Scottish Court of Session Decisions

The pursuer elected to bring a case against the defenders asking decree against them jointly and severally. The Lord Ordinary assoilzied one of these defenders, and exercising his discretion found the defenders whom he held to be in fault liable in expenses both to the pursuer and co-defender. When the case came here, not only did the Dairy Company reclaim, but the pursuer instead of resting content with his judgment and being prepared to defend his judgment against the Dairy Company, elected to take up the position of saying that both defenders were liable to him, and accordingly reclaimed against the Lord Ordinary's judgment.

I cannot see in these circumstances why the Dairy Company are to pay the pursuer for this trial to better his position in the Inner House from what it was in the Outer House by getting two defenders jointly and severally made liable instead of one, and I cannot see any ground in law why the Dairy Company should be found liable for any expenses except the expenses which they ought to pay to the pursuer. I am of opinion that the Corporation should be found entitled to their expenses in the Inner House against the pursuer.

Lord Dundas—I think this point is a difficult one, but I agree with what your Lordship has said. We are dealing here only with the Inner House expenses. Now I rather think that after the position had been cleared up and the facts expiscated in the Outer House, and after the Lord Ordinary had pronounced a decision, it was then the pursuer's business to make up his mind, and if he was satisfied with and had confidence in the Lord Ordinary's judgment, to take up the definite attitude that he did not reclaim. This he did not do. I am very far from saying he was ill advised, but he distinctly assumed the attitude “I do reclaim.” That being so I do not see why the course your Lordship proposes should not follow.

Lord Salvesen—I am sorry I am unable to agree with the judgment proposed. It seems to me that the pursuer's attitude in the Inner House was just exactly the attitude he took up in the Outer House where he said—“I am not really concerned as to who is to blame, but as each party blames the other I cannot prejudge the case by withdrawing my claim for damages against either.” Now the position that Mr Maclaren took up in the case was that he was perfectly content with the judgment of the Lord Ordinary, that he had no interest whatever in maintaining the reclaiming note, that he would not have been there if the Scottish Farmers' Dairy Company had not reclaimed, but very reluctantly he was constrained to take up the position that he must state his case against both, because it was indicated by some of your Lordships that if he said that he was content with the Lord Ordinary's interlocutor then the Solicitor-General for the Corporation would not require to reply.

I do not think myself that that would have been in accordance with our practice or in accordance with the law. The true contradictor of the Scottish Farmers' Dairy Company was the Corporation, because the Scottish Farmers' Dairy Company could not exonerate themselves without at the same time imputing blame to the Corporation, and the same applied to the Corporation, that they could not exonerate themselves without imputing blame to the owners of the motor tractor. In these circumstances I should have thought that undoubtedly the pursuer might have stood aside, as indeed he wished to do, and not taken part in the discussion, and that in such circumstances we would only have given him the usual watching fee, but in view of the difference of opinion on the Bench in the matter of procedure he felt he could not incur the risk of that.

For my own part I think we should have been bound to decide whether he intervened in the case or not, whether either or both of these defenders were liable, and the mere fact that he reclaimed would not affect the rights or liabilities of either of the defenders. But I think Mr Wark's motion did not go so far as your Lordship suggests and proposes to give effect to it in this case. Mr Wark asked expenses against the two sets of reclaimers, and I cannot understand why, if there are two unsuccessful reclaimers, the one who has no interest in the matter should be held bound to pay the whole expenses of the person who ultimately is successful. That seems to me to be an untenable position, and if I had acceded to the motion at all it would have been on the footing that Mr Wark should get his expenses against both and not only against the pursuer.

Lord Guthrie—I have great sympathy with the position of the pursuer at the earlier stage of a case of this kind where there are two possible authors of the damage he has suffered. But once the facts have all been sifted he must make up his mind, in the event of one of the defenders being assoilzied, whether he is to reclaim against that judgment. If he reclaims, then as reclaimer he must incur the risk of the payment of the expenses of the successful respondent. The pursuer's proper course from the start would have been to have made an arrangement to stand aside and leave the defenders to fight out the case. He never even proposed to do so, and he must take the consequences.

The Court found the defenders the Scottish Farmers' Dairy Company liable in expenses to the pursuer, and the defenders the Glasgow Corporation entitled to their expenses in the Inner House against the pursuer.