Swirles v Isles
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1930 |
| Docket Number | No. 95. |
| Date | 20 March 1930 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION. Sheriff of the Lothians and Peebles.
ExpensesParties liable for expensesDominus litisHusband and WifeAction against wife by third partyHusband having interest in and control of actionSeparate action for expenses against husband.
An action was brought against a married woman by her landlord, concluding for decree of removing from a house occupied by the defender and her husband. The husband instructed his law agent to defend the action, and to appeal against the Sheriff-substitute's decision; and he paid his law agent's expenses. The defence stated was, inter alia, that the husband, and not the wife, was tenant of the house. Decree of removing, with expenses, was granted against the wife, but no expenses were recovered from her. Thereafter the pursuer brought a separate action, for payment of the expenses awarded in the first action, against the husband as dominus litis.
Held that the husband was liable as dominus litis, and that a separate action to enforce liability against him was competent.
Opinion, per the Lord President, that, if the wife had been the pursuer in the original action, a separate action for expenses against the husband would have been incompetent.
Opinion contra, per Lord Sands.
On 3rd July 1928 Miss Elizabeth Craig Swirles, 23 Lauderdale Street, Edinburgh, brought an action in the Sheriff Court at Edinburgh against Andrew Reginald Isles, 6 St Vincent Street there, in which she craved the Court to grant decree against the defender for the sum of 83, 4s. The sum sued for was the taxed amount of the pursuer's expenses in an action of removing which she had raised in 1925 against the wife of the defender, and in which decree, with expenses, had been granted in favour of the pursuer.
The pursuer pleaded, inter alia:"(1) The defender being the true dominus litis in the said action, the pursuer is entitled to decree, with expenses. (2) The real interest in said last-mentioned action being in defender, and he, having instigated and directed said defence, is liable in the sum sued for, with expenses."
The defender pleaded, inter alia:"(2) The material averments of the pursuer being unfounded in fact, absolvitor should be granted."
The Sheriff-substitute (Orr) allowed a proof. Thereafter, on 27th March 1929, he found in fact "(1) that the present pursuer in July 1925 raised an action of removing against Mrs Jessie May Isles, wife of the defender, from the house at 23 Lauderdale Street, Edinburgh, which the said parties then occupied as a dwelling-house; (2) that the present defender, as husband of the said Mrs Jessie May Isles, and occupying said house with her, had an interest in the said cause; (3) that the present defender gave instructions to his law agent to lodge defences in said cause in the name of the said Mrs Jessie May Isles, and to carry on said defence to judgment, and thereafter to appeal the decision pronounced against the said Mrs Isles, and paid the expenses claimed by his law agent in the conduct of said defence; (4) that defender, by his said interference and control over the defence in said litigation, caused expense to the present pursuer; (5) that pursuer obtained decree as craved in said litigation, with expenses against the said Mrs Jessie May Isles, but has been unable to recover said expenses owing to the said Mrs Isles having no assets"; found in law "that defender was dominus litis in the conduct of said defence"; sustained the pursuer's first and second pleas in law; and granted decree for the sum sued for.
It appeared from the Sheriff-substitute's note that the defence stated in the previous action was, inter alia, that the present defender, and not his wife, was the tenant of the house from which decree of removing was sought.
The defender appealed to the Sheriff (Brown), who allowed him to amend the record by adding averments that a separate action was incompetent, and by stating the following additional plea in law:"(3)Esto that the case for the pursuer is that the defender should be found liable in the sum sued for because he was an active participant with his wife in the defence of the third action, the action, if laid on that ground, falls to be dismissed (1) as incompetent, and also (2) on the ground that the pursuer is now barred from maintaining any such case."
Thereafter, on 27th November 1929, the Sheriff repelled the additional plea for the defender, and quoad ultra adhered to the interlocutor of the Sheriff-substitute.
The defender appealed to the Court of Session, and the case was heard before the First Division on 7th March 1930.
LORD PRESIDENT (Clyde).This is an action to recover from the defender the expenses decerned for against his wife in a former action of ejectment in which she was the only defender called. The grounds of the present action are those which are familiar in the case of a similar action raised against a stranger third party who is alleged to have been the true dominus litis.
There is no precedent for an action of this kind against a husband. The liability of a husband for the expenses of a litigation promoted by, or forced upon, his wifelike the liability for similar expenses of a parent or a guardianis properly part of the law of personal relations; while the liability of a stranger third party, who is the true, but hidden, litigant in a suit ostensibly conducted in someone else's...
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Cairns v McGregor
...and I think the action ought to be dismissed as irrelevant. The Court adhered. 1 Hepburn v. TaitUNK, (1874) 1 R. 875; Swirles v. IslesSC, 1930 S. C. 696, Lord President Clyde at pp. 699and700, Lord Sands at p. 702; Fraser v. MallochUNK. (1896) 23 R. 619, Lord Kyllachy at p. 620; Kerr v. Emp......