Scottish Court of Session Decisions

The Glasgow Corporation Act 1909 (9 Edw. VII, cap. cxxxvii) enacts—Section 14—“Any elector who shall be dissatisfied with any of the accounts or any item therein may, not later than the twentieth day of December, complain against the same by petition to the sheriff specifying the grounds of objection, and the sheriff shall hear and determine the matter of complaint,” subject to appeal.

The Glasgow Boundaries Act 1912 (2 and 3 Geo. V, cap. xcv), section 80, enacts—“The costs, charges, and expenses of and incident to the preparing for, obtaining, and passing of this Act shall be paid by the Corporation.…”

The Public Authorities Protection Act 1893 (56 and 57 Vict. cap. 61) enacts—Section 1—Where … any action, prosecution, or other proceeding is commenced in the United Kingdom against any person for any act done in pursuance or execution or intended execution of any Act of Parliament …, or in respect of any alleged neglect or default in the execution of any such Act …, the following provisions shall have effect:—( b) Wherever in any such action a judgment is obtained by the defendant it shall carry costs to be taxed as between solicitor and client.…” Section 3—“This Act shall not apply to any action, prosecution, or other proceeding for any act done in pursuance or execution or intended execution of any Act of Parliament, or in respect of any alleged neglect or default in the execution of any Act of Parliament, or on account of any act done in any case instituted under an Act of Parliament, when that Act of Parliament applies to Scotland only, and contains a limitation of the time and other conditions for the action, prosecution, or proceeding.”

John Kemp junior, an elector in the city of Glasgow, pursuer, brought an action against the Corporation of the City and Royal Burgh of Glasgow, defenders, concluding for decree sustaining “the pursuer's objection to the item of £6666, 14s. 10d. contained in the Common Good accounts for the City and Royal Burgh of Glasgow for the year ending 31st May 1913, under the heading ‘Parliamentary Expenses, Session 1912,’ and sub-heading ‘Glasgow Boundaries Act 1912,’ being ‘fees for professional services,’ [disallowing] the said item as a charge against the Common Good of the City and Royal Burgh of Glasgow, and [ordaining] the defenders to rectify the said Common Good accounts accordingly.”

The pursuer averred—“(Cond. 3) The pursuer is dissatisfied with the item of £6666, 14s. 10d. for professional services under the heading ‘Parliamentary Expenses, Session 1912, Glasgow Boundaries Act 1912,’ contained in the Common Good accounts of the defenders for the year 1912–1913, or so much of it as shall appear to contain illegal payments on production of proper and adequate vouchers for the various details of said item. (Cond. 4) In particular, the pursuer avers that payment of £1157 and of £795, 9s. 5d. were made to Mr Robert Kyle, writer, Glasgow, and Mr David

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Crawford, writer, Glasgow, respectively, which are not properly vouched in said accounts, and that there are numerous other items in the said payment of £6666, 14s. 10d. which are in the same position. It is to these and similar items in the said payment of £6666, 14s. 10d. that the pursuer objects. The vouchers for said payments are admittedly false in respect that not only are they for ‘professional services rendered,’ but they also include, as explained in condescendence 5, outlays for £507 and £250 expended by the said Robert Kyle and David Crawford without any details being rendered in connection therewith. (Cond. 5) The vouchers for the payments above referred to do not contain as they should contain details of the accounts for which the payments were made. The Town Clerk, in answer to a letter, wrote to Mr Alex. M'Clure, 132 West Regent Street, Glasgow, as follows:—‘I duly received your letter of the 25th ultimo as to the sums paid to Mr Robert Kyle, writer, and Mr David Crawford, writer, for professional services in connection with the promotion of the Bill for the above Act. The sums paid include £507 and £250 respectively for outlays, but I am not in a position to give you any further details, as the Sub-Committee who had powers met with these gentlemen and the other law agents who gave similar services and adjusted with them a fee for the same.’ (Cond. 6) The pursuer avers that the defenders are bound to produce to the Court details of the services rendered by the law agents referred to and also of the said two sums of £507 and £250 of alleged outlays. It is further averred that the law agents referred to did, as a matter of fact, render to the Town Clerk detailed accounts both of their services and of their outlays; that these accounts were not submitted to the Committee in charge of the Parliamentary Bill referred to; nor were they submitted to and passed by the Corporation. It is also averred that these detailed accounts disclosed illegal payments, in consequence of which some of them were returned to the law agents referred to and a simple receipt ‘for professional services’ taken in lieu of a discharge of the accounts. Moreover, said receipts do not comply with articles 35 and 36 of the defenders' standing orders. (Cond. 7) The pursuer avers that the form of receipt taken and the absence of proper details is a device by the defenders and those acting with them to conceal illegal payments made by the defenders in connection with the promotion of the Glasgow Boundaries Act 1912. (Cond. 8) It is averred that said payments are illegal, in respect that they contain, inter alia, payments in respect of election expenses of annexationist candidates for membership in the Municipal Councils in the burghs of Govan, Partick, and Pollokshaws, and in various portions of the counties sought to be annexed. A number of these payments were made and expenses incurred through alleged Ratepayers' Committees in Govan, Partick, and other districts annexed, said Committees having been formed by the said Robert Kyle and David Crawford as agents for the defenders and acting solely for them.”

The pursuer pleaded, inter alia—“1. The pursuer being dissatisfied with the said Common Good Accounts of the City of Glasgow, and having specified grounds of his objection to the items therein, is entitled to have his complaint heard and determined upon by the Court. 2. There being illegal payments in the items complained of, the pursuer is entitled to have the findings of the Court upon these items, and, if so advised, to have the defenders ordained to rectify the said Common Good accounts accordingly.” The defenders pleaded, inter alia—“1. The averments of the pursuer, so far as material, being irrelevant and insufficient to support the crave of the petition, the action should be dismissed. 7. The pursuer should be found liable in expenses as between agent and client, in terms of the Public Authorities Protection Act 1893.”

On 8th March 1917 the Sheriff-Substitute (A. S. D. Thomson) repelled the first and second pleas-in-law for the defenders and allowed a proof.

The defenders appealed to the Sheriff (A. O. M. Mackenzie), who on 25th February 1918 recalled the interlocutor of the Sheriff-Substitute, sustained the first plea-in-law for the defender, and dismissed the action.

To his interlocutor was appended the following note:—“The question raised, shortly stated, is whether it was illegal for the defenders to apply moneys from the Common Good in paying the election expenses referred to, and in my opinion this question falls to be answered in the negative. At the time when liability for these expenses was incurred the defenders were promoting a Bill for the extension of the boundaries of the City of Glasgow. This Bill afterwards received the approval of Parliament, becoming the Glasgow Boundaries Act 1912. Section 80 of the Act provides ‘that the costs, charges, and expenses of and incidental to the preparing for, obtaining, and passing of this Act, or otherwise in relation thereto, shall be paid by the Corporation …’ The effect of this section is to make it quite clear that the Corporation are entitled to apply money forming part of the Common Good of the city to meet expenses incurred ‘in preparing for, obtaining, and passing’ the Act, ‘or otherwise in relation thereto,’ provided the purposes for which the moneys were expended were not illegal, for I concede to the pursuer that section 80 cannot be read as authorising expenditure of an illegal nature, e.g., on bribery. If, accordingly, the expenses objected to come within the classes of expenditure described in the section, and are not illegal, the funds of the Common Good might properly be applied in paying them. Now I do not think that it could reasonably be maintained that the expenses objected to were not expenses incidental to ‘the preparing for, obtaining, and passing the Act.’ The defenders, as promoters of the Bill, were entitled to lay their scheme before the inhabitants of the districts which would be affected by the changes they proposed, and to endeavour to form and develop opinion among these inhabitants in its favour, and any legitimate expense which they might incur in so doing was, in my opinion, in the sense of section 80, an expense incidental to the obtaining of the Act. This was practically conceded by counsel for the pursuer, who admitted that no exception could be taken to the expense of propaganda of various kinds, as, for example, by meetings and canvassing. The question thus comes to be whether there is any valid ground of distinction between expenditure on such objects and the expenditure objected to? For myself I can find none. I concede that in ordinary circumstances, that is, when no such proposal as the Boundaries Bill was being agitated, it would be illegal for the Corporation, as administrators of the Common Good, to apply its funds to payment of the expenses of candidates at elections in neighbouring municipalities or county districts, but it would be equally illegal for the Corporation to apply money from the

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Common Good to propaganda work in the adjoining burghs and county districts, and the reason would in both cases be the same, namely, that such expenditure could not be regarded as in any reasonable sense expenditure for the benefit of the citizens of Glasgow for whom the Common Good is held and falls to be administered. But when it has to be admitted that expenses incurred on propaganda work in the adjoining localities might properly be met out of the Common Good Fund, I fail to see why the payment of the election expenses of candidates should be regarded as illegal, such expenditure being well adapted to achieve the object in view—the formation of opinion in favour of the Bill, and the obtaining of the Act, and not being in itself expenditure of an illegal character, for it cannot be maintained that there is any illegality in one person paying the election expenses of another…”

The pursuer appealed, and argued—The pursuer's averments were relevant and a proof should be allowed. The pursuer was entitled to complain of the accounts—Glasgow Corporation Act 1909 (9 Edw. VII, cap. cxxxvii), section 14, and he must state specific objections— Eadie v. Corporation of Glasgow, 1916 S.C. 163, 53 S.L.R. 139. The pursuer's objection was as specific as it was possible to make it. The sole information given him was that certain sums had been paid “for professional services.” It was now admitted that that sum was in part for outlays. The vouchers for that sum did not accurately disclose how it had been expended, and that voucher had been laid before the auditor and was proceeded upon by him. The voucher had been tampered with or fabricated so as to keep the auditor in the dark and to get him to pass the accounts. There had been no statutory audit in those circumstances. The defenders as trustees of the Common Good had no mandate to pay away large sums without taking proper vouchers. Alternatively the defenders were acting illegally, for they clandestinely approached and bought the opinions of those whom they afterwards put forward as honest and independent candidates. Eadie's case ( cit.) was distinguishable, for there the objection was general. Eadie v. Glasgow Corporation, 1908 S.C. 207, per Lord President (Dunedin) at p. 217, 45 S.L.R. 171, was referred to. A proof should be allowed, or at least the production of detailed vouchers for the items complained of should be ordered.

Argued for the defenders (respondents)—The averments of the pursuer were irrelevant. A burgess of a royal burgh had at one time a right to call for the production of any particular voucher—The Royal Burghs (Scotland) Act 1822 (3 Geo. IV, cap. 91), section 3. That right was taken away and a new and self-contained system of auditing those accounts was introduced by the Glasgow Corporation Act 1909, sections 5, 6, 11, 12, 13, 16 (3), and Schedule 3. Under that new code an elector could object to the accounts before the Sheriff, but the objection must be pointed and precise— Eadie v. Corporation of Glasgow ( cit.). Here the pursuer did not specify an illegality, but merely objected to an illegality which he stated he would discover on exhibition of the vouchers. Section 14 of the Act of 1909 did not entitle an elector to re-audit the accounts, and the sort of inquiry here desiderated was excluded by section 16 (3) ( a). It would have been different if the pursuer had stated a particular item did not disclose the nature of the expenditure. As regards the particular items challenged, the pursuer wished minute details so that he could consider each detail and decide whether it was justified. He was not entitled todo so. There could be no objection to those accounts being stated in the lump. They were not ordinary law agents' accounts for items covered by the table of fees. Such accounts were regularly rendered in a lump sum in parliamentary promotions, e.g., architects' and doctors' accounts. There was no illegality in spending money to create a public opinion in favour of annexation. Further, the record did not disclose that there had been any misrepresentation, i.e., that the candidates whose expenses had been paid held themselves out as disinterested parties.

At advising—