Scottish Court of Session Decisions

Lord President—On the proceedings in this case it is apparent that this gentleman did not confine himself to giving his consent and concurrence to his wife raising the action, but, passing beyond that, took an active personal part in promoting the litigation. That view is confirmed by the fact that although fully apprised of this motion to make him personally liable for expenses, he does not appear to oppose it. On these grounds I think the motion must be granted. As regards the general question, whether a husband by the fact of giving his consent and concurrence renders himself liable for the costs of an action raised by his wife, that must stand as it does at present on the authorities.

Lord Adam—I am of the same opinion. I think it is unnecessary to decide in the present case whether a husband giving a mere consent to his wife carrying on an action thereby makes himself personally liable for the expenses of that cause. I offer no opinion on that matter. I think it is not very clear on the authorities one way or the other. But I think it is sufficiently clear in this case that the husband went beyond merely giving his consent and concurrence to his wife's carrying on the action, and I therefore agree with your Lordship.

Lord M'Laren—It must be kept in view in considering these cases that in recent practice where the jus mariti is excluded and the wife is suing with reference to some proprietary claim, she is generally allowed to sue without the concurrence of her husband. Upon what ground that practice rests I am unable at present to say, but I know that this has been done both in special cases and in ordinary actions; a wife has sued or made a claim for her separate interests without the consent of her husband and without a curator being appointed. Most probably the practice has grown up, because since the passing of the Married Women's Property Act 1881 the consent is often a mere formality. But there are cases where the consent is really necessary, and I, following your Lordships, prefer not to say anything as to the degree of responsibility incurred by the husband who gives a pro forma consent. But I venture to think that a very moderate amount of interference by the husband in the conduct of his wife's case will be enough to make him the dominus litis; for in view of the relationship between the parties it may safely be assumed that there has been more intervention than is disclosed in the proceedings. At all events, if the husband acts at all, he can hardly interfere in his wife's affairs without making himself responsible. For the reasons more fully stated by your Lordship, I am of opinion that this claim for expenses should be allowed.

Lord Kinnear—I concur. I desire like your Lordships to express no opinion upon the question whether the mere concurrence of a husband in an action at his wife's instance will render him liable in expenses, nor do I give any upon the cognate question whether the abolition of the jus mariti, leaving the husband's curatorial power still standing, will enable the wife to bring an action without his concurrence. That we do not require to consider at this moment. But upon the two grounds stated by your Lordship in the chair—first, that we have here before us evidence that the husband was not a mere consenter, but an instigator and promoter of the action, and secondly, that having due notice of the motion made against him he has not come forward to maintain anything to the contrary so as to throw any doubt upon the inference to be drawn by us from the facts to which our attention has been called, I think we

Page: 496↓