Scottish Court of Session Decisions

Lord Adam—I think the rule is that if there are separate actions between the same parties, as in the cases quoted by Mr Rhind, the agent in the one case is entitled to decree in his own name as disburser, and the other party is not allowed to set off expenses decerned for in his favour in the other action, but it is also, I think, equally established that in the same action when one party has obtained a decree for part of the expenses of the action, the agent of the opposite party is not entitled to obtain decree in his own name for expenses to which his client has been found entitled. The one account is always set off against the other.

Here there were not two separate actions, but only one action, and the accounts must be set off against one another. It makes, I think, no difference that the two accounts of expenses were incurred upon separate appeals.

Lord M'Laren—The only consideration which occurs to my mind to lead me to think that the rule that compensation should not hold in the case of different actions is a convenient one, is because the second action is not necessarily tried by the same judge as the first, and the judge in the second action may have no knowledge what was done in the former action. Therefore the attempt to set off the expenses in the one action against the expenses in the other might involve an inquiry quite unsuited to a motion for expenses. When both accounts are incurred in the same action the Court can deal with the whole subject of expenses, and without risk of injustice may set-off the one account against the other as seems consistent with the known principle of compensation.

Lord Kinnear—I am of the same opinion. I think the rule is quite fixed that compensation may be pleaded where cross accounts occur in the same action, and not where they occur in different actions. In addition to the reason suggested by Lord M'Laren, there seems to me to be another reason for the rule in the fact that the agent-disburser's right to take decree in his own name cannot be cut down by extrinsic claims of compensation between the adverse parties, and the debt arising from decree for expenses in another action is clearly an extrinsic debt.

The Court approved of the Auditor's report upon the pursuer and appellant's account of expenses, No. 33 of process, and decerned in favour of the appellant for the taxed amount thereof, less £2, 18s., being the charges in said account for making the motion for approval of the Auditor's report and decerniture, in respect that before enrolment of the motion the taxed amount of the account was tendered by the respondent to the appellant.