Lord Hamilton v Glasgow Dairy Company
| Jurisdiction | Scotland |
| Judgment Date | 09 November 1932 |
| Docket Number | No. 3. |
| Date | 09 November 1932 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Moncrieff.
ExpensesAbandonmentAbandonment conditional on payment of "full expenses" to defenderWhether expenses of previous unsuccessful appeal by defenders includedCourt of Session Act, 1825 (Judicature Act), (6 Geo. IV. cap. 120), sec. 10.
The Court of Session Act, 1825 (Judicature Act), by sec. 10, enacts that, after the record in an action is closed, the pursuer shall have it in his power "to abandon the cause on paying full expenses or costs to the defender."
Held that "full expenses or costs" are limited to the expenses which a defender could have recovered from the pursuer under a decree of absolvitor with expenses, had the action not been abandoned.
Held, accordingly, that a pursuer, abandoning an action after the record was closed but before the case went to jury trial, was not bound to pay to the defenders the expenses incurred by them in a reclaiming note and a House of Lords appeal relating to the allowance of an issue, in both of which the defenders had been unsuccessful.
Lockhart v. LockhartUNK, (1845) 7 D. 1045, andNobel's Explosives Co. v. British Dominions General Insurance Co., 1919 S. C. 455, followed.
Stewart v. StewartUNKSC, (1906) 8 F. 769, commented on and distinguished.
(Reportedante, 1930 S. C. 683, and 1931 S. C. (H. L.) 67.)
Lord Hamilton of Dalzell brought an action against (first) the Glasgow Dairy Company, Limited, 8 Ashley Street, Glasgow, and (second) Arthur Gilmour, C.A., 8 Ashley Street, Glasgow (who was the secretary and manager of the Company), concluding for decree against the defenders, jointly and severally, for the sum of 4000 as damages for slander.
On 12th December 1929 the Lord Ordinary (Moncrieff) dismissed the action, on the ground that the pursuer had failed to make a sufficient averment of malice (vide 1930 S. C. 683).
The pursuer reclaimed, and, on 20th March 1930, the First Division recalled the interlocutor of the Lord Ordinary; allowed an issue; and found the defenders jointly and severally liable to the pursuer in the expenses of the reclaiming note (vide 1930 S. C. 683).
The defenders appealed to the House of Lords, who, on 23rd March 1931, dismissed the appeal with costs (vide 1931 S. C. (H. L.) 67).
After sundry procedure, the Lord Ordinary, on 18th July 1931, appointed the trial to proceed on 15th December 1931.
The pursuer subsequently lodged a minute abandoning the action in terms of section 10 of the Judicature Act, 1825,1 and the Lord Ordinary, on 24th November 1931, in respect of the minute,
allowed the defenders to give in an account of expenses and remitted the account to the Auditor for taxationThe defenders included in their account the expenses incurred by them in the reclaiming note and in the House of Lords appeal, including the sum paid to the pursuers in respect of their expenses in that connexion. The Auditor having disallowed these items, the defenders lodged objections to his report.
On 20th October 1932 the Lord Ordinary, having heard counsel, repelled the defenders' objections; approved of the report; and decerned against the pursuer for payment to the defenders of the taxed amount of the account.
LORD PRESIDENT (Clyde).In this actionan action for slanderboth the question of relevancy and the appropriate form of issue were contested, first in this Court, and then in the House of Lords on appeal.17 The defenders were unsuccessful, and the expenses in connexion with these matters (both in this Court and in the House of Lords) were the subject of decerniture against the defenders; and the defenders paid those expenses to the pursuers accordingly. Soon after the case came back to this Court for trial, the pursuer put in a minute of abandonment under the Judicature Act of 1825.18 As your Lordships are aware, the right of abandonment which is given by the Judicature Act18 is one which is conditional on payment of what the statute calls "full expenses" by the party abandoning; and, on the fulfilment of that condition and the consequent dismissal of the action in...
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