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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hutchison v. Hutchison's Trustees [1902] ScotLR 40_200 (11 December 1902) URL: http://www.bailii.org/scot/cases/ScotCS/1902/40SLR0200.html Cite as: [1902] ScotLR 40_200, [1902] SLR 40_200 |
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Page: 200↓
The Law-Agents and Notaries Public (Scotland) Act 1891, sec. 6, enacts that where a law-agent has been employed to pursue or defend an action, the Court before whom such action has been heard may declare the law-agent entitled “to a charge upon and against, and a right to payment out of the property … recovered or preserved on behalf of his client by such law-agent in such action … for the taxed expenses of or in reference to such action.”
An action was raised against a body of trustees for payment of an account alleged to be due by the trust estate. The trustees informed the beneficiaries that they were unable to resist the pursuer's claim, and that unless the beneficiaries sisted themselves as defenders they would raise an action of multiplepoinding. The beneficiaries sisted
Page: 201↓
themselves and lodged defences. The trustees also lodged defences, and both trustees and beneficiaries defended the action to the end. They were separately represented in the Sheriff Court, but not in the Court of Session. The defenders were successful. Thereafter the agents of the beneficiaries sought to have the expenses incurred to them charged upon the trust estate, and moved for an order in terms of section 6 of the Act of 1891, alleging that the amount of the sum sued for in the action had been preserved to the estate by them on behalf of their clients. Held that the case did not fall under the statute, and motion refused.
In an action in the Sheriff Court at Dumbarton at the instance of John Hutchison junior, plasterer and slater, 64 College Street, Dumbarton, against the trustees of his father the deceased John Hutchison senior, slater and plasterer, Dumbarton, for payment of an account for £166,10s. 5d., alleged to be due by the trust estate, defences were lodged for the trustees and also for the beneficiaries, sisters of the pursuer, who were sisted as defenders and were separately represented. The defenders were successful, and were found entitled to expenses. An appeal by the pursuer to the Court of Session was dismissed, and he was found liable in the expenses of the defenders in the Court of Session.
The present question arose on a minute presented by William Ritchie junior, solicitor, Dumbarton, and Messrs Dove, Lockhart, & Smart, S.S.C., Edinburgh, the agents of the beneficiaries in the Sheriff Court and Court of Session respectively, in which the minuters craved the Court to declare that they were “entitled to a charge upon and against, and a right to payment out of the estate of the said John Hutchison senior for the expenses incurred to them of or in reference to the action” above mentioned, as the same might be taxed, and to ordain the trustees to make payment thereof, in terms of the Law-Agents and Notaries Public (Scotland) Act 1891 (54 and 55 Vict. cap. 30), sec. 6.
That section enacts as follows:—“In every case in which a law-agent shall be employed to pursue or defend any action or proceeding in any court, it shall be lawful for the court or judge before whom any such action or proceeding has been heard or shall be depending to declare such law—agent entitled to a charge upon and against, and a right to payment out of the property, of whatsoever nature, tenure, or kind the same may be, which shall have been recovered or preserved on behalf of his client by such law-agent in such action or proceeding, for the taxed expenses of or in reference to such action or proceeding, and it shall be lawful for such court or judge to make such order or orders for taxation of, and for raising and payment of such expenses out of the said property, as to such court or judge shall appear just and proper.” …
When the pursuer's action was served upon the trustees they informed the beneficiaries that they could not do other than admit the pursuer's averments, and they requested the beneficiaries to take steps to sist themselves as defenders in the action to state any objections they might have to the account sued on. This request was made on account of circumstances owing to which the trustees did not think that all parties would be satisfied with the defence as conducted by them.
The beneficiaries were unwilling to sist themselves as defenders, but on being informed that the trustees were to raise an action of multiplepoinding if they did not do so they applied to have themselves sisted, and were sisted and lodged defences. The trustees also lodged defences, and both the trustees and the beneficiaries continued to defend the action till the end. They were represented by separate agents in the Sheriff Court, but they were not separately represented in the Court of Session.
In the present minute the agents of the beneficiaries averred that these defenders had preserved the trust estate to the extent of the sum sued for and the expenses which the pursuer would have recovered out of the estate if he had been successful.
Argued for the agents of the beneficiaries—The amount of the account sued on had been “preserved” to the trust estate on behalf of the beneficiaries, who were the clients of the minuters in the sense of the section of the statute relied on, and the beneficiaries having been brought into the action as defenders by the trustees, who otherwise would not have defended, the minuters were entitled to a favourable exercise of the discretion of the Court— Carruthers v. Carruthers' Trustees, January 7, 1897, 24 R. 363, 34 S.L.R. 254.
Counsel for the trustees argued that the prayer of the minute should be refused, and stated that the agents of the trustees had at one time acted for the pursuer of the action, and that the beneficiaries were asked to sist themselves or allow the trustees to raise an action of multiplepoinding for their own exoneration, because one of the beneficiaries had written to the agents of the trustees expressing a fear that they were not in earnest in their defence.
Page: 202↓
The case before us is this—Trustees were sued for what was alleged to be a trust debt, and after lodging defences intimated to the beneficiaries that they would not maintain their defences unless the beneficiaries desired this to be done, but would protect themselves by raising a multiplepoinding. The beneficiaries thereupon asked to be sisted, and were sisted as defenders. They maintained the defence originally stated by the trustees successfully. They say that in doing so they have “preserved” the estate. They have no doubt been successful in preventing the pursuer obtaining decree for his claim, but that is nothing more than saying that for their own benefit they have successfully resisted a claim which was unfounded. In these circumstances I do not think any estate has been “preserved” to the trust by the beneficiaries. The estate, and consequently the beneficiaries, have not been made liable for the pursuer's claim—that is all.
If a claim is made against trustees which if successful would take away part of the estate which they hold, but which they succeed in defeating, and if the law-agent who has been employed by them claims a charge upon that part of the estate which has been “preserved on behalf of his clients” by him, I think that would be a case falling under the 6th section of the statute.
In the present case, as far as I can see from the papers, the trustees defended an action, and continued to do so separately to the end. They had separate pleas, all combating the pursuer's claim, and they were successful. But the beneficiaries do not seem to have had confidence in the trustees' defence, and chose to appear to see the action fought out. They entered separate appearance and lodged separate defences with separate pleas. I think the estate which they were defending could have been preserved by a single defence by the trustees, and that a double charge should not be sanctioned.
The Court refused the prayer of the minute.
Counsel for the Minuters— Hunter. Agents— Dove, Lockhart, & Smart, S.S. C.
Counsel for the Trustees— A. S. D. Thomson. Agents— Party.
