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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Johnston v. Johnston [1903] ScotLR 40_302 (27 January 1903)
URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0302.html
Cite as: [1903] SLR 40_302, [1903] ScotLR 40_302

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SCOTTISH_SLR_Court_of_Session

Page: 302↓

Court of Session Inner House First Division.

Tuesday, January 27. 1903.

40 SLR 302

Johnston

v.

Johnston.

Subject_1Expenses
Subject_2Husband and Wife
Subject_3Interim Award
Subject_4Husband Reclaiming — Motion in Inner House for Award to Cover Expenses in Outer House — Payment a Condition of Proceeding.
Facts:

In a reclaiming-note at the instance of the pursuer in an action of divorce by a husband against his wife, the wife moved for an interim award of expenses, calculated at a sum which was more than sufficient to enable her to present her case in the Inner House, and was designed to meet a portion of the expenses incurred by her in the Outer House, which had exceeded an interim award made by the Lord Ordinary. She also moved that payment of the sum awarded should be made a condition-precedent to the reclaiming-note being heard. The Court, in making an award of expenses, limited the amount to the sum necessary for the conduct of the case in the Inner House, and refused in the meantime to make payment a condition of proceeding with the reclaiming-note.

Headnote:

In an action of divorce at the instance of John Johnston against his wife Mrs Maggie Wilson or Johnston, and another, the Lord Ordinary ( Stormonth Darling) awarded Mrs Johnston £15 as interim expenses. After a proof he pronounced an interlocutor by which he assoilzied Mrs Johnston from the conclusions of the action, and found her entitled to expenses. Against this interlocutor Johnston reclaimed.

Mrs Johnston presented a note to the Lord President in which she prayed his Lordship to move the Court to decern against the pursuer, ad interim, for payment to her of the sum of £200, or such other sum as the Court might think fit, on account of her expenses in the case, and “to make payment of the sum so to be awarded a condition of the pursuer being allowed to proceed with his reclaiming-note in the cause.”

In the note she averred that the proof had lasted for three days, and had entailed expenses amounting to £150, that she had no means of her own, and had received nothing from the pursuer except the £15 awarded by the Lord Ordinary. She argued that a substantial award of expenses should be given.

Counsel for the reclaimer argued that the expenses to be awarded should be only the amount necessary to enable the respondent to present her case in the Inner House. Interim award of expenses in the Outer House was a question for the Lord Ordinary.

 Judgment:

Lord President—I think that the question in regard to the expenses already incurred in the Outer House should be dealt with by the Lord Ordinary in the Outer House. A motion for expenses might have been made by the defender then, and whatever the result of that motion might have been I do not think that either practice or expediency would induce us at this stage to make an award of Outer House expenses here. The question remains whether we should now make an award of expenses to enable the defender to present her case in the Inner House. She holds the judgment of the Lord Ordinary, and therefore she will not incur the expense of printing but only the expenseof instructing counsel to support the Lord Ordinary's judgment. We think these expenses may be met by an award of £20. We do not propose at present to make the payment of this sum a condition-precedent to allowing the hearing on the reclaiming-note to proceed, but we expect that it will be at once paid, and if it is not paid we may afterwards consider whether payment should not be made a condition-precedent to our hearing the pursuer on his reclaiming-note.

Lord Adam—I have always understood that the motion for expenses was made for the purpose of enabling the wife—whether she be pursuer or defender—to lay her case before the Court. That proceeded on the principle that the whole property was in the husband, and therefore that the wife had no means. I further

Page: 303↓

think that while a case of this kind is before the Lord Ordinary the control of the matter of expenses is altogether with him. The defender appears to have obtained an award of £15 from the Lord Ordinary. If that was not sufficient there was no reason why she should not have repeated her motion to the Lord Ordinary, and if he had thought right he would have granted a further award. That there is a reclaiming-note makes no difference in my view. The whole interlocutor of the Lord Ordinary is under review, and until that is disposed of we cannot touch the question of Outer House expenses. The only question, as I said before, is what award of expenses should be made now to enable the wife to conduct her cause before us. If she had had to print the proof then the sum to be awarded might have been different. But the whole of that expense falls on the unsuccessful party. All that the wife requires to do is to instruct counsel to state her case to the Court, and I agree that, that being so, an award of £20 is quite sufficient.

Lord M'Laren concurred,

Lord Kinnear—I concur with your Lordships, and would only add that I agree with all that Lord Adam has said with reference to the practice and the conditions under which a wife may have an award for her estimated expenses while a litigation is going on.

The Court awarded £20 of interim expenses.

 Counsel:

Counsel for the Pursuer— Hunter— T. B. Morison. Agents— Macpherson & Mackay, S.S.C.

Counsel for the Defender— Dundas, K.C.— Christie. Agents— R. & R. Denholm & Kerr, W.S.

 1903

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URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0302.html