Cairns v McGregor
| Jurisdiction | Scotland |
| Judgment Date | 14 November 1930 |
| Docket Number | No. 13. |
| Date | 14 November 1930 |
| Court | Court of Session (Inner House - Second Division) |
2D DIVISION
Ld. Moncrieff
Expenses—Dominus litis—Interest in and control of suit—Affiliation and aliment—Aunt of defender taking control of defence—Whether control without definite interest sufficient to involve liability.
An action for payment of her taxed expenses in a previous action of affiliation and aliment was brought by a domestic servant against an aunt of the defender in the previous action, on the ground that she wasdomina litis in the litigation. The pursuer averred that the nephew was entirely without means; that he lived with, and was entirely supported by his aunt, the present defender; that she had given evidence in the previous action, and had instructed her own law agents to conduct the litigation; that the funds for payment of aliment were provided by her; and that she had controlled the defence in the previous action, giving instructions in regard thereto without consulting her nephew the defender.
Held that the pursuer's averments failed to disclose any proper interest on the part of the defender in the action of affiliation brought against her nephew; and action dismissed as irrelevant. Authorities reviewed.
On 12th March 1930 Mary Cairns, Govan, brought an action against Mrs Annie Leitch or M'Gregor, Cardonald, in which she concluded for payment of the sum of £62 12s. 9d., the amount of her taxed expenses in an action of affiliation and aliment at her instance against the defender's nephew, Alexander Ramsay, in which she had obtained decree in the Sheriff Court at Glasgow. The ground of the present action was that Mrs M'Gregor had been domina litis in the defence of the action of affiliation and aliment.
The pursuer averred, inter alia:—"(Cond. 1) The pursuer is a domestic servant, and was formerly in the employment of the defender at her house in Berryknowe Road, Cardonald, Glasgow. The defender supports in her said house one Alexander Ramsay, her nephew, who is believed to be a student of medicine at Glasgow University. The said Alexander Ramsay was resident with and entirely supported by the defender, his aunt, during the years 1926 to 1929. The pursuer was in the defender's service as a domestic servant from October 1926 until August 1928. (Cond. 2) On 25th January 1929 the pursuer gave birth to an illegitimate female child at 133 Balornach Road, Glasgow, of which the said Alexander Ramsay was the father. … (Cond. 3) As the said Alexander Ramsay would not admit paternity of the said child the pursuer was compelled to raise an action of affiliation and aliment in the Sheriff Court of Lanarkshire, at Glasgow, against the said Alexander Ramsay. The action was defended nominally by the said Alexander Ramsay, and after a proof the pursuer obtained decree as craved … The defender was a witness for her nephew in the said action, and it is believed and averred that she instructed her own law agents … to conduct the litigation on Alexander Ramsay's behalf. The said Alexander Ramsay admitted in evidence that he was entirely without means and totally dependent upon the defender. The defender, it is believed and averred, stood in loco parentis to her said nephew. … (Cond.4) The pursuer's account of expenses, as taxed, amounts to £62, 12s, 9d. The pursuer called upon the said Alexander Ramsay to pay aliment under said decree, but he was unable to do so, and it is believed and averred that the aliment decerned for is being paid, on her nephew's behalf, by the defender. The defender, however, refuses to pay the pursuer's account of expenses incurred in prosecuting the said action. The pursuer avers that the whole instructions for the defence of the said action were given by the defender, that she directed the course of it and retained full control of the conduct thereof by her own law agents … The correspondence preliminary to the said action between the pursuer's advisers and Alexander Ramsay was wholly supervised by the defender herself on behalf of her nephew, and the instructions for the lodging of the defences to the pursuer's writ, and the resistance of her claim, were given by the defender alone. The defender herself opened all letters addressed to her said nephew preliminary to and concerning the said action without disclosing their contents to the addressee. She also instructed the denial of paternity and the lodging of defences to the said action without informing her nephew, the nominal defender, of the action she was taking. … The defender was thus the true dominus litis, and is therefore liable to the pursuer in the expenses occasioned in the said action …"
The pursuer pleaded:— "(1) The defender, having become responsible for the defence of the said Alexander Ramsay in the action mentioned on record, and being the true dominus litis of the defence therein, is liable to the pursuer in the expenses thereby occasioned. (2) The sum sued for being the amount of the expense occasioned to the pursuer in the action mentioned on record by the actings of the defender as the true dominus litis therein, decree should be pronounced therefor as concluded for."
The defender pleaded, inter alia:— "(1) The pursuer's averments, in so far as material, being irrelevant and insufficient to support the conclusions of the summons, the action ought to be dismissed."
On 5th June 1930 the Lord Ordinary(Moncrieff), after a hearing in the Procedure Roll, sustained the defender's first plea in law, and dismissed the action.
At advising on 14th November 1930,—
LORD JUSTICE-CLERK (Alness).—The pursuer in this case raised an action of affiliation and aliment in 1929 against one Alexander Ramsay, and obtained decree against him. The aliment decerned for was duly paid, but the expenses of the litigation were not paid. In this action the pursuer seeks to recover the amount of these expenses from the defender as domina litis. The defender is an aunt of Ramsay, with whom he lived at the time when the pursuer made her original claim against him, and in whose house the incident which formed its basis occurred. The defender in this action pleads that the pursuer's averments are irrelevant. The Lord Ordinary sustained that plea and dismissed the action, whereupon the pursuer reclaimed.
The controversy between the parties can be very simply stated, although its solution is by no means simple. The pursuer and the defender concur in the view that two ingredients are essential to the product of adominus litis, viz., control of the suit and an interest in its subject-matter. The defender admits, as I understood it, and certainly the Lord Ordinary has held, that the pursuer's averments of control are relevant. The point at which the pursuer and the defender part company is whether, on the pursuer's averments, such an interest on the part of the defender in the subject-matter of the action of affiliation and aliment is disclosed as will satisfy the requirements of the law.
It is to be observed in limine that the record contains no substantive averment by the pursuer of interest in the subject-matter of the suit on the part of the defender. The pursuer's counsel, however, argued that interest was a matter rather of inference from the circumstances averred than of substantive averment. Assuming that to be so—while by no means affirming that it is so—the question at once arises, What sort of interest will suffice, when coupled with control, to make a dominus litis? In connexion with that question many cases were cited, to some, at any rate, of which it is necessary to refer.
None of the cases, so far as I have been able to discover, deals in terms with the kind of interest which will suffice and the kind of interest which will not. The locus classicus, however, on the topic of dominus litis is, I...
To continue reading
Request your trial
-
Eastford Ltd V. Thomas Gillespie And Others
...litigation. That was insufficient to justify the conclusion that they were domini litis. (McCuaig v McCuaig 1909 SC 355; Cairns v McGregor 1931 SC 84; and Caledonian Produce (Holdings) Ltd v Price Waterhouse (op.cit.)). The third reason specified by the Lord Ordinary was that the reclaimers......
-
Petition Of Keith Veitch Anderson For Sanction To Raise Unfair Preference Proceedings In Terms Of Section 165 Of The Insolvency Act 1986
...on the ground that Hunter & Clark are in a position "akin to that of a dominus litis". In that connection he referred to Cairns v M'Gregor 1931 SC 84, at page 89, where Lord Justice-Clerk Alness cites as the locus classicus what had been said by Lord Rutherford in Mathieson v Thomson, 16 D.......
-
Richard Anderson As Executor Dative Of The Late Major W.a. Anderson V. Nicholson Bros+shetland Islands Council
...Thomson (1853) 16D 19 at page 23 and her reference in paragraph 28 to what Lord Justice Clerk Alness said in the case of Cairns v McGregor 1931 S.C. 84 at page 89. Counsel submitted that these cases demonstrated that if a party had an interest in the subject matter of the cause and, through......
-
Mrs. Patricia Anderson V. Shetland Islands Council+scottish Water
...circumstances did not show that Mr Anderson was dominus litis. The matter was settled by the Inner House in the case of Cairns v McGregor 1931 SC 84 and that had recently been applied by the Inner House in the case of Eastford Ltd. There were two ingredients required, namely interest in the......