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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Earl of Kintore v. Alex. Pirie & Sons, Ltd [1904] ScotLR 42_5 (21 October 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0005.html
Cite as: [1904] SLR 42_5, [1904] ScotLR 42_5

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SCOTTISH_SLR_Court_of_Session

Page: 5↓

Court of Session Inner House First Division.

Friday, October 21 1904.

[ Lord Kyllachy, Ordinary.

42 SLR 5

( Ante, December 18, 1002, 40 S.L.R. 210, 5 F. 818.)

Earl of Kintore

v.

Alex. Pirie & Sons, Limited.

Subject_1Process
Subject_2Reclaiming Note
Subject_3Competency
Subject_4Interlocutor Granting Expenses subject to some Modification Held to be Final — Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 53.
Facts:

An interlocutor was pronounced by a Lord Ordinary which taken along with previous interlocutors disposed of the whole merits of the cause, and which found one party “entitled to expenses subject to some modification,” the amount of the modification not being fixed.

Held that this was a final judgment in the Outer House within the meaning of section 53 of the Court of Session Act 1868.

Headnote:

The Court of Session Act 1868, section 53, enacts:—“Definition of Final Judgment in the Outer House—It shall be held that the whole cause has been decided in the Outer House, when an interlocutor has been pronounced by the Lord Ordinary, which either by itself, or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause; but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” …

In an action at the instance of the Earl of Kintore and Others, proprietors of the salmon fishings in the river Don, against Alex. Pirie & Sons, Limited, proprietors of mills on that river, to prevent the defenders abstracting water therefrom, the Lord Ordinary on 19th August 1904 pronounced an interlocutor which taken along with previous interlocutors disposed of the whole merits of the case. The interlocutor then proceeded:—“Finds the pursuers entitled to expenses, subject to some modification, and remits the account thereof when lodged to the Auditor to tax and report.”

The defenders reclaimed, their note being dated September 29th. Upon its appearing in the Single Bills, counsel for the pursuers objected to its competency, and argued—The Lord Ordinary's interlocutor gave expenses “subject to some modification,” and the amount or the basis of modification was not decided. It was therefore not a final judgment, and the leave to reclaim which was necessary had not been obtained— Baird v. Barton, June 22, 1882, 9 R. 970, 19 S.L.R. 731; Crellin's Trustee v. Muirhead's Judical Factor, October 21, 1893, 21 R. 21, 31 S.L.R. 8; Taylor's Trustees v. M'Gairgan, May 21, 1896, 23 R. 738, 33 S.L.R. 569; Burns v. Waddell & Son, January 14, 1897, 24 R. 325, 34 S.L.R. 264.

Argued for the defenders—The reclaiming-note was competent, as the interlocutor fell within the terms of the Court of Session Act 1868, section 53.

At advising—

 Judgment:

Lord President—By the interlocutor of 19th August 1904, taken along with the prior interlocutors, the whole subject-matter of the cause in so far as requiring to be dealt with has been disposed of, and the Lord Ordinary “ quoad ultra finds it unnecessary to dispose of the conclusions of the summons otherwise than as already disposed of: Therefore dismisses the same; and decerns: Finds the pursuers entitled to expenses subject to some modification, and remits the account thereof when lodged to the Auditor to tax and report.” It appears to me that this interlocutor satisfies the definition of a final judgment in the Outer House given in section 53 of the Court of Session Act 1868.

It was, however, maintained that the reclaiming-note is incompetent, because, as I understood, the finding of expenses in favour of the pursuers was “subject to some modification” which is not specified, the contention being that a reclaiming-note is incompetent until the amount of the modification has been determined. It appears to me, however, that when the whole subject-matter of the cause has been disposed of, and a finding of expenses such as occurs in the interlocutor of 19th August 1904 has been made, it is not necessary in order to warrant a reclaiming-note that the amount of the expenses shall have been ascertained or that the amount of the modification shall have been determined.

I therefore think that the objection to the competency of the reclaiming-note should be repelled.

Lord Adam—I concur. I think the interlocutor in question falls under section 53 of the Act. That section declares that “It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary which, either by itself or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause.” Then it goes on to say, “It shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” Now the whole subject-matter of the cause has been decided, and expenses have been found due. They are found due subject to modification, but the saving clause makes it quite clear that if expenses have been decerned for that is none the less a final interlocutor, an interlocutor disposing of the whole subject, and subject to review, although the amount of the modification or the amount of expenses as taxed has not been fixed. I agree with

Page: 6↓

your Lordship that it is quite clear that the interlocutor in question is reclaimable as a final interlocutor.

Lord Kinnear—I quite agree. The objection is that we are prevented from holding that this interlocutor, which would otherwise have been final, is a final interlocutor in the sense of the statute, because although expenses have been found due they have not been modified. They have been found due subject to modification, and the modification has not been made. But then the statute says in so many words that it shall not prevent a cause being held as finally decided that expenses if found due have not been taxed, modified, or decerned for. It appears to me that that directly and in terms meets the objection. I have no difficulty in holding with your Lordships that the reclaiming-note is competent. I cannot agree with the statement made at the bar that there is something ambiguous in the use of the term “modified.” That appears to me always to mean one and the same thing. It means the exact ascertainment of the precise sum that is to be paid. If the Lord Ordinary thinks that it is necessary that before expenses are paid some further deduction should he made from what may have been marie in taxation, then he makes that deduction before the expenses are finally decerned for. The words have only one meaning.

Lord M'Laren was absent.

The Court, repelled the objection and sent the case to the roll.

 Counsel:

Counsel for the Pursuers and Respondents— Campbell, K.C.— P.Balfour. Agents— Alexander Morison & Company, W.S.

Counsel for the Defenders and Reclaimers— Clyde, K.C.— Nicolson. Agents— Morton, Smart, Macdonald, & Prosser, W.S.

 1904

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