Scottish Court of Session Decisions

Lord Justice-Clerk—In this matter it was stated for the individual defenders, apart from the company, that although they were unsuccessful, and failed entirely in their defence, they were nevertheless not to be found liable in expenses. It is clear that there is no ground for excusing from liability those parties who appeared to maintain their freedom from the consequences of the action. They had an interest in the action, and thought that it was a sufficient interest for them to try and put obstacles in the way of the pursuers, and they continued to do so throughout the whole litigation. It is plain that their interest is connected with the interest of the company, and they derive their title from it; but they said that they were not affected by the original negotiations by which the company acquired its right. Now, it is maintained that they are not responsible for these expenses. The interlocutor disposing of the action found that the pursuers were entitled to expenses, and I think the defenders have no ground to plead exemption. I might have been disposed to agree to some modification of the expenses, but I understand that that view does not meet with your Lordships' approbation. I see no ground for exemption.

Lord Young—I had not the advantage of hearing this case from the beginning, but I heard the whole argument at the end, in respect of which we set aside the feu-contract which was in question. The contract which was in question was not one made between the parties to the case, but between a Mr Watson, who was dead when the action was raised, and certain other parties, and it was in that contract that the error occurred. That contract had been transferred—that is to say, a conveyance in pursuance of the contract had been prepared of the whole property to the Feuing Company. The individual defenders here were not parties to the error, nor indeed to the contract at all.

The proceedings began by the Feuing Company raising an action against the late Mr Watson's trustees to have it declared that the trustees were bound to construct roads and streets over the whole property, amounting to 17 acres, as according to the contract he was bound to do. The error was in putting that obligation upon Mr Watson. The action was to enforce the contract according to its terms. A suggestion was made in the Outer House that the question could be better tried by an action of reduction, and the reduction was raised by Watson's trustees. The pursuers called in that action, besides the company, two of their feuars of infinitesimally small portions of the ground. Other two feuars of equally small portions subsequently sisted themselves as defenders by minute, but all they did was to appear by the same counsel and agent as the Feuing Company, to state that they concurred in all their pleas, and that there was no error to be corrected as against them. Watson's trustees succeeded in their action, and were therefore found entitled to their expenses, but they could not have got their decree, and would not have got their expenses, except by calling the company as defender. The Feuing Company must therefore have been the leading defender. Why the feuars came forward I do not know, and if they had caused a farthing of expense to the pursuers I would have found them liable in expenses. But admittedly they have not caused one farthing's expense to Watson's trustees. But, because they instructed an agent and counsel, we are asked to find these four individuals liable in four-fifths of the expenses. I cannot assent to the justice of that, or the law of it. There is a discretion in the Court as to expenses, and I think that it would be in the exercise of sound discretion, and of good sense, to give Watson's trustees decree for the whole expenses against the Feuing Company only, and against no one else, because the appearance of the other defenders has caused no additional expense.

Lord Craighill,—Watson's trustees succeeded in the litigation between themselves and the Feuing Company, and the other parties who appeared as defenders, and the consequence was that in the final interlocutor the pursuers were found entitled to their expenses. The right of Watson's trustees to decree for expenses is not disputed; the question that is in controversy is this, Are the pursuers entitled to a decree for expenses against the other defenders who appeared besides the Feuing Company, and who fought the same battle as the company? As the action was originally laid, the first defender was the Feuing Company, but there were also two individual feuars who were called in that character, and in the course of the litigation other individuals in the same character appeared also. As the record was originally made up, the defenders were the Feuing Company and two other individual feuars, but it was in the end made up with these defenders and two other feuars who had been sisted at their own request. The question to be settled is this only, Who were the antagonists of the pursuers? They were the company and the four sub-feuars; there was no distinction between the pleas of one defender or the others. All maintained that the ground of reduction alleged was erroneous. It is true, as Lord Young has said, that all the interest was in the company, but all were combined together, all stated one defence, and I think it was for these defenders to say, whether or not it was worth their while to come forward as defenders, or worth their while to take the place of the principal defender, and if they did so they must take the consequences. Moreover, they were put upon their guard here, because the form of the summons is that in any event there should be decree against the company with expenses; but as regards the individual defenders it is this, “and the other defenders in the event only of their appearing and

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