M'Millan v Mackinlay
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1926 |
| Date | 19 March 1926 |
| Docket Number | No. 66. |
| Court | Court of Session |
Ld. Constable, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
ExpensesParties liable for expensesHusband and WifeAction by wife against third partyHusband's liability for expensesHusband promoting litigationMarried Women's Property (Scotland) Act, 1920 (10 and 11 Geo. V. cap. 64), sec. 3 (1).
In an action brought by a married woman against a third party, the Lord Ordinary assoilzied the defender; and, on a reclaiming note, the Court adhered. The defender then moved that the pursuer and her husband should be found jointly and severally liable in expenses.
Held that, notwithstanding the provision of sec. 3 (1) of the Married Women's Property (Scotland) Act, 1920, which entitles a married woman to sue and be sued as if she were not married, the pursuer's husband, in respect that he had actively participated in the litigation, fell to be made jointly and severally liable in expenses along with his wife.
Held further that, as no motion had been made in the Outer House for an award of expenses against the husband, the award now made should be limited to the expenses in the Inner House.
On 13th May 1924 Mrs Helen Kyle or M'Millan, wife of and residing with William M'Millan, 25 Woodrow Street, Pollokshaws, Glasgow, brought an action against Robert Mackinlay, Doctor of Medicine, Newton Mearns, Renfrewshire, concluding, inter alia, for declarator that a strip of ground or lane at Newton Mearns belonged heritably to the pursuer, and for removal of a coalhouse belonging to the defender and erected on the strip of ground.
On 4th May 1925 the Lord Ordinary (Constable), after a proof, assoilzied the defender from the conclusions of the action. At the proof the husband gave evidence at length, while the wife was not a witness. It also appeared that the husband had himself made the matter litigious by taking down a fence and erecting a wall on ground which, it was eventually established, belonged to the defender.
In the Outer House no motion was made for an award of expenses against the pursuer's husband, and the Lord Ordinary found the pursuer liable in expenses.
The pursuer reclaimed, and the case was heard before the Second Division on 4th, 5th, 9th, and 10th March 1926.
On 11th March the Court adhered. Counsel for the defender moved the Court to hold the pursuer and her husband jointly and severally liable in expenses.
The motion for expenses was heard on 16th March 1926.
Argued for the defender;The pursuer's husband had actively participated in the action and was therefore liable in expenses. The Married Women's Property (Scotland) Act, 1920,* did not affect the matter. It merely abolished the jus administrationis and curatorship of the husband, and enabled a married woman to sue without her husband's consent. But the husband's consent was a mere formality, and it was not his consent that rendered him liable in expenses. His liability depended on relationship and the fact that he had actively participated in his wife's action, which was the case here.1
Argued for the pursuer;Prior to the Act of 1920 the husband required to give his consent and concurrence to the wife's action. The only question then was. Had he actively participated in the litigation? Now that the husband's consent and concurrence was unnecessary, he stood in the same relation to his wife in regard to an action raised by her as a third party, and ought not to be found liable in expenses unless he had acted as dominus litis. In the present case the pursuer's husband had not acted as dominus litis, and, accordingly, should not be found liable in expenses. In any event, no motion had been made for an award against him in the Outer House, and, accordingly, any award against him should be limited to the expenses incurred in the Inner House.2
At advising on 19th March 1926,
Lord Justice-Clerk (Alness).In this case counsel for the successful defender moved the Court to find the pursuer and her husband jointly and severally liable in the expenses of the action. The ground on which counsel based his motion was that the latter was an active participant in the litigation.
A similar motion has been made in many cases. In them the fact that
the action was brought with the consent and concurrence of the husband was founded on. As I read the decisions, that fact has always been regarded by the Court as inconclusive in itself. The presence of such consent has not been regarded as fixing the husband with a joint liability for expenses, and, equally, the absence of his consent has not been held to exempt him. The matter has throughout been regarded as one of circumstances. So regarding it, the Court has more than once found the husband liable jointly with his wife for expenses, on the ground that he has actively participated in the suit. That ground of liability seems to me to be quite independent of whether or not the husband had consented to his wife's action. In MaxwellSC1 Lord M'Laren said (at p. 641):The impression left on my mind when I tried the case certainly was that the husband was an active litigant, and he supported his wife's claim by evidence which the jury must have disregarded when they considered their verdict. I am therefore of opinion that he is liable in expenses in respect of his conduct as a litigant. Again in MacgownSC2 Lord M'Laren said (at p. 636):But I venture to think that a very moderate amount of interference by the husband in the conduct of his wife's case will be enough to make him the dominus litis, for in view of the relationship between the parties it may safely be assumed that there has been more interference than is disclosed in the proceedings. At all events, if the husband acts at all, he can hardly interfere in his wife's affairs without making himself responsible. Again in M'Ilwaine3 Lord President Strathclyde said (at p. 941):The ground of judgment is that the husband here has taken a prominent and active part in the litigation and, indeed, as we see from the notes of evidence before us, appeared as a witness on his wife's behalf. The last consideration, to which the Lord President obviously attached great importance, might no doubt lose its force if it were suggested that the husband had been compelled, under citation...
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