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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Gilp v. Caledonian Railway Co. [1904] ScotLR 42_33 (26 October 1904) URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0033.html Cite as: [1904] SLR 42_33, [1904] ScotLR 42_33 |
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In an action raised in the Court of Session for payment of £500 of damages for assault a jury returned a verdict for the pursuer and awarded him £10 of damages. The defenders had made no tender.
The defenders moved that expenses to the pursuer should be subject to modification, in respect that the smallness of the sum awarded showed that the case ought to have been raised and tried in the Sheriff Court.
The Court refused modification on the ground that no reason had been given for taking the case out of the common rule.
Alexander M'Gilp, inspector of police, Greenock, raised an action before Lord Kincairney in the Court of Session, against the Caledonian Railway Company, in which he sought to recover £500 as damages for an unjustifiable assault alleged to have been committed upon him by three servants of the company, acting within the scope of their employment. After issues had been adjusted by the Lord Ordinary the case went to trial at the sittings before the Lord President, and the jury returned a verdict for the pursuer and awarded him £10 of damages. No tender had been made by the defenders.
When the pursuer moved the Court to apply the verdict, and for expenses, the defenders moved that the expenses should be subject to modification. They argued:—It was a rule settled by recent decisions that where a pursuer only obtained an award for a trifling sum the Court would modify the expenses— Shearer v. Malcolm, February 16, 1899, 1 F. 574, 36 S.L.R. 419; Brennan v. Dundee and Arbroath Joint Railway, May 26, 1903, 5 F. 811, 40 S.L.R. 622; Lafferty v. Watson, Gow, & Company, Limited, June 3, 1903, 5 F. 885, 40 S.L.R. 622. While these were all cases which had originated in the Sheriff Court and been appealed for jury trial to the Court of Session, the rule applied a fortiori of a case which had originated in the Court of Session, for in it the initial expenses also had been incurred on the unnecessarily high scale. The award in this case showed that the action should have been brought in the Sheriff Court as clearly as it would have shown that the case if it had originated in the Sheriff Court ought not to have been appealed to the Court of Session.
The Court, without calling on the pursuer, refused modification on the ground that no reason had been given for taking the case out of the common rule.
Counsel for the Pursuer— Dewar, K.C.— A. M. Anderson. Agent— Alex. Ramsay, S.S.C.
Counsel for the Defenders— Guthrie, K.C.— MacRobert. Agents— Hope, Todd, & Kirk, W.S.
