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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Young and Others v. Burgh of Darvel [1923] ScotLR 485 (25 May 1923) URL: http://www.bailii.org/scot/cases/ScotCS/1923/60SLR0485.html Cite as: [1923] ScotLR 485, [1923] SLR 485 |
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Page: 485↓
(Single Bills.)
The successful defenders in an action moved for and obtained a finding for expenses generally against several pursuers without mention of joint and several liability among them. When moving for approval of the Auditor's report they craved decree against the pursuers jointly and severally. Held that where a joint and several award of expenses against a group of pursuers is desired, it must be moved for when the motion for expenses is made; that it is too late to make good the omission when the Auditor's report comes up for approval; and motion refused.
Thomas Young, Turf Hotel, Darvel, and other licence-holders, brought an action against the Provost, Magistrates, and Council of Darvel. The Lord Ordinary's judgment dismissing the action was affirmed by the First Division and by the House of Lords. The successful defenders having moved for expenses without applying for a finding of joint and several liability, the finding was made in ordinary course against the pursuers simply. Thereafter, on the motion for approval of the Auditor's report and for decree for payment of the taxed amount of the expenses, the defenders moved for decree “against the pursuers jointly and severally.”
Counsel for pursuers argued that as the defenders had moved for and obtained a finding for expenses, simple and unqualified in its terms, it was too late to ask for the insertion of the words “jointly and severally.”
The following authorities were cited:—Bell's Prin., section 59; Countess of Sutherland v. Cuthbert, 1776, 5 Br. Supp. 439; Warrand v. Watson, 1907, S.C. 432, 44 S.L.R. 311; Glas v. Stewart, 1832, 10 S. 351; Macgown v. Cramb, 25 R. 634, 35 S.L.R. 494.
So long ago as 1776, in the case of the Countess of Sutherland v. Cuthbert ( 5 Br. Supp. 439) it was held that “where two persons concur in bringing an action upon the same medium, and with the same conclusion, they are liable in expenses in solidum, even although the words conjunctly and severally are not added.” It appears from an examination of the session papers in the Advocates' Library (Campbell's Collection, vol. 28, No. 33) that the point was raised and debated before decision. In reliance upon this precedent Professor Bell enunciates in his Principles (section 59) the general proposition that “even joint pursuers in an action in which expenses are found due to the defender are each in solidum bound for the whole.” The difficulty and inconvenience of executing in solidum a decree which is not in terms joint and several are obvious. But the soundness of the rule laid down in the Countess of Sutherland is not impugned in the present case. If it be sound (and I must not be
Page: 486↓
The point raised is one of practice purely. It is plainly much more convenient that a question which depends on the nature of the action and the relation in which the various pursuers stand to it and to the grounds on which it is supported, should be raised and decided when the motion for expenses is made immediately after delivery of judgment. The circumstances of the case are then fresh in the minds of the Court and of parties alike, and a question concerning the form in which expenses should be awarded, and to which according to ordinary practice the later operative decree will be made to conform, ought therefore to be raised at the earlier stage. This view is consonant with that which was taken in Warrand v. Watson ( 1907 S.C. 432) and with the rule laid down there. It is true that the circumstances to which the rule was made to apply were not completely on all fours with those presented in this action inasmuch as the case of the respondents in Warrand was not covered by any such principle as that which, under the Countess of Sutherland, applies to the case of the joint pursuers here. It may be said in the present case that the Court is only asked to make express, in the decree, that which was implicit in the finding; while in Warrand v. Watson the Court was asked to make for the first time the liability for expenses a joint and several one at the stage of approval and decerniture. The complete discretionary power of the Court in the matter of expenses, however, makes this distinction of but little moment from the point of view of practice. It seems to me that the best course in cases such as the present is to apply the rule so recently laid down in Warrand v. Watson, even though that course may involve a slight extension of the rule. If therefore a successful defender wishes a decree which is in terms a joint and several one for expenses against a group of pursuers, he must in moving for the award of expenses ask that the award be against the pursuers jointly and severally.
I think therefore that the defenders' motion should be refused, and that the decree must conform to the finding for expenses.
The Court refused the defenders' motion.
Counsel for Pursuer— Duffes. Agents— Bruce & Stoddart, S.S.C.
Counsel for Defenders— Patrick. Agents— Alexander Morison & Co., W.S.
