Scottish Court of Session Decisions

This was an action raised in the Sheriff Court of Lanarkshire for infringement of a patent obtained by the pursuer for “improvements in looms for weaving ornamental fabrics.” The defence was laid on the grounds of—first, invalidity of patent by reason of prior user; second, no infringement. The Sheriff-Substitute ( Guthrie) found for the defenders on both grounds of defence. On appeal the Lords, on 22d June 1882, pronounced the following judgment:—“The Lords having heard counsel for parties on the appeal for the pursuer against the interlocutor of the Sheriff-Substitute of 14th January 1882, recal the interlocutor appealed against: Find that it has not been proved that the defenders infringed the pursuer's patent right: Therefore assoilzie the defenders from the conclusions of the action, and decern: Find the defenders entitled to expenses in the Inferior Court and this Court, subject to modification to the extent of one-third of the expenses of the proof, and remit to the Auditor to tax the expenses now found due, and to report.”

The total amount of expenses in the Sheriff Court was £603, 19s. 9d., of which the expenses of the proof amounted to £142, 19s. 14. The Auditor taxed from the total sum the amount of £424, 15s. 4d., and then deducted a sum of £47, 13s., as “modification of one-third of the expenses of the proof in the Sheriff Court; expense of proof as noted on margin of Sheriff Court account, £142, 19s. 1d.” This mode of taxation was based on the Act of Sederunt of 15th July 1876 (General Regulation 5) which provides —

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“That notwithstanding that a party shall be found entitled to expenses generally, yet if on the taxation of the account it shall appear that there is any particular part or branch of the litigation in which such party has proved unsuccessful, or that any part of the expense has been occasioned through his fault, he shall not be allowed the expense of such parts or branches of the proceedings.” The Auditor's mode of taxation was further based on the case of M'Elroy & Sons v. Tharsis Sulphur and Copper Co., June 28, 1879, 6 R. 1119.

The respondents objected to the Auditor's report on the ground that he had disallowed items of expense incurred in the proof in the Sheriff Court relative to their plea of invalidity of the patent by reason of prior user, as if they had failed on that plea, whereas they had been successful, or at least the case against them had not been made out. These items amounted to £85, 13s. 6d.

They argued—The Court in modifying the account of expenses of the proof in the Sheriff Court by one-third, intended that the account should be taxed as if the respondents had been successful on their plea of invalidity of patent by reason of prior user, and that thereafter one-third of the taxed amount of the expenses should be deducted. The Act of Sederunt did not apply, because the respondents were not found entitled to expenses “generally,” there being a modification made of one-third. The case of M'Elroy & Son v. Tharsis Sulphur and Copper Co. did not apply, because there the party found entitled to expenses had been only partially successful. Here the defenders had been wholly successful, though it happened that the Court had not considered it necessary for the ultimate decision of the case to give effect to one of their pleas.

At advising—