Kerr v Employers’ Liability Assurance Co Ltd: SCS 1902

An injured workman who had obtained an award of damages and expenses against his employer sought, after the employer became insolvent, to obtain an award of expenses against the insurer. It was accepted that, under the policy, the insurers had complete control of the conduct of the defence, that they had exercised such control, and that they also had the entire interest in the subject-matter of the action.
Held: The insurer liable for the expenses of the action on the basis that it was the dominus litis. Lord President Robertson stated: ‘The next point is this, what is the ground upon which a dominus litis is made liable in expenses? As I take it, it is simply the ground upon which everybody is made liable in expenses, and it is stated thus by Lord Jeffrey in Irvine v Kilpatrick (1847) 10 D 367 – ‘If any party is put to expense in vindicating his rights he is entitled to recover it from the person by whom it was created,’ – that is to say, by whom the expense was created.’
Lord President Robertson stated: ‘Now, if anybody other than the person whose name is printed as party in the record can be the dominus litis, I think this assurance company was. To begin with, to the person whose name was used it was immaterial whether the result of the action was success or failure; he was completely covered by his policy of assurance, and accordingly the assurance company very naturally stipulated in their contract that they, and not he, should have the control of the action, and should, of course, incur all liabilities resulting from that position. There are valuable illustrations, in the cases, of the relations which might constitute a man a dominus litis, but I do not cite any of them, for this reason, that I think that not one of them is clearer than, or, indeed, so clear as, the present case, of an assurance company who begin by stipulating that the insured shall give his name to them in order that they may conduct the action, and where, from that point onwards, he has nothing whatever to do with the conduct of the case. Therefore, that the assurance company was the dominus litis in this matter seems to me to be beyond all doubt.’


Lord President Robertson


(1902) 2 F 17




Appeal fromKerr v Employers Liability Assurance Co, Ltd SCS 20-Oct-1899
An employer was insured against liability for accidents to his workmen under a policy containing a condition that if proceedings were taken to enforce any claim the insurance company should, if they so desired, ‘have the absolute conduct and control . .

Cited by:

CitedTravelers Insurance Company Ltd v XYZ SC 30-Oct-2019
Challenge to the making of a non-party costs order under section 51 of the Senior Courts Act 1981 against the product liability insurer of one of the defendants in litigation being managed under a Group Litigation Order (‘GLO’). Many of the . .
Lists of cited by and citing cases may be incomplete.


Updated: 04 May 2022; Ref: scu.676873