, and he accordingly taxed the account on a strict party and party basis. That the major part if not the whole of said allowances, amounting to £87, 1s. 8d., are due to said decision on principle. That the pursuer humbly conceives that the said decision is erroneous in principle, and that no distinction can properly be drawn between the rights of a wife against a husband in such a matter, and those of a husband against a wife. He accordingly craves the Lord Ordinary to remit the account back to the Auditor with a suitable instruction or instructions that the matrimonial

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scale is applicable, and that the account falls to be re-audited upon that principle.”

On 20th July 1917 the Lord Ordinary approved of the Auditor's report and decerned in terms thereof.

Opinion.—“This question of taxation arises in connection with an action of divorce which was brought by Captain A B against his wife. The action was undefended, and after hearing evidence I pronounced decree of divorce, finding that Mrs B had committed adultery.

Mrs B is possessed of large separate estate in her own right, and, accordingly, in conformity with well-settled practice, I found that the successful husband was entitled to expenses against the separate estate of his wife.

The husband's solicitors lodged an account of expenses for taxation, and framed the account on what is known as the matrimonial basis of taxation—that is to say, a scale of taxation which is higher than the ordinary party and party scale, but somewhat lower than the high scale of taxation, to wit, that between agent and client.

The Auditor refused to tax the account on this scale, and he ordered an accounting on the party and party scale to be lodged. He has taxed the account on that scale, and the pursuer has lodged a note of objections to the principle of taxation adopted by the Auditor, the contention in the note of objections being that it was the duty of the Auditor in this matrimonial cause—even where the guilty wife was to pay the costs of the successful husband—that it was the duty of the Auditor in these circumstances to apply the matrimonial scale, and that he was wrong in taxing the account on the party and party scale.

Now this raises an entirely new point. This question has never been raised, so far as I can ascertain, either in the Inner House or in the Outer House. The point is not referred to in the most recent book on taxation, that by Mr Anderson Maclaren, or in the work ‘Husband and Wife,’ by Lord Fraser, which is the standard authority on consistorial matters. It therefore falls to be decided by the principle of practice.

The practice of the Court in regard to the taxation of accounts in consistorial causes is settled to this extent—if the expenses are given against a co-defender in favour of an injured husband, it is settled that the husband is entitled to the double account if taxed on the agent and client scale. The co-defender having committed a gross injury against this husband's domestic peace, is compelled to pay the expenses of the injured husband on the highest scale of taxation.

It is also well settled that a wife, whether she be the pursuer or defender in a consistorial action, and whether at the end of the day she be successful or unsuccessful, is entitled, if she has no separate estate, to expenses against her husband. These expenses are invariably taxed on what I have called the matrimonial scale.

But, as I have said before, there is no authority on the point which is now before me. The principle which seems to underlie the fixing of a somewhat higher scale than ordinary taxation in the case of the account of a wife's judicial expenses is just this—that a wife is entitled to be relieved from all reasonable expenses by the husband whom she has wedded and whose duty it is to meet all reasonable costs to which she is put. That seems to me to be the only conceivable principle of what is the settled and recognised practice of fixing upon this scale.

Now, plainly, that principle does not apply to the case I am dealing with. There is no reason in principle why the husband of a wife should receive more from the estate of his wife than he would have received if he had been successful in litigating with a third party,

Accordingly, there being no principle supporting the note of objections, and there being no authority favouring it, I decide that a husband obtaining an award of expenses against the separate estate of his wife is entitled to no higher scale of taxation than that on the party basis. Accordingly I shall repel the note of objections, and grant decree for the taxed amount approved by the Auditor.”

The pursuer reclaimed, and argued—The matrimonial scale of expenses was first recognised in King v. Patrick, 1845, 7 D. 536. It was applied in M'Caw v. M'Caw, 1907, 15 S.L.T. 392, and Petrie v. Petrie, 1911, 1 S.L.T. 410. The underlying principle was that the husband was bound to pay all the reasonable and necessary expenses of his wife. That scale was developed prior to the Married Women's Property (Scotland) Act 1881 (44 and 45 Vict. cap. 21). But now the spouses were on equal terms as regards property. In those circumstances it was only equitable that the matrimonial scale should be applied in favour of the husband as well as of the wife. Fraser, H. & W., pp. 1230 et seq.; Stair v. Stair, 1905, 13 S.L.T. 446; and Milne v. Milne & Fowler, 1871, 2 P. & D. 202, were referred to.

Counsel for the respondent was not called on.