Scottish Court of Session Decisions

Robert Mickel, timber merchant and property owner, Glasgow, pursuer, brought an action in the Sheriff Court at Glasgow against Mrs Sarah M'Coard, Kilcreggan,

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Dumbartonshire, defender, for £350 in respect of damage caused by flooding to a house in Glasgow belonging to the pursuer, of which the defender was formerly the tenant.

On 15th February 1912, after a proof led, the Sheriff-Substitute ( Craigie) decerned against the defender for £100 as damages and found the pursuer entitled to expenses.

The defender appealed to the Second Division of the Court of Session, the note of appeal being received on 26th March 1912, and on the same day the defender lodged a minute tendering £50 with expenses in full of the conclusions of the action.

On 16th May 1913, after hearing counsel for the parties, the Court recalled the interlocutor of the Sheriff-Substitute; decerned against the defender for payment of £50 as damages; found the defender liable to the pursuer in expenses down to the date of the minute of tender, but subject to modification; found the pursuer liable to the defender in expenses subsequent to the date of the tender; allowed accounts thereof to be lodged, and remitted the same to the Auditor to tax and report.

At advising, the pursuer made no motion with regard to the scale on which the account of his expenses in the Sheriff Court should be taxed, and the pursuer having stated it on the higher scale, the Auditor taxed it on the lower scale.

Thereupon the pursuer lodged a note of objections to the Auditor's report “in so far as the Auditor has taxed the pursuer's account in the Sheriff Court on the lower scale,” and on the case appearing in the Single Bills on 11th July 1913, argued—The sum of damages decerned for in the Court of Session could not settle the scale of taxation of the account of expenses in the Sheriff Court. That fell to be determined by the amount of the Sheriff Substitute's award. Since his award was one of £100, it involved taxation on the higher scale, and under the Codifying Act of Sederunt, M, ii, 2 (3), he alone had power to alter the scale. Thomson v. Glasgow Taoci-Cab Company, [1911] 1 S.L.T. 375, was different, because there the pursuer had accepted the sum of £25. The Court ought therefore to find that the expenses should be taxed on the higher scale, or else should remit the question to the Sheriff-Substitute to settle as was done in Reid v. North Isles District Committee of County Council of Orkney, 1912 S.C. 627, 49 S.L.R. 511.

Argued for the defender—The Court had decerned for a sum of damages which did not exceed £50, and therefore under the Codifying Act of Sederunt, M, ii, 1 and 2 (3), the Auditor was bound to tax the expenses on the lower scale. In any event it was now too late to raise the question after the remit had been made to the auditor. The pursuer should have raised the question at the time when he moved for expenses by moving at the same time for an instruction to the Auditor to tax the account on the higher scale.