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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jack v. Black [1911] ScotLR 586 (15 March 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0586.html Cite as: [1911] ScotLR 586, [1911] SLR 586 |
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Page: 586↓
[
(Reported on the Merits, January 28, 1911, supra, p. 331.)
Where a tender is lodged, the pursuer, if he means to accept it, must do so within a reasonable time. Where that time has been exceeded the defender is entitled to the expenses incurred by him in the natural progress of the cause between the date when the tender ought to have been accepted and its acceptance—the question as to what is a reasonable time being matter for the consideration of the Auditor.
In this case, which was an action of damages for wrongous use of diligence in obtaining a warrant to carry back a tenant's furniture to premises vacated by him, the Lord Ordinary ( Dewar) on 2nd November 1910 approved of an issue for the trial of the cause.
On 10th February 1911 his Lordship fixed the trial for 30th May. On the same day the defender lodged a tender of £75 with expenses to its date. The tender was accepted by the pursuer on 2nd March 1911.
Page: 587↓
Thereafter, on 4th March 1911, the Lord Ordinary ( Dewar), in respect of the minute of tender and acceptance, decerned against the defender for the said sum of £75, and found the defender liable in expenses.
The defender reclaimed, and argued that he was entitled to expenses between the date of lodging the tender and its acceptance. When, as here, a pursuer unduly delayed accepting a tender, the defender was entitled to assume that it was not going to be accepted. He was not bound to wait till the eve of the trial before preparing for it. The reclaimer had incurred expense in obtaining precognitions. These expenses were necessary in the proper conduct of the case, and he was therefore entitled to them— Shaw v. Edinburgh and Glasgow Railway Company, No vember 28, 1863, 2 Macph. 142; M'Laughlin v. Glasgow Tramway and Omnibus Company Limited, June 30, 1897, 24 R, 992; Wilson v. Rapp, 1909, 2 S.L.T. 295; Jacobs v. Provincial Motor Cab Company Limited, 1910 S.C. 756, 47 S.L.R. 634. Reference was also made to article 3 of the General Regulations as to the Taxation of Judicial Accounts ( v. P.H. Book, G 34).
Argued for respondent—The Court would not readily entertain a reclaiming note on the mere question of expenses, especially where, as here, the sum in dispute was trifling— Caldwell v. Dykes, May 25, 1906, 8 F. 839, 43 S.L.R. 606. The pursuer was entitled to consult counsel before accepting the tender, and owing to the intervention of the February week (when the Court did not sit) counsel were not available. No undue delay had therefore taken place.
Now we never encourage reclaiming notes on the matter of expenses alone, but I think that that means that we do not encourage reclaiming notes on the matter of expenses where there has been a decision on the merits and where a party acquiescing on the merits reclaims merely on the question of expenses. I do not look upon this as a case of that sort, because this case really raises a general question as to what is the proper interlocutor to pronounce in respect of a tender, there being no contest in one sense on the merits at all.
I am of opinion that the matter is well settled. When one of the parties, the defender, puts in a tender in proper form, he is bound to give a reasonable time to the pursuer whether he shall or shall not accept it. But as soon as that reasonable time has passed the defender is perfectly well entitled to go on with his preparations for the trial, and I have only a slight alteration to make on the words which I used in the case of Jacobs (Session Cases 1910, p. 756), where I said—“The pursuer gets what is offered by the tender and his expenses to its date” (and in practice that includes a fee for consulting his counsel as to whether he should or should not accept it), “but that, on the other hand, the defender is entitled to the expenses incurred by him in the natural progress of the cause in the period between the making of the tender and its acceptance.” I alter these words now “making of the tender,” because I think the true date is the date at which it is reasonable to expect that the tender should either be accepted or refused. I think in a case such as the present the best course would be for the Judge to pronounce an interlocutor in general terms, leaving it to the Auditor to decide, which he can easily do, what is the reasonable date at which a particular tender ought or ought not to be accepted, because quite obviously it is not a matter in which you can lay down a general rule as to a period. The matter depends very much upon how soon the trial is to be, and in one of the cases cited to us it was held that a pursuer ought only to have had two days to consider the matter. That was a case where the trial was so imminent that there was a necessity for despatch, so to speak, on both sides. But although I think that it should generally be left to the Auditor, yet in this particular case as we have the whole facts before us we can determine the question ourselves, being in as good a position as the Auditor would be. It seems to me that the date of the trial having been fixed at a somewhat remote date, viz., the 30th of May, it was necessary for the defender to give a reasonable time to the pursuer to consider as to acceptance of the tender. It was made upon 10th February, which was a Friday, and the next day, the 11th, was a Saturday, on which the Court rose for the February week. I do not think that that week can be kept out of consideration altogether, but, on the other hand, it cannot be treated as a Court week, and therefore upon the whole matter I think the pursuer was entitled to a couple of days of the next week, and accordingly to give him until the evening of Wednesday, 22nd February, is giving him ample time to have considered sufficiently as to whether he would accept the tender or not. I think that by that time he ought to have accepted it if he was going to accept it.
Therefore I think the defender ought to have such expenses as he can show were incurred by him in preparing for the trial from 22nd February.
Page: 588↓
Mr M'Lennan argued that in this matter we ought to follow the rule laid down in the regulations, that a person in whose case a proof is allowed is entitled to the expenses of preparation for the proof even although these expenses were incurred before the date of the allowance of proof, if in fact an allowance of proof is ever made. I do not think that that applies to the present case, for a simple reason. A man who comes into Court is entitled to have the courage of his opinions, and if he says “I think proof ought to be allowed,” and risks the matter and goes on to make his preparations, he will get his expenses if he is right. But that is not the case here. The case here is that a tender was made, and it was dubious whether it would be accepted or not. I do not think that the party making the tender is entitled to go on and make preparations as if the tender was certain to be refused.
I propose that we recal the Lord Ordinary's interlocutor and find the pursuer entitled to the expenses up to the date of the tender, and to find the defender entitled to the expenses, if any, incurred subsequent to Wednesday, 22nd February 1911.
The Court pronounced this interlocutor—
“The Lords having considered the reclaiming note for the defender against the interlocutor of Lord Dewar, dated 4th March 1911, and heard counsel for the parties, recal the finding therein as to expenses, and in lieu thereof find the defender liable in expenses to the date of tender, viz., 10th February 1911: Find the defender entitled to expenses (if any) incurred by him subsequent to 22nd February 1911, and remit the accounts of said expenses to the Auditor to tax and to report to the Lord Ordinary, to whom remit the cause with power to decern for the taxed amounts thereof: Quoad ultra adhere to the said interlocutor, and decern.”
Counsel for Pursuer (Respondent)— Paton. Agents— Gill & Pringle, W.S.
Counsel for Defender (Reclaimer)— M'Lennan, K.C.— Mercer. Agents— Cumming & Duff, S.S.C.
