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 >> M'Guire v. The Union Cold Storage Co., Ltd [1909] ScotLR 323 (15 January 1909) URL: http://www.bailii.org/scot/cases/ScotCS/1909/46SLR0323.html Cite as: [1909] ScotLR 323, [1909] SLR 323 |
||
[New search] [Printable PDF version] [Help]
Page: 323↓
[Sheriff Court at Glasgow.
Held that the expenses which the Court may award against an appellant who has applied for leave to abandon his appeal under rule 96 of the First Schedule of the Sheriff Courts (Scotland) Act 1907 are not limited by section 4 (4) of the A. S. of 5th January 1909 and section 3 (5) of the A. S. of 10th March 1870 to three guineas, but are matter for the discretion of the Court, who may either remit the account to
Page: 324↓
the Auditor or award such sum as they may think proper; and five guineas allowed.
The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51), First Schedule, Rule 96, enacts—“After an appeal has been noted, the appellant shall not be entitled to abandon it unless of consent of all parties or by leave of the Appellate Court.”
The A. S. 5th January 1909, section 4 (4), enacts—“Upon the process being so remitted” [ i.e., remitted to the Court of Session under sec. 30 of the Sheriff Courts (Scotland) Act 1907] “the same regulations as to printing, boxing, lodging, etc., shall apply as are contained with regard to Appeals in the said Act of Sederunt of 10th March 1870, with this qualification, that in the event of an application for a remission of the cause being abandoned, or held to be abandoned, the docquet written by the Clerk of Court or his assistant shall be in the following terms:—‘Retransmitted in respect of the abandonment of the application for a remit to the Court of Session. ”
The A. S. 10th March 1870, section 3 (5), enacts—“On the expiry of the … period of eight days after the appeal has been held to be abandoned … the judgment or judgments complained of shall become final … and the Clerk of Court shall forthwith retransmit the process to the Clerk of the Inferior Court: Provided always that before retransmitting the process the Clerk of Court or his assistant shall engross upon the interlocutor sheet and sign a certificate in these or similar terms;—‘[Date] Retransmitted in respect of the abandonment of the appeal'; and, in respect of said certificate, the Sheriff, or other judge of the Inferior Court, shall, upon a motion being made before him to that effect, grant decree for payment to the respondent in the appeal of the sum of £3, 3s. of expenses.”
Hugh M'Guire, boilerman, 39 Tylefield Street, Glasgow, as tutor and administrator-in-law of his pupil son John M'Guire, brought an action of damages for personal injury in the Sheriff Court at Glasgow against the Union Cold Storage Company, Limited, Glasgow.
Proof was allowed on 11th November 1908, and on 17th November the pursuer required the cause to be remitted to the Court of Session in terms of section 30 of the Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, c. 51). On 27th November the cause appeared in the Single Bills of the Second Division and was sent to the Summar Roll. On 15th January 1909 the pursuer presented a note to the Lord Justice-Clerk praying his Lordship to move the Court to pronounce an order allowing him to abandon his application for remit, and to retransmit the process to the Sheriff Court for further procedure.
Counsel for respondents moved for expenses.
Argued for appellant—The question of expenses was ruled by section 4 (4) of the Act of Sederunt of 5th January 1909, which applied the Act of Sederunt of 10th March 1870 to all cases where the appeal was abandoned with leave of the Court, or was held to be abandoned on failure to print. Under the said Act of Sederunt of 1870 the defender could only recover three guineas of expenses. If rule 96 of the First Schedule of the Sheriff Courts Act 1907 (7 Edw. VII, cap. 5) gave the Court power to award further expenses, it had been modified in that respect by the later Act of Sederunt.
Argued for respondents—The question of expenses was matter for the consideration of the Auditor, and the Court should remit the account to him to tax and report.
The present case clearly falls under rule 96 of Schedule I of the Sheriff Courts (Scotland) Act 1907—“After an appeal has been noted, the appellant shall not be entitled to abandon it unless of consent of all parties or by leave of the Appellate Court.” Now we have been asked for leave to abandon, and there is no reason why we should not comply with the appellant's request. We accordingly grant him leave, the only question being on what terms as regards the payment of expenses.
Mr Macmillan, for the respondents, asked us to remit the question to the Auditor. Mr Fleming, for the appellant, founding on section 4 (4) of the Act of Sederunt of 5th January 1908 and section 3 (5) of the Act of Sederunt of 10th March 1870, contended that his liability was limited to £3, 3s.
I am of opinion that in the case before us our discretion in the matter of awarding expenses is in no way curtailed by any statutory provision or provision by Act of Sederunt, and if we thought it desirable we might remit the account to the Auditor. The matter, however, is a small one. I do not consider that it is a case for a minimum award such as the pursuer pleads for. I think we shall best dispose of it by modifying the expenses due by the appellant to the respondents at five guineas.
Page: 325↓
The Court allowed the appellant to abandon his appeal on payment of five guineas of modified expenses.
Counsel for Appellant— D. P. Fleming. Agents— Clark & Macdonald, S.S.C.
Counsel for Respondents— Macmillan. Agents— Morton, Smart, Macdonald, & Prosser, W.S.
