Scottish Court of Session Decisions

The Lord President said—There is an important Act of Sederunt, dated 19th December 1835, which provides, “that notwithstanding a party shall be found entitled to expenses generally, yet if, on the taxation of the account, it shall appear that there is any particular part or branch of the litigation in which such party has proved unsuccessful, or that any part of the expense has been occasioned through his own fault, he shall not be allowed the expense of such parts or branches of the proceedings.” Keeping in view this general rule, we have to construe our interlocutor of March 8th. We found the pursuer entitled to expenses. If no more had been said, it was the duty of the Auditor to consider whether, in any part of the case, the pursuer, the successful party on the whole, had been unsuccessful. On this we have a very plain statement in the interlocutor. It was the Auditor's duty to strike off the part of the pursuers' account for the period between 17th June and 2d November 1871. But then we found the pursuers entitled to expenses, “subject to a deduction of £25, in respect of the proceedings, &c.” This is represented as a modification, a fixing, without any remit to the Auditor, of the amount to be deducted from the pursuers' account, as representing the amount of expenses for the period in which they were unsuccessful. It is not expressed as a modification. The true meaning is that we must first take the taxed account, and then deduct £25 from the taxed account. I am satisfied that it was the intention of the Court, as well as the proper meaning of the interlocutor, that the £25 should be paid to the defender for his expenses during the period in which the pursuers were unsuccessful.