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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Birrel v. Beveridge. (Ante, p. 154.) [1867] ScotLR 5_252 (14 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0252.html Cite as: [1867] SLR 5_252, [1867] ScotLR 5_252 |
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Page: 252↓
(Ante, p. 154.)
Circumstances in which a defender found entitled to expenses of litigating objections to pursuer's title, the objection being reserved, but afterwards sustained. Circumstances in which a defender who was found entitled to expenses of process, was held entitled to expense of copies of the proof taken before Lord Ordinary under the Evidence Act 1866. Observed, that as a rule the expenses of such copies could not be allowed, because the discussion should follow immediately after the proof, but in exceptionally difficult cases an adjournment after the proof, and before the debate, might take place, and copies of the proof be allowed.
The Court having, by their judgment of 10th January, found the pursuer, Birrell, liable to the defender in expenses, and the defenders' account of expenses having been lodged and taxed, the auditor reserved for the consideration of the Court the question of the pursuer's liability for—(1) the expenses incurred by the defender in closing a record on the preliminary defence (afterwards opened up of consent of parties), debate thereon, and attempted adjustment of issues, being the expenses from 8th December 1865 to 28th February 1866, amounting, as taxed, to the sum of £41, 16s. 9d.; and (2) the expense of copies of the proof taken before the Lord Ordinary for counsel, to enable them to address him on the evidence, charged under date 30th November 1866, and amounting to the sum of £10, 5s. 4d.
“ Note.—(1) It was maintained for the pursuer at the audit that the expenses of closing a record on the preliminary defences, &c., above reserved, should be disallowed as unsuccessful litigation. The auditor was inclined to disallow these expenses, on the ground that they were occasioned by the defender's refusal to satisfy the production, and that the course ultimately adopted of satisfying the production, under reservation of his pleas, ought to have been proposed at the outset. On the other hand, the defender's preliminary pleas have never been formally repelled, and his defences have been sustained in general terms. In these circumstances the auditor has thought it best to reserve the questions of liability for these expenses for the determination of the Court.
(2) The pecuniary amount involved in the other reserved point is not great, but the principle of the charge is of some importance, and the auditor takes this opportunity of requesting the direction of the Court in regard to it. Proofs under the Evidence Act of 1866 are now of frequent occurrence, and the policy of that Act as set forth in its preamble being the prevention of ‘unnecessary expense’ and delay, it seems to the auditor to be incumbent on him to keep carefully in view the direction of the Act of Sederunt of 19th December 1835, that (in taxing the expenses of a process) only such expenses shall be allowed as are absolutely necessary for conducting it in a proper manner, and with due regard to economy.’ In many cases under the Evidence Act the discussion on the proof is taken immediately on its conclusion, without adjournment, and then, as in a jury trial, there is no room for making copies of the evidence. Sometimes, however, either from the lateness of the hour when the proof concludes, or other causes, an adjournment takes place; and the auditor finds that when an adjournment takes place, even for a very few days, there is a tendency to make copies of the proof for counsel, to facilitate the discusson upon it. This leads to considerable expense, and the auditor has hitherto adopted the rule of disallowing such copies as expenses of process. It seems to him that this is just one of the expenses which, in the general case, may be saved by leading the evidence, not before a commissioner, but before the judge himself. At the same time, the rapidity with which proof under the Evidence Act is taken down renders it more difficult for the counsel to take full notes, and there may be exceptional cases where
Page: 253↓
more than a general reference to the evidence may be necessary. It is for the Court to say whether the present is to be regarded as an exceptional case or not. Parties are not agreed that the argument was delayed in order that copies of the proof might be furnished to counsel; but it is admitted that copies were made for the counsel on both sides. If the Court shall be of opinion that the auditor is right in disallowing copies of proofs under the Evidence Act as a rule, he would respectfully suggest, that when an exception is to be made, the making of copies should be sanctioned by a marking on the interlocutor sheet to that effect at the debate.
The sums of £41, 16s. 9d. and £10, 5s. 4d., are included in the sum of £361, 8s. 1d. reported as the taxed amount of expenses.”
Hall for pursuers.
Scott for defenders.
Lord President.—As regards the first point reserved by the auditor, viz., the charge of £41, as being the expense of the case from 8th December 1865 to 21st February 1866, the question comes to be simply this, whether in that part of the litigation the defender was unsuccessful. Now it seems to me impossible to hold that. The object of that part of the litigation was to urge objections to the pursuer's title. That question was reserved, but it came in the end to be disposed of in the defender's favour. The result was to find that the pursuer had not a title, the missives of 10th March having been found insufficient, because the pursuer had failed to prove their existence anterior to the 18th May. The defender was obliged to state that preliminary defence, otherwise he would have been cut out of it entirely, and therefore he was right in lodging these pleas, and right in urging them. It was never proposed until the case came here on a report on issues, to have that point reserved. We must assume that if that had been proposed the defender would have assented, for when it was proposed he offered no objection. On the other hand, it is open to observation that the pursuer was very far wrong in that part of the case, for he proposed a most absurd issue, adapted to try, not the question of title, but the whole merits of the case, on which no record had been made up. I think, therefore, that the defender is entitled to that part of the expense.
“As to the second question, it relates to a small amount of money, but in one point it might be a very important question, if the allowing of this expense was to be taken as laying down the rule, that the proper course under the Act is to adjourn the case after the evidence is led, and to have copies of the evidence made in writing or print for counsel to discuss the question. That is against the spirit of the Act, for the Act means that the whole proceedings shall go on just as in a jury-trial It is a jury trial to all intents and purposes without a jury, and therefore it is the duty of counsel to address the Judge forthwith, as in the case of a proper jury trial to address the jury. But it would not do to lay down an inflexible rule, which would prevent the Lord Ordinary from taking a different course in certain special cases. For if a case is so complex, or the proof is of such a nature that it would be difficult for the Lord Ordinary or for counsel to digest it on the spot, it may be for the interest of the parties, and conducive to the ends of justice, that an adjournment should take place. And this is just a case of that description. We all know from painful experience that this is a very difficult case to digest, and cost an unusual amount of trouble. Therefore, on the whole matter, I think it would not be fair to disallow the charge in the present case. It may be justified here, but only in respect of the very special nature of the case.
Solicitors: Agents for Pursuer— Crawford & Guthrie, S.S.C.
Agents for Defenders, Watt & Marwick, S.S.C.
