Sequestration. The trustee appealed to the Second Division of the LANARKSHIRE. Court of Session, who, of consent, varied the Sheriff- Leckie's Substitute's judgment as given above by allowing the appellants an ordinary ranking for the " balance," instead of the "full amount" of their claim. For appellants-Mr. W. STEVENSON COCHRAN (Messrs. Wм. For trustee-Mr. ALEXANDER CRAWFORD (Messrs. DOAK & SHERIFF COURT OF ABERDEENSHIRE. Workmen's Compensation Act, 1897-Expenses — The minuter (Mr. Urquhart, solicitor, Bervie) acted as agent for the pursuer. The Sheriff-Substitute, by interlocutor dated 7th March, 1906, found the pursuer entitled to No. 11. ABERDEENSHIRE. Mowat v Peter. ABERDEENSHIRE. Compensation at the rate of 9s. 3d. fortnightly as from 24th Mowat v Peter. May, 1905, until the further orders of Court, and found the defender entitled to expenses, but did not order these to be paid out of the compensation money. The Sheriff-Principal, on appeal, confirmed this by interlocutor of date 3rd April, 1906. The Sheriff-Substitute, by interlocutor of date 11th April, 1906, found the agent for the pursuer entitled to his expenses out of the amount of compensation, and remitted the account of the said expenses to the Auditor of Court for taxation and report-all in terms of sub-sec. 12 of the Workmen's Compensation Act, 1897. The defender states that, on or about 27th April, 1906, he settled the case direct with the pursuer and his father. The minuter accordingly respectfully craves the Court to sist him as a party to the case, in order that he may obtain decree for his expenses against May 14, 1906. Sheriff ROBERTSON. the defender. The interlocutor of the Sheriff-Substitute (ROBERTSON) was as follows: ABERDEEN, 14th May, 1906.-Having heard parties on the minute for the pursuer's agent, allows the same to be received, and allows the defender to answer the same, if so advised, within five days, and grants leave to appeal. DUNN. ROBERTSON. Note. The chief difficulty I have here is that I am now informed there was no prior intimation of the motion made on 11th April. Of course, the pursuer's agent might reasonably be considered as representing the pursuer; still, the motion made was against the pursuer's interests, and he might not unreasonably have been otherwise represented, or, at least, have had intimation that the motion was to be made. Still, I cannot say that the motion could not be granted without prior intimation-there being statutory authority for it, and I, of course, being acquainted with all the circumstances. It might also be suggested that intimation should have been made to the defender. But so far as known the defender at that time had no interest in the matter; he had to pay 9s. 3d. a fortnight, and it did not matter to him to whom he paid it. In point of fact, the defender's agent happened to be present when the motion was made, but he had had no intimation, and did not interfere. It was argued that under the statute a decree against the defender as now asked was incompetent. It is true that nothing is said authorising such a decree, but, keeping in view the provisions of the statute, unless such a decree was competent, gross hardship might be occasioned in such a case as the present to the pursuer's agent. He conducts the case, and is largely out of pocket, and, though here he hap Sheriff ROBERTSON. pened to lose the main question at issue, still, there is a sum ABERDEENSHIRE. decerned for as payable to the pursuer in the action. I thought Mowat v Peter. it only fair that the pursuer's agent should be paid his May 14, 1906. expenses out of this sum, and made the order in terms of sec. 12 of the Act. Whether I should have given the full amount if the pursuer had appeared and objected I do not say, but it is not impossible. After the order is pronounced it is ascertained that the pursuer and defender have met and settled the matter themselves by payment to the pursuer of a slump sum. This, of course, would cut out the pursuer's agent altogether, and deprive him of his costs out of the compensation money which he has been found entitled to. By entering into this bargain without the knowledge of either agent the defender has, of course, deprived the pursuer's agent of the right given him by me in accordance with the statute, and, that being so, in my opinion, the undoubted common law right of an agent in an ordinary action to sist himself and ask for his expenses in such circumstances will apply. And if the defender by his action has defeated the agent's right, I see no reason in equity why he should not be decerned against for the expenses which the agent has been found entitled to. These are my views on the point, which I have expressed at this stage in order to allow either party to appeal, if desired. Of course, if I am right, the subsequent interlocutor would require to be carefully framed, as the pursuer's agent can claim no more for expenses than the pursuer can claim as compensation, and the pursuer's compensation may cease at any time. I cannot regard this necessary result, as it seems to me, as satisfactory; and possibly enough sec. 12 was not intended to apply to cases where there was only a weekly payment allowed. But there is no distinction made, and there is no doubt that the hardship on the agent is equally great in either case if he is deprived of even his out-of-pocket expenses. D. R. Sheriff CRAWFORD. ABERDEEN, 20th July, 1906.-Having considered the July 20, 1906. cause, sustains the appeal; recals the interlocutors of 11th April and 14th May, 1906; refuses the motion and the prayer of the minute, and decerns; finds that the compearer, R. H. Urquhart, is liable to the defender in the expenses of the appeal. D. CRAWFORD. Note. This was an action of damages at common law and alternatively under the Employers' Liability Act. The defender denied liability, but on record tendered compensation under the Workmen's Compensation Act, 1897. The defence was successful, and the defender was found entitled to his expenses. The Court proceeded in terms of sec. 1 (4) of the Act to assess compensation under the Act, and declined July 20, 1906. Sheriff CRAWFORD. ABERDEENSHIRE. to make any deduction from the assessment on account of Mowat v Peter. the cost of the proceedings. Thereafter the pursuer's agent, as an individual, without instructions from the pursuer, and without giving notice to either of the parties, moved the Sheriff-Substitute to find him entitled to his expenses as agent for the pursuer out of the amount of compensation, all in terms of sec. 12 of schedule II. to the Act. That is one of the interlocutors that I have recalled. The motion appears to me to have been incompetent on two grounds. First, the motion was one which in my judgment required notice to the parties, and especially to the pursuer; and, secondly, an award under sec. 12, which is mainly for the protection of pursuers, is only competent on the application of either party. If it be said that this requirement ought to be interpreted in a somewhat elastic way if the agent is not to be debarred from his claim, then it is all the more clear that notice was indispensable, though it is by no means certain that such latitude is permissible. The next step in judicial procedure was a minute by Mr. R. H. Urquhart, stating that he acted as agent for the pursuer, and that the defender stated that on or about 27th April, 1906, he settled the case direct with the pursuer and his father, and craving to be sisted as a party to the case in order that he might obtain decree for his expenses against the defender. The Sheriff-Substitute by his interlocutor of 14th May allowed the minute to be received, and the defender to answer it if so advised. I may observe in passing that this last proceeding by minute is not in my opinion free from irregularity, though I daresay that might be easily cured. The agent in a cause is under considerable responsibility to the Court for its proper conduct, and the agent who signed the pleadings was Mr. Munro. I doubt whether the name of another agent can be properly substituted in so informal a manner. But passing from that, the question now is whether the defender, who was found entitled to his expenses in the action, is to be made liable for the costs of the pursuer's agent in the same action in virtue of a clause in the Workmen's Compensation Act, though the action was raised at common law or alternatively under the Employers' Liability Act, and not under the Workmen's Compensation Act at all. The SheriffSubstitute in his note has indicated an opinion favourable to the agent's contention, though he has not pronounced a decision. It may be well to state the figures of the sums in dispute. The pursuer's compensation was assessed at 9s. 3d. per fortnight. The settlement of the defender with the pursuer is said to be a payment of £50, with a promise to help him to get employment. The expenses of the pursuer's agent are estimated to be not less than between £40 and £50. The agent's application is rested on sec. 12 of schedule ABERDEENSHIRE. II. of the Act, and in my opinion the charges to which an Mowat v Peter. award of compensation under the Act is liable must be deter- July 20, 1906. mined by the terms of the Act itself, and that no light is to be derived from decisions as to the rights of agents to recover their costs in actions at common law. I am of opinion that this application must fail on two distinct grounds. First, I have to consider the contention of the defender that the claim is excluded by sec. 14 of schedule I. exempting the award of compensation from any charge. That exemption is not absolute, as is shown by the terms of sec. 1 (4) of the Act; and the terms of sec. 12 of schedule II. are general, and cannot be said to be expressly limited to weekly payments as distinguished from payments in a lump sum. At the same time, the terms of sec. 14 are significant and binding as to the policy and intention of the Act. The compensation awarded to a workman is intended to be paid to him intact, subject to no charge, and only in most exceptional cases expressly provided for will such a charge be permitted. That is a special object of the Act. Accordingly, I think that a deduction under sec. 12 would rarely be allowed, except from a lump sum of considerable amount, which would leave a subsistence to the workman after deduction, and ought never to be allowed where the award is the barest subsistence of 4s. 74d. a week, or where the equivalent accepted in a capital sum is only £50. But, secondly, I am of opinion that sec. 12 applies only to expenses incurred in a proceeding under the Workmen's Compensation Act. The costs now claimed were not incurred in such a proceeding. An action at common law and under a different Act can only be linked to the Workmen's Compensation Act by statute, and only to the statutory extent. That has been done at two points under sec. 1 (4), one authorising the assessment without a fresh proceeding, and the other relating to expenses on obviously equitable grounds. Accordingly, in my view it would be entirely incompetent to charge the pursuer's award with the costs of agency in an action not brought under the Act. His weekly payment was intact and free from all charge, and in my view the equivalent of it, so long as ear-marked, is equally so. The action as raised was a fair one to raise. It was not in an objectionable sense a speculative action. But we are all familiar with the evils and the possible injustice, not only to defenders but pursuers, of actions of damages raised by persons without means, evils which the Legislature has often desired to check, and which it was at least an incidental object of the Workmen's Compensation Act to diminish. But if, in the common case where the conclusions of such an action are resisted, but liability under the Workmen's Compensation Act is admitted. Sheriff CRAWFORD. |