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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hendry v. Grant & Jameson [1867] ScotLR 5_135 (21 December 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0135.html Cite as: [1867] ScotLR 5_135, [1867] SLR 5_135 |
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Page: 135↓
After a proof was led before the Lord Ordinary, the defenders, who had led about one-half of the proof, intimated that they would bear no part of the expense of printing. The pursuer accordingly printed the whole, and called on the defenders to relieve him of one-half, which they refused to do. Held, on a report from the Lord Ordinary, that each party having led an equal amount of proof the defenders were liable in one-half.
In this case, which is an action of damages at the instance of a grieve against Messrs Grant & Jameson, writers, Elgin, on the ground partly of failure to obey instructions, and partly for want of professional skill in the management of a cause which he had employed the defenders to raise, issues were reported to the Court, and a long discussion followed. The defenders, before judgment was pronounced, offered to take a proof before the Lord Ordinary under the Evidence Act, to which the pursuer assented. The proof was accordingly led. Upon its conclusion the defenders' agents intimated to the pursuer that they would share no part of printing the proof. The pursuer accordingly printed the whole, and then called upon the defenders to relieve him of one-half, which they refused to do. Each party led an almost equal amount of proof. The Lord Ordinary was then moved for an order on the defenders to that effect. His Lordship reported the point.
W. A. Brown, for the pursuer, argued that the defenders should be ordained to pay one-half of the expense of printing the proof. It was necessary that the proof should be printed for the Inner-House, and the defenders having intimated that they would not print at all, the pursuer was entitled to print the whole, and he had an equitable claim to be relieved by the defenders of what he had expended for them.
Lancaster, for the defenders, answered:—It is not expedient that any such order should be pronounced as that which the pursuer seeks. The Lord Ordinary has reported the proof, and the case will be very soon disposed of by final judgment. It will then be seen who has to defray the whole expense of the proof, for that will fall on the unsuccessful party. The pursuer is a poor man, and in the event of the case being decided against him the defenders might fail to recover what they had disbursed for him, and that would be a hardship. Further, the nature of the action is one which justifies the defenders in resisting this motion. It is an action of damages against them, grounded on the allegation of want of professional skill. The case could not be brought to the Inner-House unless the proof was printed, but the defenders would provide no facilities for that being done.
The Court, without laying down any general rule for practice, and proceeding on the fact that there was an equal amount of proof on each side, ordained the defenders to divide the expense of the proof, and found them liable in the expenses of the discussion.
Solicitors: Agent for Pursuer— James Bell, S.S.C.
Agents for Defenders— H. & A. Inglis, W.S.
