Scottish Court of Session Decisions

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Cite as: [1919] ScotLR 521, [1919] SLR 521

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SCOTTISH_SLR_Court_of_Session

Page: 521↓

Court of Session Inner House Second Division.

(Single Bills.)

[Sheriff Court at Wigtown.

Wednesday, July 9. 1919.

56 SLR 521

Thomson

v.

Earl of Galloway.

(Reported supra, p. 448.)

Subject_1Expenses
Subject_2Landlord and Tenant
Subject_3Arbitration
Subject_4“Expenses of and Incidental to Arbitration and Award'” — Expenses Incurred in Preparing and Submitting Special Case to Sheriff — Expenses in Sheriff Court — Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), Second Schedule, sec. 14.
Facts:

Held that expenses incurred in preparing and submitting a special case under the Agricultural Holdings (Scotland) Act 1908 for the opinion of the sheriff did not fall within an allowance by the sheriff of “expenses in this court” but were expenses “of and incidental to the arbitration and award” in the sense of section 14 of the Second Schedule of that Act, and as such in the discretion of the arbiter.

Headnote:

The Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64) enacts—Second Schedule, section 14—“The expenses of and incidental to the arbitration and award shall be in the discretion of the arbiter, who may direct to and by whom and in what manner those expenses or any part thereof are to be paid …”

In an arbitration arising out of a claim for compensation lodged by William Thomson, tenant of the farm of Polwlhilly, Wigtownshire, against the landlord, the Earl of Galloway, the arbiter who had been appointed by the Board of Agriculture proposed certain findings, and the landlord
Page: 522↓
asked the arbiter to state a case for the opinion of the Court. On 6th March 1919 the Sheriff-Substitute ( Watson) answered the question of law in the Case, and found the claimant entitled “to his expenses in this Court.” The landlord appealed to the Second Division of the Court of Session, and on 4th June their Lordships dismissed the appeal with expenses.

On the motion for approval of the Auditor's report the appellant objected thereto in so far as there had been allowed certain items all in connection with the preparation and submission of the Special Case to the Sheriff-ubstitute. The items allowed were ten in number and amounted to £6, 1s. 6d. The principal item was as follows—“Travelling to Castle Douglas, when application by landlord heard by arbiter and granted, and arranging details of Special Case. Occupied, including travelling, 6 hours, £3.”

Argued for the appellant—The expenses in question were not expenses of proceedings before the Sheriff, but were, strictly speaking, expenses incidental to the arbitration in the sense of the Agricultural Holdings (Scotland) Act 1908 (8 Edw. VII, cap. 64), Second Schedule, section 14— Scottish Union and National Insurance Company v. Surveyor of Taxes, 1889, 16 R. 624, 26 S.L.R. 489; M'Quater v. Ferguson, 1911 S.C. 640, 48 S.L.R. 560. Appellant's note of objections should accordingly be sustained.

Argued for the respondent—The expenses in question were not expenses “of and incidental to the arbitration and award” in the sense of the Agricultural Holdings (Scotland) Actl908, but were really expenses of and incidental to the Special Case, and as such fell within the words “expenses in this Court” in the Sheriff's interlocutor. The Court had inherent power to decide questions of expenses in such cases— MacIntyre v. Board of Agriculture, 1916 S.C. 983, 53 S.L.R. 316. In stated cases under the Workmen's Compensation Acts expenses in connection with the adjustment of the case had been allowed— M'Govern v. Cooper & Company, 1901, 4 F. 249, 39 S.L.R. 164; Maclaren on Expenses, p. 300; C.A.S. L. XIII, 17. On the appellant's argument the cost of framing a petition or drawing a summons would not be expenses in a case.

Judgment:

Lord Justice-Clerk—The question in this case is, what is the meaning of the words in the Sheriff-Substitute's interlocutor of 6th March, “expenses in this Court,” and whether the tenant's expenses in the Sheriff Court included expenses which were incurred in preparing and submitting the case to the Sheriff?

I think these expenses, if they come into the proceedings at all, are expenses which fall within section 14 of the Second Schedule of the Act of 1908, as being expenses “of and incidental to the arbitration and award” which are in the discretion of the arbiter. The Stated Case is put forward in terms of the statute, as can be done at any stage of the proceedings—in this case at the stage where the arbiter has gone so far as to issue i proposed findings, when the parties raised a question of law which would affect materially the ultimate award to follow upon these proposed findings. Accordingly I it seems to me that—to use the Sheriff-Substitute's language—“they are not expenses in this Court.” What the arbiter may do with them I do not know. I think they do not fall within these words, and accordingly, in my opinion, the objection should be sustained.

Lord Dundas—I am of the same opinion and for the same reason.

Lord Guthrie—I concur.

The Court sustained the objections.

Counsel:

Counsel for the Appellant— Fenton. Agents— Cowan & Stewart, W.S.

Counsel for the Respondent— Scott. Agents— Carmichael & Miller, W.S.
1919