Scottish Court of Session Decisions

Lord President—There is undoubtedly in this case a great peculiarity which I do not recollect to have seen in any previous case. Mr Baird was called in the action of reduction both as trustee and executor nominated and appointed under the trust-disposition and settlement challenged and also as an individual. He was at that time undoubtedly claiming the position of a trustee, and holding out that he held a valid appointment with all the rights and powers incident to that office. I do not quite understand how he comes to be assoilzied as an individual, but we must, of course, accept the fact that he was assoilzied in that capacity. If he had not truly had position as a trustee under a valid appointment he should have disappeared from the case, and left the litigation to be conducted by any of the individual defenders who desired to do so. But that was not the course he took. He remained a party to the case and contested it to the last. Under these circumstances it appears to me that, although he had been assoilzied as an individual, he by remaining in the case representing that he truly held the status of a trustee became bound either to make that representation good or to take the consequences of failing to do so. He was unsuccessful, and it seems to me that it would be a great injustice to the successful pursuers if they could get no expenses from anyone, as he failed to make his representation good. I am of opinion that he should be found liable as an individual.

Lord Kinnear—I agree in so far as this motion raises the ordinary question as to the liability of a person nominated as a trustee by a testament which turns out to be invalid.

So far as the question depends on matters of conduct with reference to the administration of the trust and the litigation I should accept the opinion of the Judge who tried the case. But there is a very special peculiarity in this case, and that is the way in which the summons has been framed, and the way in which the case has been dealt with by the Court. The pursuer has distinguished in his summons between two separate characters in the case of one of the defenders. He distinguishes between his character as a trustee and his character as an individual, and in the course of the proceedings the Lord Ordinary, by a judgment which is now final, has assoilzied the defender in his character as an individual, and found him entitled to expenses up to that date. From that time, the defender being assoilzied as an individual, was out of the case altogether except in so far as he was entitled to remain in the case as a trustee. The pursuer has now succeeded in establishing that the defender was not, and never had the character of, a trustee, and that his position throughout this action was never anything else than that of an individual. Now, I think that raises what looks like a serious difficulty in the way of the pursuer's claim that a defender, against whom he admits that he has no claim as an individual but only as a trustee, is to be made liable for expenses. As an individual he is out of the case, and as a trustee it is established that there is no trust estate. But that presents at most a logical puzzle. The defender, who has been assoilzied, did not leave the action to proceed as between the other parties who were named in it, but he continued to be the active litigant. As I understand the statement made to us he was really the defender who conducted the defence throughout the trial, though there might be a difficulty in finding any specific conclusion of the summons which will enable the pursuer to obtain a decree against him. I think there is such a difficulty, and I think it is a difficulty the pursuer is responsible for making. But then the rule which Mr Wilson founded upon is perfectly clear, that in order to dispose of the expenses of litigation it is not necessary either that there should be any express conclusion for expenses, or even that there should be any express conclusion against a party at all. to entitle the Court to subject him in expenses. The Court is absolute master of the question of expenses. When it turns out that the expense of litigation has been caused by a party before the Court—whether he is named in the conclusions of the summons or not—he may be found liable in the expenses he has caused. Upon that ground I agree with your Lordship that this defender must be still considered a litigant, and therefore subject to the ordinary liabilities for expenses.

Lord Adam and Lord M'Laren concurred.