19 - Interim Awards of Expenses

Summary

There seems to be little doubt now that a motion for an interim award of judicial expenses is competent in the Court of Session, which award can be for a specific sum without the need for taxation. The position, however, is less clear for Sheriff Court proceedings due to the different wording of the relevant rules.

Motions for interim awards of expenses are relatively rare, there being only a handful of reported decisions, all from the Court of Session.

The rules of the Court of Session provide that where expenses are found due to a party in any cause the court shall:

• (a) pronounce an interlocutor finding that party entitled to expenses and subject to there being no modification in legal aid cases, remit the cause to the auditor for taxation; and

• (b) unless satisfied there is special cause for not doing so, pronounce an interlocutor decerning against the party found liable in expenses as taxed by the auditor. This is without prejudice to the right to object to the auditor’s report.

Therefore, on the face of it, a taxation is required for any award of expenses, whether interim or final.

It is commonplace for awards of expenses to be made against a party who, for example, is unsuccessful in moving or opposing a motion, or who loses a procedure roll hearing, or who creates needless procedure during the course of an action. And all practitioners in the Court of Session will be familiar with the standard wording of the interlocutor that follows on from that, ‘remits the account to the auditor to tax and report. And decerns’.

Decerniture simply means a decree or sentence of a court. So, the rule simply confirms that as soon as the account of expenses is taxed, and in the absence of any objections to the auditor’s report, a decree for the taxed amount shall automatically follow.

The position in Sheriff Court ordinary actions is set out in the two versions of the Act of Sederunt (Sheriff Court Ordinary Cause Rules) 1993 (OCR) r. 32.1.

For actions commenced prior to 29 April 2019 the rule states:

32.1 Expenses allowed in any cause, whether in absence or in foro contentioso, unless modified at a fixed amount, shall be taxed before decree is granted for them.