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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Scott v Beaton. [1834] CA 13_202 (16 December 1834)
URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0202.html
Cite as: [1834] CA 13_202

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SCOTTISH_Shaw_Court_of_Session

Page: 202

Scott

v.

Beaton.
No. 67.

Court of Session

1st Division

Dec. 16 1834

Lord President, Lord Gillies, Lord Mackenzie, Lord Balgray

Scott. Robertson. Beaton and Others. Cuninghame.

Subject_Expenses—Jury Trial.—

A pursuer made up a record claiming special damage, as well as £500 for injury to his commercial credit; he gave up the claim of special damage before the jury, who, in reference to his demand for £500, found a verdict for £5: held entitled to expenses, but these modified from £212 to £100.

Scott * raised an action of damages, libelling not only special damage to property, but also injury to his commercial credit. The damages were laid at £500. A record was made up, in which the demand for special damage was insisted in, and it was not till the opening speech at the jury trial that Scott gave up this claim. The jury assessed the other damages at £5. When Scott moved to have the verdict applied, and expenses found due to him, the defenders objected, both on the ground that they had been put to the expense of making up a record, and preparing witnesses, to meet a claim for special damage which had been given up, and also on the general ground, that where a party demands £500 of damages, and only recovers £5, he ought in general to be allowed his expenses, only subject to modification.

Scott answered, that no extra expense had been incurred in making up the record, in consequence of its containing a claim of special damage; that in so far as a claim was made for reparation, on account of injury to commercial credit, the usual practice had been followed of claiming a random sum of damages; and that as the defenders had never made a tender of any sum whatever, he had no alternative but to go on with his action, which occasioned the same outlay for a small as for a great sum of damages.

Lord Moncreiff, before whom the case was tried on circuit, sat along with the Judges of the Inner House when the motion was disposed of. His Lordship stated, that he considered the pursuer entitled to his expenses, but subject to modification. The Court found the pursuer entitled to expenses, reserving power to modify these after the account should be taxed. The account was taxed at £212, of which it was said that £l56 was actual outlay. The question of modification was then discussed.

_________________ Footnote _________________

* The first advising of this case is already reported, ante, p. 89. It was again more fully considered, of this date.

Lord President.—It is clear that the pursuer insisted in a claim of special damage down to the trial itself, when he gave up that claim. It is matter of much regret to see so heavy expenses incurred in a case which results in a verdict assessing the just amount of damages at a matter of £5.

Lord Gillies.—A sum of £500 was demanded, and a sum of £5 was found due. It is said to be a common practice to make a random demand, but I cannot approve of it in this case. One obvious evil which it creates is this, that it makes a cause competent to be tried before the highest tribunal, and, of course, at the greatest expense, though the real sum due may be so small, that a demand for it might have been disposed of before an inferior court. I think a defender is thereby exposed to great hardship. I am strongly inclined to modify the expenses due to the pursuer.

Lord Mackenzie.—I concur in the observations of Lord Gillies; and I do not think it a sufficient answer to say that the defenders had the power of making a tender of a reasonable sum. That will not justify the pursuer in making an excessive and exorbitant demand. I think it clear also that the pursuer attempted to make this a case of special damage, in which he failed.

Lord Balgray concurred in the propriety of modifying the expenses.

The Court accordingly modified the expenses to the sum of £100.

SS 13 SS 202 1834


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