Scottish Court of Session Decisions

This was an action by the Caledonian Railway Company against John Chisholm, sack contractor, Perth, for payment of a sum alleged to be due for the carriage of the defender's sacks over the pursuers' lines of railway.

As the basis of their claim the pursuers lodged with the summons an account of the amounts alleged to be due. For this account they subsequently proposed to substitute another. This proposal was resisted by the defender, and after considerable discussion the Lord Ordinary ( M'Laren) by interlocutor of 30th October 1886 refused to allow the substitution.

Against this interlocutor the pursuers reclaimed, and on 10th December 1886 the First Division recalled the interlocutor of the Lord Ordinary, and allowed “the record to be amended by substituting the account, No. 34 of process, for the account lodged with the summons, and also by making the additions now proposed at the bar, reserving all questions of expenses.”

On 13th March 1888 the Lord Ordinary pronounced the following interlocutor:—“Finds that by the written contract between the pursuers and the defender, relating to the hire of the defender's sacks during the period of seven yearscommencing in 1874, the defender had an unqualified right of free carriage over the Caledonian Railway for all his sacks: Therefore assoilzies the defender from the conclusions of the action, and decerns: Finds the defender entitled to expenses,” &c.

The pursuers reclaimed, and on 8th February 1889 the First Division adhered to the interlocutor reclaimed against, refused the desire of the reclaiming-note, found the defender entitled to additional expenses, allowed an account thereof to be given in, and remitted the same to the Auditor to tax and report.

The Auditor taxed the defender's account at £1588, 8s. 4d., reserving for the determination of the Court the question of the liability of the pursuers for the Inner House expenses claimed by the defender in connection with the reclaiming-note for the pursuers against Lord M'Laren's interlocutor of 30th October 1886, amounting, as taxed by me, and noted on the margin of the account, to the sum of Twenty-four pounds, fourteen shillings (£24, 14s.), included in the taxed amount now reported.

“ Note.—… The expenses in connection with this reclaiming-note are the expenses referred to in the reservation in my report. As entered in the account they amount to £47, and as taxed by me, to £24, 14s. It humbly appears to me that this portion of the account should be disallowed, the substitution of the one account

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for the other did not in any way affect the conclusions of the summons, or even the amount sued for. The pursuers, by reclaiming, obtained what they sought from the Lord Ordinary, and while I think it only reasonable that they should pay the expenses incurred by the defender in the Outer House discussion, I consider it too great a penalty that, after succeeding in obtaining a recal of the Lord Ordinary's interlocutor, they should have to pay, in addition to their own Inner House expenses, the expenses incurred by the defender in opposing them unsuccessfully. The reservation attached to the Inner House interlocutor might, I assume, have been obtained from the Lord Ordinary. Of course all previous expenses properly incurred by the defender in connection with the account No. 6, and rendered of no avail by the substitution of No. 34, must be allowed, and in the audit I have endeavoured to give effect to this view. In regard to this point I have only to add, that while in the great majority of cases ‘reserved expenses’ follow the issue of the cause, it has been held by the Court that there is no absolute rule withdrawing such expenses from the consideration of the Auditor.”

The defender argued—He had been found entitled to these expenses. The meaning of a reservation of expenses was that they were reserved till the cause was finally disposed of. If there was a general finding of expenses in favour of one party in the final interlocutor that carried all reserved expenses unless there was some special finding to the contrary— Gardiners v. Victoria Estates Company (Limited), October 27, 1885, 13 R. 80; M'Fie v. Blair, December 12, 1884, 22 S.L.R. 224.

The pursuers argued—The defender was not entitled to these expenses, as he had been unsuccessful so far as they were concerned. These expenses also had not been disposed of by the Lord Ordinary, as there was no remit to him to dispose of them. Nor were they disposed of afterwards on the reclaiming-note.

At advising—