Scottish Court of Session Decisions

Lord President—The practice of granting decrees for interim expenses in the early stage of consistorial actions—where the wife is pursuer and has no separate estate—rests on the necessity for instituting and completing without delay an inquiry into the facts on which the action is brought. Lord Ardmillan in Tibbets v. Tibbets ( (1862) 24 D. 599) described their object as being “so to assist the pursuer to proceed in the proof as to promote the ends of justice whatever may be the result of the inquiry.” It follows from the character of the object which such decrees are intended to serve that their amount is in practice restricted to bare necessaries. Generally speaking they are based on a rough estimate of the outlays necessary to be incurred in bringing the pursuer's case to proof without taking into account liability for professional fees. But it is not the practice to limit or qualify the decrees otherwise than in amount, and in the absence of express limitation or qualification they are—to the extent of the sums contained in them—just decrees to account of the pursuer's expenses of process generally. It is true that a pursuer who recovers under such a decree will only be acting prudently in her own interests if she restricts the use of the money to necessary outlays. In like manner the agent whom she employs, and in whose hands the money is placed or allowed to remain without special instructions, will best consult the interest of his client by conserving it for the same purpose. But this is not because the decree creates or implies any special appropriation of the money to necessary outlays, but because if the money were to be prematurely exhausted in defraying other kinds of expense connected with the conduct of the action it might be difficult to obtain a further decree on the ground that the first one had proved less than was really necessary to bring the case to proof. Suppose the action is brought to a conclusion while a balance of the amount awarded as interim expenses still remains in the agent's hands it is clear that the agent would be entitled to recoup the amount of his taxed professional fees out of that balance as far as it went. He would, indeed, be bound to impute it pro tanto to his account. While the litigation is still in progress the only restriction upon the particular expenses which the sum in the decree can be properly employed to meet is that arising from the practical considerations of prudence and expediency to which I have just referred.

In the present case the decree was for as much as £100, because it was expected that evidence would have to be taken abroad. It turned out that this evidence could be dispensed with, and so a considerable part of the anticipated outlay was saved. The decree was in the usual form and the pursuer gave no special instructions with regard to the disposal of the money which she allowed to remain in her agent's hands in the usual way. After the action had proceeded for some time, but before the stage of proof had been reached, the pursuer changed her agent. By that time the amount expended in necessary outlays was £48, 16s. 11d. The agent did not stand upon his lien, and gave up the papers to his successor. But he had his account taxed at once, the amount allowed him by the Auditor as fees (exclusive of outlays) being £116, 19s. 2d. To meet this the agent retained the balance of £51, 3s. 1d. remaining in his hands. But on the motion of the pursuer the Lord Ordinary pronounced an order upon him to hand over that balance to the new

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