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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Speins v. Caledonian Railway Co. [1920] ScotLR 573 (09 July 1920)
URL: http://www.bailii.org/scot/cases/ScotCS/1920/58SLR0573.html
Cite as: [1920] ScotLR 573, [1920] SLR 573
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SCOTTISH_SLR_Court_of_Session
Page: 573↓
Court of Session Inner House First Division.
(Single Bills.)
v.
Facts:
On 1st March the evidence of a marine engineer, whose ship was due to sail “about the middle” of the month, but the date of whose actual departure was indefinite, was taken on commission for pursuer. At the trial on 22nd March the pursuer produced and examined the witness in question. Held that the expenses of the commission were not chargeable against the unsuccessful defenders.
In an action of damages for personal injuries at the instance of Mrs Margaret Speirs, Abbotsford Place, Glasgow, pursuer, against the Caledonian Railway Company, defenders, in which the jury had returned a verdict for the pursuer, a question arose upon the Auditor's report on the pursuer's account of expenses.
The trial took place on the 21st and 22nd of March 1921. An important witness for the pursuer whose evidence had been taken on commission on 1st March was able to attend at the trial and give evidence. The witness, a marine engineer, stated at the trial that his ship had been due to sail “about the middle” of March.
The Auditor having lodged his report the defenders objected to it in so far as he had allowed the expense of the commission and also the charge for the attendance of the same witness at the trial, and argued—The commission had been executed ob majorem cautelam. That was not sufficient to make the other party liable for the expense— Couper v. Cullen, 1874, 1 R. 1101, 11 S.L.R. 641, per Lord President Inglis. It had been executed when there was no real necessity. The witness was important but not essential. The rule had been to refuse such expenses— Napier v. Campbell, 1843, 5 D. 858; Maclaine v. Cooper, 1846, 8 D. 429; Napier v. Leith, 1860, 22 D. 1262. A relaxation of the rule had been permitted during the war but should not be continued.
Argued for the pursuer—There was no general rule. It was always a question of circumstances, and the Court would not interfere with the Auditor's discretion unless he were clearly wrong— Maclaine v. Cooper, supra; Couper v. Cullen, supra. The practice for at least the past six years had been to allow these expenses. The witness was necessary, being the only one independent of the parties who could speak to the facts. The ship was “billed” to sail a week after the commission was executed, and in these circumstances the pursuer was acting reasonably in having the evidence taken.
In the present instance the commission was applied for one month before the date of the trial, and was executed very shortly after it was applied for, at a time when, according to the information obtainable from the witness himself, there was not only no immediate prospect of his leaving the country for an absence which would outlast the date of the trial, but on the contrary the date of his actual departure was indefinite and might possibly not arrive (as indeed turned out to be the case) until after the date of the trial. In these circumstances it seems to me that while it may have been a proper precaution for the pursuer to apply for the commission when he did, so as to be able to put it in force without delay if circumstances should render that course necessary, he was not justified in executing it at a time when the necessity for that step was (to say the least of it) very doubtful, and then, notwithstanding that he produced and examined the witness at the trial, in seeking to charge the other side with the expense.
It may be that some laxity in this matter has recently prevailed owing to war conditions, but in sustaining the present objection, as I propose we should do, I am not departing in any way from the practice which prevailed in this matter before the war.
The Court sustained the objection.
Counsel for Pursuer— Mackay, K.C.— Gibson. Agents— Manson & Turner Macfarlane, W.S.
Counsel for Defenders— Graham Robertson. Agents— Hope, Todd, & Kirk, W.S.