"In an early case (Edinburgh & Glasgow Railway Co v Arthur 1858 20D 677), it was held that where several defenders have the same ground of defence, but have not combined in a joint defence, the unsuccessful pursuer will only be found liable in the expense of a single defence and of a consultation between the defenders at the beginning of the litigation. This rule was somewhat modified in a later case (Stott v Fender & Crombie 1878 16 SLR 5), where in somewhat similar circumstances the court held that two successful defenders were only entitled to one account of expenses, with a modified sum added as watching expenses for the second defender. This latter method of dealing with the expenses of separate defenders was again modified (Anderson v McCracken Bros 1900 2F 780), and it was laid down as a general rule, and the practice now is, that where a pursuer convenes more than one defender and fails in his action, with a liability for expenses, each defender is entitle to his expenses down to the closing of the record; but if it appears from the closed record that the interest of the defenders is identical, the pursuer is only liable in full expenses for a single defence, with watching fees for the other defenders."

In the last case mentioned in the above passage, Anderson v McCracken Bros, the Lord Justice Clerk stated at pages 791-2:

"In this case the defenders have been successful. The question now to be decided is whether the two sets of defenders are to be allowed their full expenses as for a separate appearance for each of them. The practice is, I think, well established that in such a case as this the unsuccessful party is not to be called upon to pay two sets of expenses, and that he should only be made liable in one, he being also liable to a watching fee to the second party. In the discussion this was admitted to be the practice. Of course if the two defenders choose they may appear separately at proof and debate. But the question whether they can be allowed to do so, so as to double the expenses which their opponent may be called on to pay on non-success, is a different matter, and the practice is against it. I am in favour of granting a finding of expenses in this case in accordance with the practice as applicable to the expenses incurred since the closing of the record."

At pages 793-4 Lord Trayner stated as follows:

"I understand the rule and practice of the Court in giving expenses against an unsuccessful pursuer who has convened more than one defender to be this - each defender is entitled to lodge separate defences under the assistance and advice of his own agent and counsel. When the record has been closed, and it appears that the defenders have not any different interest, and that as regards both the same question is raised, then the Court regards it as the reasonable course that the defenders should combine, and by arrangement be represented by the same agent and counsel. If they do not do so the pursuer is only found liable to the defenders in the expenses as for one appearance. Full expenses are allowed as for one defender, and only a watching fee is allowed as for the other, the Court regarding it in the circumstances as unnecessary that there should be separate agents and counsel to represent what is practically one interest, and refusing to lay the burden of such unnecessary expense upon the pursuer. The correctness of this view of the practice of the Court was admitted by all the counsel at the bar. I do not enter upon the question whether the practice is a good practice. It is enough for the present case to say that it is the practice, and that one Division of the Court should not at its own hand alter a recognised and established practice."