Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Slorach v. William Kerr & Co. [1921] ScotLR 293 (06 January 1921)
URL: http://www.bailii.org/scot/cases/ScotCS/1921/58SLR0293.html
Cite as: [1921] SLR 293, [1921] ScotLR 293

[New search] [Printable PDF version] [Help]

SCOTTISH_SLR_Court_of_Session

Page: 293↓

Court of Session Inner House First Division.

Thursday, January 6. 1921.

[ Lord Anderson, Ordinary.

58 SLR 293

Slorach

v.

William Kerr & Company.

Subject_1Expenses
Subject_2Process
Subject_3Separate Actions by Different Pursuers against Same Defenders for Same Negligent Act Leading to the Injury and Death of One Person.
Facts:

Apart from specialties requiring separate actions to be raised, it is not legitimate to throw on an unsuccessful defender the expense of more than one action in respect of the same negligent act leading to the injury and death of one person.

Observed per the Lord President—“So far as this case is concerned I think we may allow the expenses of the two summonses, but it must be understood that if this practice should become general it may be necessary to lay down some general rule which will bring it to an end, and if necessary penalise it.”

Headnote:

Mrs Frances Mary George or Slorach, Deveron House, Dumbarton, as an individual and as tutrix and administratrix-inlaw of her four pupil children, brought an action against Messrs William Kerr & Company, machinery haulage merchants, Glasgow, concluding for damages in respect of the death of her husband, which she alleged to be due to the negligence of the defenders. Charles Slorach and others, the five children of the deceased, who were above the age of pupilarity, with consent of the said Mrs Slorach, brought a separate action against the same defenders, concluding for damages for the death of their father, which they averred was due to the same negligent act. Separate issues having been adjusted, the parties agreed that the two actions should be tried by one jury and on the same evidence, and that the productions lodged in the one action should be held as productions lodged in the other. The jury having awarded damages to the pursuers in each action, the defenders obtained rules upon the pursuers to show cause why a new trial should not be granted.

The Court having discharged the rules, the pursuers moved for expenses in each action up to the date of the trial, and referred to Karrman v. Crosbie, 1898, 25 R. 931, 35 S.L.R. 725.

Judgment:

Lord President—The question raised on this motion is whether the expenses of the two summonses which were raised (1) on behalf of the mother for herself and as tutrix for her pupil children, and (2) by the children who were above pupilarity, should be allowed. The question, of course, relates only to that part of the proceedings which was anterior to the trial.

Now this matter was the subject of a dictum by Lord Watson in the case of Darling v. William Gray & Sons ( 1892, 19 R. (H.L.) 31, 29 S.L.R. 910). He said—“There is not a single instance in which the Court has allowed two actions to be brought in respect of the same negligent act leading to the injury and death of one person. Even in cases where the right of relatives to sue has been recognised they must bring one suit, and one only, in which the damages due to them respectively might be assessed.” I do not understand that dictum to mean that it is incompetent to present separate summonses, but—apart from specialties requiring separate actions to be raised—I understand it to mean that it is not legitimate to throw on the unsuccessful defender the expense of more than one action. I cannot say that in the present case I understand why the course was adopted of serving two summonses and making up two records. It rather appears to me to have been a wholly gratuitous and unnecessary expense, and it suggests that the dictum of Lord Watson requires to be brought to the notice of the profession.

So far as this case is concerned I think we may allow the expenses of the two summonses, but it must be understood that if this practice should become general it may be necessary to lay down some general rule which will bring it to an end and if necessary penalise it.

Lord Mackenzie—I am of the same opinion.

Lord Skerrington—I concur.

Lord Cullen—I am of the same opinion.

The Court discharged the rules, of consent applied the verdicts, and in respect thereof decerned against the defenders for payment to each of the pursuers of the sum found due to them, and found the pursuers entitled to expenses.

Counsel:

Counsel for the Pursuers— Watt, K.C.— Aitchison. Agents— J. Miller Thomson & Company, W.S.

Counsel for the Defenders— Sandeman, K.C.— J. A. Christie. Agents— Balfour & Manson, S.S.C.
1921