Scottish Court of Session Decisions

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Cite as: [1835] CA 13_451

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SCOTTISH_Shaw_Court_of_Session

Page: 451↓

Hogg

v.

Balfour No. 141.

Court of Session

1st Division D.

Feb. 11 1835

Ld. Fullerton, Lord Gillies, Lord Mackenzie, Lord Balgray.

James Hogg, Pursuer.— A. M'Neill— Robinson. J. G. L. Balfour, Defender.— D. F. Hope— Wilson.

Subject_Expenses—Auditor.—

Where a party was found entitled to expenses, and a sum was struck of at taxing, which considerably exceeded one-fourth of all that was id-lowed; the Court subjected the party in one-half of the auditor's fee.

James Hogg, boot-maker in Edinburgh, being found liable in expenses to J. G. L. Balfour, W.S., the account was submitted to taxation, and a sum of £128 was struck off, leaving a little more than £400 as the taxed amount. Hogg was charged a fee of £9, 7s. 6d. for the auditor's trouble in taxing. He objected to this, on the ground, that, where so large a sum had been taxed off, part of the fee of the auditor should be paid by the party whose excessive charges had added so much to the auditor's trouble in taxing. This was the more necessary, as the auditor's fee was fixed by a per centage on the amount of the account claimed, without reference to the net amount allowed after taxation. Balfour answered, that the practice was invariable to subject the losing party in the auditor's fee; and that this was proper, as the taxation was for his behoof.

Lord Gillies.—If that be the practice, it appears to me to be, in some cases at least, so objectionable, that I am not prepared to follow it unless there be an Act of Sederunt making it imperative. The fee is regulated by the amount of the account claimed. Every item disallowed must be held to hare been improperly claimed; and yet if £1000 be claimed, and only £100 be allowed, it is said that the party against whom so unreasonable a demand was made, must pay ten times as large a fee as he would have been liable for, if the proper account alone had been claimed and taxed. In this way, he is made to bear the whole burden of the fault of another party. That would be most unjust; and I think the whole of the auditor's fee ought not, in this case, to be laid on the objector.

Lord Mackenzie.—In an ordinary case, the general rule may be proper enough; but it is different where so many disputed items are discussed and disallowed.

Lord Balgray.—I think each party ought, in this case, to pay one-half of the fee.

The Lord President and the other Judges concurred in this suggestion, and the Court found Hogg liable only in one-half of the fee to the auditor.

Solicitors: J. Souter, W.S.— A. Wilson, S.S.C.—Agents.

SS 13 SS 451 1835

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