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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Rodger v. Weir and Another [1917] ScotLR 254 (08 February 1917) URL: http://www.bailii.org/scot/cases/ScotCS/1917/54SLR0254.html Cite as: [1917] SLR 254, [1917] ScotLR 254 |
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Page: 254↓
[Sheriff Court at Lanark.
An action of affiliation and aliment was brought against a minor. His father was called as his curator-in-law. Prior to the raising of the action the father wrote to the pursuer stating that he would provide funds for his son's defence, and repudiating the pursuer's statement that his son was the father of her child. The father took an active part in the litigation. The Sheriff-ubstitute decided in favour of the pursuer, and on appeal the Sheriff adhered. On appeal the First Division adhered. Held ( diss. Lord Johnston) that the father having taken an active part in the litigation, and not merely having concurred in the defence, he was liable jointly and severally with the defender in the whole expenses of the case. Held ( per Lord Johnston) that the father was entitled to defend the action down to the date of the Sheriff-Substitute's interlocutor, whereby the claim was constituted against the defender, but was liable for the expenses incurred since that date. Authorities examined per Lord Skerrington.
Jeanie Rodger, pursuer, brought an action of affiliation and aliment against Walter Somerville Weir, minor son of William Weir, Carluke, defender, and the said William Weir as his curator-in-law.
The facts of the case were—On 2nd January 1915 the pursuer gave birth to an illegitimate child. Thereafter she wrote to the defender's father intimating that his son was the father of her child. The reply was as follows:—“Hill of Orchard, Carluke, 30 th October 1914.—Miss Jane
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Rodger, Low Braidwood—I am sorry to have to write you, but I have your letter of which you ought to be ashamed. Nevertheless I will keep it, as it may be a swift witness against you in future; beside I am told you have been using threats, and I here warn you not to come near the Hill for the purpose of giving trouble in any way. In all the names that you give I notice that you have omitted one very important name, and one that must have been before your mind when writing about being watched in Crossford, I mean the person who waylaid Walter, and tried to get him to promise to marry you, and used threats to compel him to do so. If it was not to cover his own and your guilt why did he need to act as he did, and then you also approached Walter presumably making inquiry about work, but purposely that you might get accompanying him out the road, and try and involve him in this mess. Your plans may have been well laid, but it is a most diabolical plot which will be exposed if need be. W. Weir.” The pursuer again wrote to him, and received the following reply:—“Hill of Orchard, Carluke, 11 th January 1915.—Miss Jane Rodger—I am exceeding reluctant to write you, and I do so because I consider myself as yet the guardian of Walter; beside you cannot consider it an undue interference on my part, as you have already written to me twice in connection with this matter, and from all that I can learn you seem to blame Walter for a thing of which he is not guilty, and I think it right to direct your attention to the following:—At one time you gave the month of November as the time that the child was to be born, but the time of the birth being 2nd January coincides with the time when you was walking out with a young man from Crossford, besides you was frequently seen in the company of the person you now stay with, and I am told that you was seen in the company of a married man also; whereas I understand Walter never was in your company at this time. Seeing that I believe these things you cannot think it wrong of me to assist him all I can to save him from this stigma of being the father of your child, and if you take it to law I am prepared to furnish him with means to enable him to take it to the highest court in the land if need be, as I believe it to be a fabricated plot.—Yours truly, W. Weir. N. B.—Perhaps the powder you took has upset your calculations, at any rate it don't seem always reliable.”
The first deliverance in the action was on 22nd January 1915. On 5th June 1915 the pursuer lodged the following minute:—“The pursuer respectfully moves the Court, in the event of decree being pronounced in her favour and for reasons appearing in the process and to be stated at the bar, that the defender and his curator should be found liable in expenses jointly and severally.”
On 12th June 1915 the Sheriff-Substitute ( Scott Moncrieff) found the pursuer had given birth to an illegitimate female child, and that the defender was the father thereof, and further found the defender and his curator William Weir jointly and severally liable in expenses.
Note.—“[ After dealing with the merits of the case]—As to expenses I think the position which the defender's father takes up in his letter to the pursuer warrants me in finding him liable in expenses, as I have been asked to do by minute lodged by the pursuer.”
The defender appealed to the Sheriff ( Millar), who on 29th October 1915 adhered to the Sheriff-Substitute's interlocutor, and found the appellant liable in the expenses of the appeal.
Note.—“[ After dealing with the merits of the appeal]—The question of expenses is a matter for the discretion of the Court, and I have had some difficulty in finding the father liable in expenses. The mere fact that he was called as curator and consented to the defences in that capacity is not enough to make him liable; but then there is his letter, which is produced, where he intimates his intention of supporting his son and of carrying the case to the highest court. He appeared as a witness, and I think there is evidence that he did take an active part in the proceedings for the defence. Accordingly I am not prepared to differ from the learned Sheriff-Substitute on this point.”
The defender appealed, and argued, inter alia—The Sheriffs were wrong in finding the defender's curator-at-law liable in expenses jointly and severally with him. The mere supplying of funds to fight a litigation would not make the person supplying the funds liable in expenses if the decision went against the person so assisted— Fraser v. Malloch, 1896, 23 R. 619, per Lord Kyllachy (Ordinary) at p. 625, 33 S.L.R. 594. The defender's father could only be made liable on the ground that he was the dominus litis. To make him dominus litis it must be shown that he was the real defender, while his son acted merely as his agent— Fraser v. Malloch ( cit.)—or that he had the entire interest in the defence— M'Cuaig v. M'Cuaig, 1909 SC 355, per Lord President Dunedin at p. 357, 46 S.L.R. 287. But here the true interest was in the son and not in his father. Fraser v. Cameron, 1892, 19 R. 564, 29 S.L.R. 446, was distinguished, for the only question was as to the competency of the Sheriff awarding expenses against a guardian; no question of the proper exercise of his discretion was raised. Cases relating to the liability of husbands as curators of their wives were not in point, but even if they were the husband was only liable in so far as his conduct of the case could be shown to be improper and vexatious— Baillie v. Chalmers, 1791, 3 Pat. 213. Here all the father had done was to promise to finance his son's defence. Further, the case was distinguished from cases in which the guardian was a pursuer, for in them he elected to sue. Here he was a defender brought into the litigation on the pursuer's calling. In any event he was entitled to defend the case up to the date of the decision of the Sheriff-Substitute, and should not be found liable in expenses prior to that date— Herriot v. Jacobsen, 1909 S.C. 1228, 46 S.L.R. 998.
Argued for the pursuer—The mere
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concurrence of the curator in a defence would not have rendered him liable in expenses, but his conduct prior to the action as shown by his letters, and the part he had taken in it, showed that he was the real opponent of the pursuer. If so the Sheriffs could find him liable in expenses, and in the exercise of their discretion had done so. There was nothing in the case to show that that exercise of their discretion should be disturbed. In any event the defender's father should be found liable jointly and severally with him in the expenses of the appeal— Maxwell v. Young, 1901, 3 F. 638, 38 S.L.R. 443; Wilkinson v. Kinneil Cannel and Coking Coal Company, 1897, 24 R. 1001, 34 S.L.R. 533. The same principles applied here as in the cases where a husband acted as curator for his wife— Macgown v. Cramb, 1898, 25 R. 634, 35 S.L.R. 494; Picken v. Caledonian Railway Company, 1901, 4 F. 39, 39 S.L.R. 31. At advising—
There is something to be said for the view that a guardian who litigates on behalf of a pupil ought not to be found personally liable in expenses unless he has exceeded his duty or otherwise misconducted himself. He is in a position of difficulty because he may make himself personally liable to his ward if he refuses or neglects to institute or defend an action. This view derives support from the opinion of Lord Fraser in his work on Parent and Child (3rd ed., p. 364) and the dictum of the Judges in Gall v. Thomson, 1840, 2 D. 1234. But these authorities do not seem to me to be safe guides so far as regards modern practice. In the leading case on this subject, White v. Steel, 1894, 21 R. 649, 31 S.L.R. 542, a father who sued an action as tutor and administrator for his pupil son was found personally liable in expenses, not in respect of any specialty, but upon the simple and general ground that by instituting an action which was unsuccessful he had caused expense to the defender of which the latter was equitably entitled to be relieved. Though it so happened that the father and administrator-in-law in that case was the pursuer and not the defender in the action, the reasoning of the judges would have been equally applicable if he had been the defender and had caused expense to a pursuer who was seeking to vindicate a claim which proved to be well founded. The dictum of Lord Jeffrey, quoted with approval by the Lord President (Robertson) in White's case ( cit.), referred (as its language implies) to the case of a defender who was found liable in expenses because he litigated unsuccessfully though in good faith. So far as regards the interests of the ward it may often be more necessary for the guardian to institute an action than to oppose the granting of a decree in absence. Accordingly in the case of the guardian of a pupil it does not seem to me to be of crucial importance as regards his personal liability for judicial expenses to inquire whether he was the pursuer or the defender in the action. In either case he is if unsuccessful prima facie liable as the person who had the control of the litigation and who caused expense to the successful litigant.
The case of a minor pubes who sues or is sued with the consent and concurrence of his father as administrator-in-law or of a stranger curator is different, in respect that, at least in legal theory, the minor is vested with the management of his affairs, while the guardian merely advises and concurs. In the ordinary case an administrator-in-law or curator would not be held personally liable in expenses merely because he authorised an action or a defence in name and on behalf of a ward who was a minor pubes. There is, however, authority for the proposition that if a guardian goes beyond this and takes an active part in the litigation he
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In the paucity of decisions as to the liability for expenses of the curator to a minor pubes one may refer to the cases where husbands have been made personally liable for the expenses of unsuccessful actions at the instance of their wives. In some cases the husband has been held liable partly on the ground of misconduct, e.g., because in the opinion of the Court the action was one which he must have known to be unfounded and which he ought not to have authorised, and partly on the ground that he took an active part in the litigation— Maxwell v. Young, 1901, 3 F. 638, 38 S.L.R. 443; Picken v. Caledonian Railway Company, 1901, 4 F. 39, 39 S.L.R. 31. The case of Macgown v. Cramb, 1898, 25 R. 634, 35 S.L.R. 494, was decided primarily on the latter ground. In Maxwell's case ( cit.) Lord M'Laren referred to the analogy of “a father who sues or defends in the character of tutor or curator for his child,” and cited the case of White ( cit.). In Picken's case ( cit.) Lord Kinnear said that while the husband's concurrence in his wife's action does not of itself render him liable in expenses “the question comes to be whether in any particular case he has taken such an active part in the case as to make it proper that he should share in the expenses. That is a proper question for the judge who tries the case.” Applying this test, I am of opinion that Mr Weir's letter of 11th January 1915, founded on by the Sheriff-Substitute, is in the absence of contrary proof sufficient evidence that he took an exceptionally active part in the conduct of the litigation. I am therefore of opinion that the award of expenses against Mr Weir was in accordance with the authorities which I have cited and was proper in the circumstances. The effect of Mr Weir's conduct in interfering with the witnesses after they had given evidence in the Sheriff Court will fall to be considered in disposing of the expenses of this appeal.
I desire to say that I can by no means accept the conclusions which Lord Skerrington has come to, and I cannot allow his judgment to pass, as it might otherwise be assumed to be, as the judgment of the Court on the general question of the personal liability of a father when he gives his concurrence as administrator-at-law to his child's defence.
Some distinction may be drawn between the function of the guardian-at-law where his ward is a pupil and where he is a minor. But into this, as the whole question has not been fully and considerately before the Court, I do not enter. But regarded as a general question I consider that there is a difference between the position of a guardian-at-law when he chooses to come into Court on behalf of or along with his ward as pursuer and when he is brought into Court in the same capacity as defender. All the authorities as far as I know—and I put it pointedly to the counsel in the case, who confirmed me—are cases in which the ward was in the position of pursuer, and so far as appears there is no case in which the question has hitherto been considered where the guardian found himself in the position of curator-at-law to a defender. I think, as I have said, that that makes a very decided difference in the situation; and the conclusion which I had come to—and which I understood had the support of some of my brethren—was that where a guardian-at-law is brought in this way into Court with his ward as defender he is entitled, without incurring personal liability, to enter appearance and defend the action so far as the action is required for the constitution of a claim. Once the claim is constituted against his ward, then I think if he continues the litigation beyond the court of first instance he undertakes a different responsibility.
Accordingly the judgment which I would have given here, as I did not think the letters to which I have referred were so compromising as they are represented to be, is that the father as curator should not be held personally liable for the expenses in the Sheriff Court down to the date of the Sheriff-Substitute's interlocutor, but that he should be held personally responsible for the expenses from that date onwards; and
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The Court dismissed the appeal, and found the defender and his father as his curator jointly and severally liable to the pursuer in the whole expenses of the case.
Counsel for the Pursuer (Respondent)— Morton— R. Macgregor Mitchell. Agent— R. J. Calver, S.S.C.
Counsel for the Defenders (Appellants)— Macphail, K.C.— Dykes. Agent— James Scott, S.S.C.