Scottish Court of Session Decisions

This is one of several litigations involving the same parties. On 11 October 1996, the Lord Ordinary allowed a preliminary proof in this action. On 21 February 1997 a reclaiming motion against the interlocutor of the Lord Ordinary was refused. There was other incidental procedure in the Inner House, but none of the Inner House interlocutors contained any order as to expenses. The cause was remitted to the Lord Ordinary to proceed as accords - i.e. with the preliminary proof. About 3 March 1997 the first-named pursuer lodged a minute of abandonment in terms of Rule of Court 29.1(1)(b). The relevant motion stated:

The second pursuer added a signed note (on form 23.5) reading:

The Lord Ordinary (Osborne) then pronounced an interlocutor which inter alia found the pursuers "jointly and severally liable to the defenders in expenses to date and remits an account thereof to the Auditor of Court to tax and report...". The account included entries in respect of the procedure in the Inner House resulting from the reclaiming motion. Before the Auditor the pursuers took objection to certain entries in the accounts, but no objection was taken by any party on the ground that the charges relating to the Inner House procedure did not fall within the award of expenses contained in the interlocutor of the Lord Ordinary dated 5 March 1997. However, when following taxation by the Auditor of Court, the case came before Lord Bonomy in respect of the two Notes of Objection to the account of expenses, the Lord Ordinary himself raised the issue of whether the expenses awarded by the interlocutor of 5 March 1997 included the expenses incurred in the said Inner House procedure. He stated that it was not clear that a Lord Ordinary could pronounce an interlocutor awarding expenses incurred in the Inner House; but he also concluded that the Lord Ordinary on 5 March 1997 had no power to deal with the Inner House expenses. He intimated to parties that he was considering reporting the matter to the Inner House; and the male pursuer, on behalf of both pursuers, and counsel for the defenders agreed that this would be appropriate. It is not recorded that any party made any submissions to Lord Bonomy on the matter and his Lordship has not explained what his own reasoning was. He then reported the matter to the Inner House with a QUESTION couched in the following terms:

When the matter came before us on the Summar Roll on 2 February 1999, neither pursuer was present or represented. Counsel for the defenders seemed to have no submissions to make in relation to anything. We allowed an adjournment to enable him to consider his position, and he duly returned and invited the court to fix a fresh diet on a date to be fixed for parties to be heard on the matter raised by the Lord Ordinary and encapsulated in the QUESTION.

This has resulted in an extremely unsatisfactory position. We are asked by counsel for the defenders to find another day in order to allow parties to make submissions that they do not appear to have made to the Lord Ordinary. The pursuers, who presumably might wish to take advantage of the line of argument suggested by the Lord Ordinary, have not appeared to make any submission at all. Counsel for the defenders had indicated that he would argue the contrary, but he has not yet done so. So we have no argument at all in relation to the broad procedural Question posed by the Lord Ordinary.

In our view, it would not be appropriate in these circumstances to answer the Question. It raises issues upon which the court should have submissions from parties and a reasoned expression of opinion by the Lord Ordinary.

In our opinion, the matter can properly be dealt with in this way. The pursuers decided to abandon the action and to pay "full judicial expenses". In doing so, they clearly believed that that expression included all the expenses (on a party and party basis), including those incurred in the Inner House: that is evident from their behaviour in not raising the matter at any stage, whether before the Auditor or the Lord Ordinary. In these circumstances, it does not appear to us that the Lord Ordinary was faced with an invitation to do something that was fundamentally null and void. He was, in effect, being asked to give effect to what was for all practical purposes an agreement between all the parties as to what items fell properly to be included in the account of expenses. All he required to do was to deal with the points taken by the parties in the Notes of Objection. The issue as to the Inner House expenses was not one of them.

We shall therefore remit the case to the Lord Ordinary to deal with the Notes of Objections. He should do so on the basis that no party is submitting that the expression "full judicial expenses" is not apt to include the Inner House expenses which have not been made the subject of any interlocutor in the Inner House.