BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Malcolm v. Moore [1901] ScotLR 39_259 (18 December 1901) URL: http://www.bailii.org/scot/cases/ScotCS/1901/39SLR0259.html Cite as: [1901] SLR 39_259, [1901] ScotLR 39_259 |
||
[New search] [Printable PDF version] [Help]
Page: 259↓
[
(Reported ante, p. 26).
Where in respect of a tender which had been rejected by a pursuer, the pursuer was found entitled to expenses only “to 12th June 1901,” being the date of the tender, held that such an award included only the expenses properly incurred before that date, and consequently did not include the expense of precognitions taken before the adjustment of issues for the trial of the cause, although they had in fact been taken prior to the date up to which expenses had been allowed.
This was an action of damages for slander at the instance of Thomas Malcolm, compositor, Iona Street, Leith, against William Moore, 7 Balfour Street, Leith.
On 12th June 1901 the defender offered an apology, and tendered the sum of £51 and expenses. The tender and apology were not accepted by the pursuer, and the case was tried before a jury. The jury found for the pursuer and assessed the damages at the sum of £50.
On 25th October the Court, being of opinion that the apology offered was ample, and ought to have been accepted by the pursuer, found “the pursuer entitled to expenses to 12th June 1901” (the date of the tender), and found the defender entitled to expenses subsequent to that date.
Page: 260↓
The accounts having been remitted to the Auditor for taxation, he disallowed the charges for the precognitions of seventeen witnesses taken upon 7th June, at which date no issue had been allowed and the record had not been closed.
The pursuer objected to the Auditor's report on the ground that he had disallowed these charges.
Argued for the pursuer—There had been a lower tender made which he had legitimately rejected, and in view of it he had been quite right in taking precognitions. An issue had ultimately been adjusted, and accordingly the date of taking the precognitions was immaterial. The interlocutor of the Court distinctly specified expenses “to 12th June,” and this was an expense incurred prior to that date.
Argued for the defender—These precognitions had been taken before an order for proof or adjustment of issues, and were therefore not a good charge against the other side. It was the practice of the Auditor to disallow such charges— Shirer v. Dixon, May 28, 1885, 12 R. 1013, 22 S.L.R. 669; Church v. Caledonian Railway Company, December 22, 1883, 11 R. 398, 21 S.L.R. 268. The tender should have been accepted when no issue would have been necessary, and the pursuer ought not to profit by his wrongous procedure.
The charges which have been struck out by the Auditor are for the precognitions of seventeen witnesses taken upon the 7th June. The principle upon which the Auditor has proceeded is that the parties carrying on a litigation are not entitled to the expenses of any precognition taken before proof has been allowed or issues have been adjusted. These expenses were all incurred before issues were adjusted. Now, it appears to me that where a party tenders a sum of money, together with expenses up to date, that means the legitimate and proper expenses to which the pursuer would be entitled if he succeeded in the action. If that be so, it is clear that these charges cannot be allowed, because they were incurred before the allowance of proof or adjustment of issues, and that the the Auditor was right in disallowing them.
The
The Court repelled the objection to the Auditor's report.
Counsel for the Pursuer— J. C. Watt— Spens. Agents— Reid & Crow, Solicitors.
Counsel for the Defender— Watt, K.C.— Munro. Agents— Sim & Garden, S.S.C.
